environmental justice and land use planning and zoning

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Environmental Justice And Land Use Planning And Zoning Environmental Justice And Land Use Planning And Zoning

Patricia E. Salkin Touro Law Center, [email protected]

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Recommended Citation Recommended Citation 32 Real Est. L.J. 429 (2003)

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Zoning andLand UsePlanningPATRICIA E. SALKIN, ESQ.*

ENVIRONMENTALJUSTICE AND LAND USEPLANNING AND ZONING

In the Spring of 2003, I hadthe privilege of working with ateam at the National Academyfor Public Administration(NAPA) on a study, Address-ing Community Concerns:How Environmental JusticeRelates to Land Use Planningand Zoning (2003). This col-umn is in large part excerptedfrom Chapter 4 of the report,representing my contribution tothe collective e�ort. The fullreport is available on theNAPA web-site(www.NAPAWASH.org) and

contains a number of case stud-ies from across the country, aswell as a series of recommen-dations for all levels of govern-ment to begin to open a healthydialogue on how to best ad-dress the serious challenges ofenvironmental justice throughlocal land use planning andzoning decisionmaking.

INTRODUCTION

As noted in a recent analysisof the importance of local landuse laws to achieve sustainabil-ity, environmental justice goesto the core of traditional land-use decisions, such as: choos-ing sites for locally unwantedland uses (geographic equity);the process for deciding whereto site these unwanted landuses, including the location andtiming of public hearings (pro-cedural equity); and sociologi-cal factors, including whichgroups hold the political powerinherent in land-use decisions(social equity).1

Even following the enact-ment of the Civil Rights Act of

*Patricia E. Salkin is Associate Dean and Professor of Government Law atAlbany Law School where she also serves as director of the Government LawCenter. She is the author/editor of several West publications including NewYork Zoning Law and Practice (4th ed.); the Zoning and Planning Law Report;the New York Zoning Law and Practice Report; and the Zoning and PlanningLaw Handbook. The author is grateful to Albany Law School student LavondaCollins for her research assistance.

1See Patricia E. Salkin, ‘‘Land Use,’’ in Stumbling Towards Sustainability(Dernbach, ed.) (ELI 2002) at 374, citing Robert R. Kuehn, ‘‘A Taxonomy ofEnvironmental Justice,’’ 30 ELR 10681 (Sept. 2001); Robert Bullard, ‘‘Level-

429

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1964, ‘‘the property regulation,planning, and zoning policiesof many cities around the coun-try had what must be called anegative impact on EJ.’’2 Oneresearcher notes that ‘‘zoningtends to act as the ‘gatekeeper’in terms of where noxious usescan be legally sited within amunicipality, but the rami�ca-tions of zoning on environmen-tal health and equity have beensomewhat hidden.’’3 Yet, plan-ning and traditional land-usecontrol laws—including coor-dinated environmental reviewwith local government ac-tions—can serve as more pro-active measures to address en-vironmental justice concerns.4

As one scholar has noted: ‘‘The

next frontier for both the move-ment and the focus of environ-mental justicescholarship. . . .is land useplanning.’’5

For more than eighty years,local o�cials have held thepower to control the use of landby making decisions aboutwhat could be located where ina given area. The Euclid deci-sion,6 followed by the promul-gation of the Standard CityPlanning Enabling Act in 1928,set the foundation of state au-thority over planning andzoning.7 Because, in almostevery state, decisions on landuse planning and adoption ofland use laws to implementthese plans is entirely a func-

ing the Playing Field Through Environmental Justice,’’ 23 Vt. L. Rev. 453(1999). See also Paul M. Hendrick, ‘‘Racism in American Land Use Deci-sions: The Slicing of the American Pie,’’ 2 Fla. Coastal L.J. 395 (2001), andCraig Anthony Arnold, ‘‘Land Use Regulation and Environmental Justice,’’30 ELR 10395 (June 2000).

2Michael B. Gerrard, ‘‘Environmental Justice and Local Land Use Deci-sionmaking,’’ in Trends in Land Use Law from A to Z: Adult Uses to Zoning(Salkin, ed.) (American Bar Association 2001).

3See Juliana Maantay, ‘‘Zoning law, health, and environmental justice:what’s the connection?,’’ 4 J. of Law, Medicine and Ethics 572 (December2002).

4Cli�ord Rechtscha�en and Eileen Gauna, Environmental Justice: Law,Policy & Regulation 297 (Carolina Academic Press 2002).

5Craig Anthony Arnold, ‘‘Planning Milagros: Environmental Justice andLand Use Regulation,’’ 76 Denver U. L.R. 1 (1998).

6Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 47 S. Ct. 114,71 L. Ed. 303, 4 Ohio L. Abs. 816, 54 A.L.R. 1016 (1926).

7Advisory Committee on City Planning and Zoning, U.S. Department ofCommerce, A Standard City Planning Enabling Act (U.S. G.P.O. 1928); andAdvisory Committee on City Planning and Zoning, U.S. Department of Com-merce, A Standard Zoning Enabling Act (U.S. G.P.O. 1926 rev. ed.)

430 REAL ESTATE LAW JOURNAL [VOL. 32: 429 2003]


tion of local government, it iscritical to examine the relation-ship between the legal andregulatory schemes withinwhich these decisions are madeand their relationship to envi-ronmental justice issues.8 Com-menting on Justice Suther-land’s passing distinction inEuclid between the ‘‘generalpublic interest’’ and ‘‘the inter-est of the municipality,’’ Al-fred Bettman noted: ‘‘This pas-sage in the opinion isnoteworthy in that it presentsthe con�ict not as one betweenthe individual and the commu-nity, but rather as between dif-ferent communities, di�erentsocial groups, or social inter-ests, which is, when profoundlycomprehended, true of all po-lice power constitutionalissues.’’9

STATE ENABLINGAUTHORITY FORPLANNING AND ZONING

In 1999, the American Plan-ning Association (APA), aspart of its multi-year ‘‘Grow-ing Smart’’ e�ort, surveyedstate laws on local land-useplanning to determine howmany states continue to autho-rize planning based on the 1928Standard City Planning En-abling Act.10 The survey foundthat almost half of the states(24) had not updated their localplanning statutes since 1928,and only eleven states hadadopted substantial updates oftheir laws.11 Seven states hadslightly updated their planningenabling acts, and eight stateswere classi�ed as having mademoderate updates.12 Further�ndings from this survey arediscussed below in the section

8Maantay, supra n. 3 at 572.9Richard F. Babcock, The Zoning Game: Municipal Practices and Policies

(The University of Wisconsin Press, 1966) at 145-46, citing Bettman, Cityand Regional Planning Papers, 55.

10An advisory committee of the U.S. Department of Commerce drafted theStandard City Planning Enabling Act. See Rodney L. Cobb, ‘‘Toward ModernStatutes: A Survey of State Laws on Local Land-Use Planning,’’ in PlanningCommunities for the 21st Century (American Planning Association, December1999).

11Id. at 9.12Id.

ZONING AND LAND USE PLANNING 431


on comprehensive land-useplanning.

The long history of state andlocal roles in land-use planningand zoning has been an impor-tant in�uence on current op-portunities for reforms to ad-dress environmental justiceissues. The nation was clearlyin a di�erent place in the 1920swhen the cities were grapplingwith myriad social and envi-ronmental stresses.13 But today,even with the technologicalrevolution, we confront newerand perhaps more complex so-cial and environmental issues,as the nation strives to achievesome level of sustainable de-velopment and as our chal-lenges are no longer containedwithin our cities, but now arespread throughout our subur-ban and rural communities. TheAmerican Planning Associa-tion has identi�ed many factors

to be considered in reformingstate planning statutes, includ-ing ongoing problems of hous-ing a�ordability, lack of hous-ing diversity, exposure of lifeand property to natural hazards,and the obligation to promotesocial equity—‘‘the expansionof opportunities for betterment,creating more choices for thosewho have few’’—in the face ofeconomic and spatialseparation.14

Various planning and zoningenabling statutes have had animpact on the ability of localgovernments’ to consider andaddress environmental justiceconcerns by controlling landuse.15 At the start of the 21stcentury, there is a renewed in-terest in modernizing and re-forming many states’ out-moded planning and zoninglaws. This interest presents aunique opportunity for envi-

13Stuart Meck, FAICP, gen. ed., Growing Smart Legislative Guidebook xx-viii (American Planning Association 2002).

14Id. at xliii.15Professor Craig Anthony Arnold has extensively studied the relationship

between local land use planning and zoning and environmental justice and of-fers details on the following �ve case studies of grassroots environmentaljustice land use strategies: ‘‘(1) rezoning to limit industrial and commercialuses in East Austin neighborhoods of Austin, Texas; (2) rewriting Denver,Colorado’s industrial zoning code by a North Denver community group; (3)the St. Paul, Minnesota, West Side Citizens Organization’s seeking and obtain-ing passage of a citywide ordinance banning metal shredders; (4) the adoptionof a comprehensive land use code and development code by the ConfederatedTribes of the Colville Reservation in Washington; and (5) involvement ofgrass-roots groups from San Antonio, Texas, barrios in the formulation ofoverlay zoning to protect Edwards Underground Aquifer.’’ See, CraigAnthony Arnold, ‘‘Land Use Regulation and Environmental Justice,’’ 30 ELR10395 at 10408 et seq. (June 2000).



ronmental justice advocates toprovide leadership by securingthe passage of revised state en-abling statutes that empowerlocal governments to addressthese issues more e�ectivelythrough land use planning andzoning.

COMPREHENSIVE LANDUSE PLANS

Zoning is one of several le-gal techniques for controllingthe use of land within amunicipality. Zoning is usuallybased upon a comprehensiveplan, and that plan is generallyde�ned as ‘‘an o�cial publicdocument, preferably (but of-ten not) adopted as law by thelocal government, [that serves]as a policy guide to decisionsabout the physical develop-ment of the community.’’16 Theprocess of developing a locali-ty’s comprehensive land useplan ‘‘provides a chance tolook broadly at programs a lo-cal government may initiateregarding housing, economicdevelopment, provision of pub-lic infrastructure and services,environmental protection, and

natural and manmade hazardsand how they relate to oneanother.’’17

The language of the earlymodel—the Standard StateZoning Enabling Act—permit-ted, rather than mandated,planning. Due to its in�uence,some states required that localzoning be implemented in ac-cordance with a local compre-hensive plan. However, manyof these states failed to providespeci�c statutory guidance tolocal governments about whata comprehensive land use planis or should be. States oftenfailed also to provide a statuto-rily prescribed process foradopting a local comprehen-sive plan.18 In fact, the majorityof states do not require adop-tion of a comprehensive plan asa prerequisite for adopting andenforcing local zoning.19 Al-though the 1928 Standard CityPlanning Enabling Act did setforth certain ‘‘elements’’ ofcomprehensive plans, this Actmade plans optional and didnot de�ne the legal relationshipbetween plans and zoning

16Jurgensmeyer and Roberts, Land Use Planning and Control Law at 26(West 1998).

17Meck, supra n. 13 at 7-6.18Jurgensmeyer and Roberts, supra n. 16 at 30.19Stuart Meck, ‘‘The Legislative Requirement that Zoning and Land Use

Controls Be Consistent with an Independently Adopted Local ComprehensivePlan: A Model Statute,’’ 3 Wash. Univ. J. of Law & Pol’y 295, 305 (2000).



ordinances.20 Yet, this �rst stepin local control over land use iscritical for achieving environ-mental justice. During the ini-tial community visioning orplanning stages, ideally, citi-zens can come together to de-cide how and where they wanttheir community to grow and,through the goals and visionarticulated in the planning pro-cess, other legal techniques andzoning ordinances can beadopted to implement the planin ways that will promote envi-ronmental justice.

Beginning in the 1950s, un-der the auspices of the U.S.Department of Housing andUrban Renewal’s Section 701Program, state, regional, andlocal governments were in�u-enced to craft local land useplans that met minimumconsiderations.21 To qualify forfederal funds for urban renewaland other community develop-ment initiatives over a span of

almost three decades, localgovernments were required toprepare and adopt comprehen-sive plans that consisted of thefollowing elements: land use,housing, circulation, publicutilities, and communityfacilities.22

State governments typicallyleave the detailed contents ofcomprehensive planning to in-dividual municipalities. Butsuggestions or guidelines aboutthe elements of a plan may beadopted by state statute. Thisapproach, together with a re-quirement that land be zoned inaccordance with the compre-hensive plan, is �nding its wayinto more recent state statutoryreforms.23 The APA’s GrowingSmart Legislative Guidebooko�ers model state legislationfor adopting comprehensiveplans, and provides for bothrequired and optional elementsof a local plan.24 Some of theseelements can be important for

20Jurgensmeyer and Roberts, supra n. 16 at 30.21See generally, Stuart Meck, FAICP, gen. ed., Growing Smart Legislative

Guidebook (American Planning Association 2002) Chapter 7 at 7-58, discuss-ing the history of local comprehensive planning and citing. For a history of theHUD 701 planning program, see Carl Feiss, ‘‘The Foundations of FederalPlanning Assistance,’’ 51 Journal of the American Planning Association 175(Spring 1985).

22Id.23Meck, supra n. 19 at 306. Meck reviews revised statutes in twelve states

that have attempted to overcome the ambiguous language in the Model StateZoning Enabling Act that provides that zoning be adopted ‘‘in accordancewith a comprehensive plan.’’

24Meck, supra n. 13 at 7-61.



ensuring that local o�cials atleast consider environmentaljustice principles when craftingcomprehensive land use plans.

One speci�c goal of thesmart growth movementshould be to incorporate envi-ronmental justice concerns intoany proposed list of factorsand/or topics that should be ormay be addressed in local com-prehensive plans. This goal caneasily be accomplished throughtraining, education, and techni-cal assistance for local plannersand other o�cials. For ex-ample, in California, recentlegislation requires the Gover-nor’s O�ce of Planning andResearch to adopt guidelinesby July 1, 2003, for local agen-cies when addressing environ-mental justice issues in theirgeneral plans.25 The City of LosAngeles did not wait for thestate to act, as its General Planalready establishes ‘‘physicallybalanced distribution of landuses’’26 as a goal of its land usepolicies, thus providing a foun-dation for the city to ensure thatits future zoning ordinancestake into account environmen-tal justice issues.

CITIZEN PARICIPATIONCAN PLAY AMEANINGFUL ROLE INTHE DEVELOPMENT OFTHE COMPREHENSIVELAND USE PLAN

One of the ways to ensureconsideration of environmentaljustice concerns in local deci-sions is to make certain that lo-cal o�cials provide tradition-ally underrepresentedpopulations with a meaningfulrole in the future developmentof their neighborhoods andcommunities, through activecitizen participation in the de-velopment of comprehensiveland use plans. For most locali-ties, municipal o�cials are al-ready empowered to ensurethat e�ective citizen participa-tion can occur, because stateenabling statutes usually givelocal o�cials broad authorityto develop their plans with littleor no guidance, includingoften-minimal mention of theprocess by which a plan is to bedeveloped and adopted.

Traditionally, however, citi-zen participation in the devel-opment of comprehensiveplans and the adopting of zon-ing laws has been limited to

25Chapter 762 of the California Laws of 2001.26Cli�ord Rechtscha�en and Eileen Gauna, Environmental Justice: Law,

Policy & Regulation 301 (Carolina Academic Press 2002), citing the City ofLos Angeles General Plan, Ch. 3, Goal 3A.



participation in the single pub-lic hearing that is typically re-quired by state law prior to alocal legislative body’s o�cialadoption of the plan or zoningordinance.27 The APA’s Grow-ing Smart Guidebook urges lo-cal o�cials to do more:

The processes for engaging thepublic in planning are not madeclear in many planning statutes.Requirements for public notice,public hearings, workshops, anddistribution and publication ofplans and development regulationsare often improvised. Conse-quently, the public may �nd itsrole and the use of its input uncer-tain, and it may be suspicious ofplans and decisions that emerge.Planning should be doing the op-posite; it should be engaging citi-zens positively at all steps in theplanning process, acknowledgingand responding to their commentsand concerns. Through collabora-tive approaches, planning shouldbuild support for outcomes thatensure that what the public wantsindeed will happen.28

While this above-cited ob-servation is certainly true, envi-ronmental justice issues requirean even more careful and pro-active approach to ensuring ef-fective participation by all citi-zen interest groups. Otherwise,

‘‘ensuring what the publicwants’’ may not o�er a levelplaying �eld to local low-income and people-of-colorcommunities, who are oftendisillusioned, if not disenfran-chised, by most local decision-making processes.

When adopting statutes,states have taken varied ap-proaches to encourage or re-quire e�ective citizen partici-pation in local land-useplanning. Maine and Arizonalaws o�er two examples ofthese approaches:29

In order to ensure citizen participa-tion in the development of a localgrowth management program, mu-nicipalities may adopt localgrowth management programsonly after soliciting and consider-ing a broad range of public reviewand comment. The intent of thissubsection is to provide for thebroad dissemination of proposalsand alternatives, opportunity forwritten comments, open discus-sions, information disseminationand consideration of and responseto public comments.30

When preparing a general landuse plan, local planning agen-cies in Arizona are required to:

seek maximum feasible publicparticipation from all geographic,

27Meck, supra n. 13 at 7-195.28Id. at xlvii.29See Patricia E. Salkin, ‘‘Collaborative Processes for Preparing and Adopt-

ing a Local Comprehensive Plan,’’ in The Growing Smart Working Papers,vol. 2, Planning Advisory Service Report No. 480/481 (1998).

30A Me. Rev. Stat. § 4324(3).



ethic, and economic areas of themunicipality and consult and ad-vise with public o�cials and agen-cies, public utility companies,civic, educational, Professionaland other organizations, and citi-zens generally to the end thatmaximum coordination of plansmay be secured and properly lo-cated sites for all public purposesmay be indicated on the generalplan.31

Moreover, the APA’s GrowingSmart study proposed a modelstate statute on public partici-pation and public hearings forcomprehensive plans:32

The public participation proce-dures shall provide for the broaddissemination of proposals andalternatives for the local compre-hensive plan or such part or otheramendments in order to ensure amultidirectional �ow of informa-tion among participants in advanceof and during the preparation ofplans. Examples of measures con-tained in such procedures mayinclude, but shall not be limited to:

(a) Surveys and interviews ofthe local government’s residentsand business owners, operators,and employees;

(b) Communications programsand information services, such aspublic workshops and training,focus groups, newsletters a speak-er’s bureau, radio and televisionbroadcasts, and use of computer-accessible information networks;

(c) Opportunity for writtencomments on drafts of the plan orsuch part or other amendment;

(d) Appointment of a person toserve as a citizen participationcoordinator for the planning pro-cess; and/or

(e) The creation of advisorytask forces.

Ideally, a requirement to en-sure meaningful citizen partici-pation by all cross-sections ofthe local population should beincluded in state planning andzoning enabling statutes. Pro-viding for active involvementby people-of-color and low-income residents in developingthe goals of a localities compre-hensive plan, at least as it re-lates to their own neighbor-hoods, will help to ensure thatlocal zoning laws or ordinancesare developed and/or amendedto re�ect the desires of thesecommunities. Once their con-cerns are part of the compre-hensive plans, the local zoningwill run the risk of being inval-idated if it does not accomplishthe goals of the comprehensiveplans for addressing the envi-ronmental justice concerns.33

ADOPTING ZONING ATTHE LOCAL LEVEL

When a municipality isready to implement its plan orvision, typically it does so by

31Az. Rev. Stat. § 9-461.05(e).32See Salkin, supra n. 29 at 151-52.33Arnold, supra n. 5.



enacting a zoning law orordinance. Zoning is a processwhereby land in a municipalityis organized into any number ofdistricts. These districts arethen labeled, and the text of thezoning law describes what usesare allowable within eachdistrict. Municipalities mayhave multiple districts with thesame label—e.g., three R-1(residential one family) dis-tricts or two M-1 (light manu-facturing) and in these cases,the zoning requirements fordistricts with the same labelmust be uniform. However,regulations may vary from onetype of district to the next, e.g.,the R-1 district may di�er fromthe R-2 (residential two-family) or R-3 (multi-family)districts.

This form of zoning—alsocalled ‘‘Euclidean zoning’’from the famous SupremeCourt case upholding the con-stitutionality of zoning34 —isdesigned to separate di�erentland uses that are believed to beincompatible. What hasemerged, however, is a patternof land uses that produced dif-ferent residential neighbor-hoods, often identi�able on thebasis of race or socio-economicstatus. Speci�cally, the‘‘haves’’ who can a�ord theproverbial American

Dream—to own a single-family detached home—areable to live next door to otherssimilarly situated. Those whorent because they cannot a�ordto own their own home rarelylive next door to single-familyhomeowners. Rather, lower-income individuals tend to liveamong those of similar eco-nomic status and are concen-trated together in the same ar-eas, because Euclidean zoninghas separated single-familyresidential use into one or morezoning districts that are sepa-rate from the multi-family andapartment housing that is situ-ated in di�erent districts.

To overcome these e�ects oftraditional approaches to zon-ing, state zoning reforms mustinclude methods whereby envi-ronmental justice principles areadequately addressed as part ofthe process for revising andadopting local zoning laws.Disparate environmental im-pacts often exist even in theabsence of any intent to createthose e�ects. The potentialpromise of e�ective coordina-tion among local zoning, thecomprehensive land-use plan,and environmental justice isexplained by one author:

First, an owner or operator of aprospective LULU [locally un-

34See Euclid, supra n. 6.



wanted land use] would havemuch more di�culty obtaining ap-proval for siting . . . the LULU ina minority or low-income neigh-borhood, if the comprehensiveplan and zoning ordinances pro-hibited the LULU in that neighbor-hood than if they allowed theLULU, either by right or condi-tionally . . . Second, land useplanning and regulation creategreater certainty about what landuses will or will not be allowed ina neighborhood . . . Third, landuse planning and [zoning] regula-tions improve the community’scapacity to achieve its goals . . .35

The process of amending ex-isting zoning ordinances o�ersanother signi�cant opportunityto address environmental jus-tice concerns.36 Because plan-ning, by its de�nition, requiresprospective thought and vision,rezoning consistent with a newupdated plan is essential for alocality to achieve its articu-lated goal and remedy an ongo-ing injustice that is allowed orcaused by current zoning.37 Oneauthor explains:

Low-income and minority neigh-borhood groups will be more suc-cessful in achieving valid rezon-

ing of neighboring properties frommore intensive to less intensiveuses if they follow four guidingprinciples: (1) seek rezoning be-fore controversial speci�c land useproposals arise; (2) carefully doc-ument the incompatibility of exist-ing high-intensity use designationsand their impact or potential im-pact on the health and safety of lo-cal residents, as well as commu-nity character; (3) seek rezoningfor all neighboring parcels withsimilar use designations and simi-lar impacts (do not leave a land-owner the argument that only hisor her property has been downzo-ned while neighboring parcels re-main zoned for more intensiveuses); and (4) do not downzone sogreatly that the landowner su�ersa substantial diminution in theproperty’s value (leave the ownersome economically viable use—for example, downzone from in-dustrial use to a commercial use,instead of all the way to a single-family use).38

Typically, the only state statu-tory mandates that govern lo-cal rezoning or amendments tozoning simply require that anyreforms be enacted by follow-ing the same process as adop-tion of the original local zon-ing ordinances or law, and thatany changes in the zoning be

35Craig Anthony Arnold, ‘‘Land Use Regulation and EnvironmentalJustice,’’ 30 ELR 10395, 10407-8 (June 2000).

36Arnold, supra n. 5.37Arnold, supra n. 35 at 10404.38Craig Anthony Arnold, ‘‘Planning Milagros: Environmental Justice and

Land Use Regulation,’’ 76 Denver U. L.R. 1 (1998), reprinted in part in Clif-ford Rechtscha�en and Eileen Gauna, Environmental Justice: Law, Policy &Regulation 299 (Carolina Academic Press 2002).



consistent with the current lo-cal comprehensive plan.

ELIMINATINGNON-CONFORMING USES

When municipalities adoptzoning codes, they often grand-father existing uses that wereallowed prior to the adoption oramendment of the new zoninglaws. These nonconforminguses typically include uses thatare no longer consistent withthe current land-use goals forthe future of the community,and which may pose signi�cantenvironmental and healthhazards.39 There is little statu-tory authority for addressingnon-conforming uses; moststates and local governmentsfollow the common law on thissubject. Nevertheless, un-wanted nonconforming usescan typically be eliminated inone of two ways: adopting a lo-cal amortization law to elimi-nate the use,40 or obtaining ajudgment that the use consti-tutes a public nuisance andmust therefore cease. One strat-egy to address environmentaljustice issues could be for states

to require that municipalitiesmust ‘‘survey their noncon-forming uses and determinewhether any of them pose suchhealth and environmental prob-lems that they should be tar-geted for closure.’’41 Localgovernments can then e�ec-tively amortize the use, therebybeginning the process of im-proving conditions in people-or-color or low-income com-munities, and starting toachieve neighborhood-basedenvironmental justice.

THE RELATIONSHIPBETWEEN ZONING ANDENVIRONMENTALREVIEW

The APA’s has noted thatstate environmental policy acts‘‘bring a new dimension to landuse planning and regulation.’’42

Its 2002 Legislative Guidebookfor model statutes to guidestate-level planning and zoninglaw reforms devoted an entirechapter to discussing the needfor integration of existing stateenvironmental policy acts—‘‘little NEPAs’’—into localplanning, as well as advocating

39Michael B. Gerrard, ‘‘Environmental Justice and Local Land Use Deci-sionmaking,’’ 148, in Trends in Land Use Law from A to Z: Adult Uses toZoning (Salkin, ed.) (American Bar Association 2001).

40See Margaret Collins, ‘‘Methods of Determining Amortization Periodsfor Non-Conforming Uses,’’ 3 Wash. Univ. J. of Law & Pol’y 215 (2000).

41Gerrard, supra n. 37.42See Meck, supra n. 13 at 12-3.



environmental reviews for keyelements of proposed compre-hensive plans prior to theiradoption.43 This Guidebookchapter emphasizes strategiesfor streamlining environmentalimpact reviews and combiningthem with local land use plan-ning and zoning decisions tointegrate these considerationsand avoid duplication in thetwo review processes.

LITTLE NEPAs ANDLOCAL LAND USEACTIONS THAT COULDTRIGGERENVIRONMENTALREVIEW

Only �fteen states, the Dis-trict of Columbia, and theCommonwealth of Puerto Ricohave adopted state environ-mental review laws—‘‘littleNEPAs’’—requiring advanceconsideration of acts that may

have signi�cant environmentalimpacts.44 These ‘‘[S]tate envi-ronmental policy acts bring anew dimension to land-useplanning and regulation,’’ be-cause these statutes require anenvironmental review of cer-tain types of proposed landuses, facilities, ordevelopments.45 States haveadopted these policies ‘‘in part,because planning failed to con-sider the environmental e�ectsof the role of planning in evalu-ating environmentalimpacts.’’46

Although less than half ofthe states have enacted speci�cstatewide authority for localgovernments to conduct localenvironmental impact assess-ments, localities in other statesmay �nd authority under statemunicipal home rule laws, orplanning and zoning enablingacts, to adopt their own locallydeveloped environmental im-

43See id. at Ch. 12.44See Daniel R. Mandelker, ‘‘Melding State Environmental Policy Acts

with Land-Use Planning and Regulations,’’ in Modernizing State PlanningStatutes: The Growing Smart Working Papers, vol. 2, Planning Advisory Ser-vice Report No. 480/481 (American Planning Association 1998) (ProfessorMandelker identi�es the following states as having little NEPAs: California,Connecticut, Georgia, Hawaii, Indiana, Maryland, Massachusetts, Minnesota,Montana, New York, North Carolina, South Dakota, Virginia, Washington,and Wisconsin).

45See Meck, supra n. 13 at 12-3.46Id. at 12-4.



pact laws.47 As one leading en-vironmental lawyer has opined:‘‘It is unrealistic to expectmany municipalities that do notnow require EISs to start doingso in order to address EJconcernsper4elip;[but] whereEISs are already prepared, theycould be required to addressdemographics and other EJmatters in a manner similar towhat is now required underNEPA.’’48 However, becausecomprehensive planning by itsnature does not usually includesite-speci�c development pro-posals, state-level legislation toexpand the scope of planningand require e�ective local envi-ronmental reviews, particularlyin those states that do not havelittle NEPAs, would enablecommunities to have greaterinput with respect to proposeduses that may create environ-mental stressors.49

COMMUNITY IMPACTSTATEMENTS

One variation on local envi-ronmental impact statements is

the community impact state-ment, or CIS.50 A CIS providesa mechanism for local o�cialsto formulate their own state-ment of what they believe theresults will be if a particularuse is approved or allowed toexpand.51 Local reliance on theCIS process could be autho-rized by state legislatures; insome cases, local governmentsmay already possess the neces-sary power to adopt local lawsor ordinances to adopt the CISprocess. One potential bene�tof preparing a CIS is that it canbe a stand-alone review, totallyseparate from an environmen-tal impact review, which maynot always be conducted underthe ‘‘control’’ of members ofthe impacted community. Ifconducting CIS reviews be-comes part of local zoning re-views, local o�cials could berequired take the results of acommunity group’s CIS intoconsideration, to hold one ormore public hearings on thedocument, and to use the CISas a vehicle for negotiation, on

47Kathryn C. Plunkett, ‘‘The Role of Local Environmental Impact Review,’’in New Ground: The Advent of Local Environmental Law (J. Nolon, ed.), 299(Environmental Law Institute, 2003).

48Gerrard, supra n. 39 at 147.49See Meck, supra n. 13 at 12-7.50Sara Pirk, ‘‘Expanding Public Participation in Environmental Justice:

Methods, Legislation, Litigation and Beyond,’’ 17 J. Envtl. L. & Litig. 207,235 (2002).

51Id.



behalf of residents of the af-fected community, with theperson seeking approval of anew or expanded use.52 Requir-ing that CISs be prepared andused in local zoning decisionscould be important for a�ectedcommunities who might nototherwise have access to or in-�uence over local decision-makers and the results of otherenvironmental reviews.

OTHER OPPORTUNITIES

There are numerous otheropportunities to utilize existingland-use planning and zoningtechniques at the local level toaddress environmental justiceconcerns. Professor Craig An-thony Arnold catalogues theseoptions in a recent article dis-cussing, among other things,�exible zoning techniques suchas:53

E Conditional uses—impos-ing certain restrictions onuses that could create EJconcerns.

E Overlay zones—imposingadditional requirementsover an existing zoningdistrict to ensure, for ex-ample, additional environ-mental protections, andused, for example, to im-pose a variety of speci�crequirements on industrial

and commercial activitiesin predominantly low-income and minorityneighborhoods.

E Performance zoning—atechnique used not to regu-late a land use, but ratherto regulate the impacts ofthe use by, for example,providing standards tolimit certain nuisance-likeactivities.

E Bu�er zones—usually lo-cal zoning districts that‘‘bu�er’’ or serve as atransitional district be-tween two or more usesthat might be consideredincompatible. ProfessorArnold notes that thesezones are often the princi-pal historical cause for lo-cating industrial and com-mercial uses next to low-income and people-of-color communities, ratherthan siting such undesir-able uses next to single-family housing. However,he also notes that bu�erzones could include physi-cal screening, landscap-ing, signi�cant setbacks,open spaces, and evenother lower-intensity com-mercial uses that mightserve as better transitionsfrom residential neighbor-hoods to more industrialareas.

E Floating zones—zoningdistricts described in the

52Id.53Arnold, supra n. 35 at 10415-10420.



text of a zoning ordinance,but not speci�cally placedon the zoning map, so theycan ‘‘�oat’’ until they arelocated based upon thepresence of certain identi-�ed criteria and a requestfrom a landowner to locatethat type of district at aspeci�c site for a particu-lar development orfacility. Professor Arnoldwarns, however, that com-munity advocates need tokeep careful watch overthese �oating districts, be-cause it can be di�cult topredict where they willland.

E Exactions and mitigationfees—fees that localitiescan assess developers toreimburse the costs associ-ated with their new devel-opments and thus fund,subject to constitutionallimitations, important pub-lic infrastructure needs inlow-income or people-of-color communities.

Most of these tools are not spe-ci�cally authorized by statestatutes, but have been recog-nized over the years by thecourts as valid exercises of thepolice power by municipalities,thus enabling these techniquesto be used with little statutoryguidance at the local level.

In most states, many otherdecisions about planning and

land use requirements thatcould be used to address envi-ronmental justice concerns areleft to the discretion of localo�cials. They include mem-bership on planning commis-sions, planning boards, andzoning boards; investment intraining for zoning o�cials,planners, and other local deci-sionmakers; and commitmentsto conduct more e�ective com-munity outreach and informa-tion sharing.

At the State level, more canbe done to ensure educationand training. Typically, mem-bers of local planning and zon-ing boards, as well as membersof local legislative bodies, arenot required to receive any spe-ci�c training on planning andzoning laws. Yet scholars havedocumented that zoning andother land use controls such aslarge-lot zoning, minimum�oor area requirements, largesetbacks, low-density zoning,and restrictions on manufac-tured housing and multi-familyhousing, have been used to ex-clude certain populations fromsettling in a particular area, aphenomenon known as exclu-sionary zoning.54 These con-trols may be purposeful orunintentional. However, exclu-sionary zoning is illegal and aviolation of civil rights, and

54Id.



can result in legal judgments orcostly settlements against mu-nicipalities that engage in it.Some of the local decisions thatproduced these results couldhave been avoided by propertraining for members of localland use planning and zoningboards.

Access to important environ-mental information is also keyfor local regulators. To addressenvironmental justice issues ef-fectively, local o�cials musthave access to reliable infor-mation and sound science, andthey need the capacity to incor-porate this information intocarefully designed land useplans, zoning ordinances, andregulations.55 In part, this needrelates to training because, insome instances, the informa-tion exists and local o�cialsneed only to know how to ac-cess it. But in other respects, itis a separate issue that calls forstate and federal agencies toprovide local o�cials with ac-cess to meaningful environ-mental information so that theycan make more considered landuse and zoning decisions. Oneproponent of local environ-mental law o�ers the followingsuggestions: (1) Follow the ex-

ample of environmental impactassessment laws in Californiaand New York that ‘‘require lo-cal governments with actionssubject to these review laws toobtain the necessary expertiseand information and to assurethat it is paid for—often byproject proponents in the caseof privately initiated projects’’;(2) Provide special funding tolocal governments seeking andusing high-quality environ-mental information; (3) Pro-vide incentives for, or require,the acquisition of good envi-ronmental information; and (4)Establish statewide GIS clear-inghouses that supply localgovernments with signi�cantenvironmental informationprior to adopting local zoninglaws and land use plans,thereby also enabling states toplay a more meaningful role inimproving the quality of localland use decisions.56

APPOINTMENT OFINDIVIDUALSREPRESENTATIVE OFTHE COMMUNITY TOPLANNING AND ZONINGBOARDS

In most localities environ-mental justice considerations

55James M. McEl�sh, Jr., ‘‘Learning from the Past and Looking Towardsthe Future,’’ in New Ground: The Advent of Local Environmental Law (J.Nolon, ed.), 404 (Environmental Law Institute, 2003).

56Id. at 404-06.



will be factored into local landuse planning, zoning, and sit-ing decisions only where thea�ected communities are repre-sented on the bodies empow-ered to make these criticaldecisions. A 1987 survey bythe APA revealed the follow-ing:

E Nearly eight out of tenmembers of planningboards were men;

E More than nine out of tenmembers were white, al-though in some larger cit-ies the number was closerto seven out of ten;

E Almost eight out of tenwere 40 years of age orolder; and

E Most board members wereprofessionals such as busi-nesspeople, lawyers, engi-neers, educators, and realestate agents.57

This study con�rmed the �nd-ings of planning consultantHarvey S. Moskowitz, who ex-amined the characteristics of

New Jersey’s planning boardsbetween 1981 and 1982. Heconcluded that the members ofthese boards di�ered from thegeneral population, and weredrawn from more elite groupsthan the general population.58

Speci�cally, Moskowitz foundthat board members were pre-dominantly white professionalmales whose family incomeswere considerably higher thanthe median family income ofthe general population. Theywere also married, owned theirown homes, and had dependentchildren at home.59 This argu-able ‘‘elitism" in the composi-tion of local boards is a majorbarrier to addressing environ-mental justice concerns andpromoting e�ective citizen par-ticipation for all communitiesin local planning and zoningdecisionmaking. These dataalso explain and substantiatethe fact that marginalized citi-zens are not su�ciently em-

57See Stuart Meck, FAICP, gen. ed., Growing Smart Legislative Guidebook(American Planning Association 2002) at Chapter 7, citing, Welford Sandersand Judith Getzels, The Planning Commission: Its Composition and Function,Planning Advisory Service Report No. 400 (American Planning Association1987), 4-6 (based upon 4,380 nationwide questionnaires).

58Id. at Chapter 7, citing Harvey S. Moskowitz, ‘‘Planning Boards in NewJersey: Current Realities and Historical Perspectives ii’’ (unpub. Ph.D. dis-sertation, Rutgers University, New Brunswick, N.J., 1983).

59Id.



powered to impact communitydevelopment decisions.60

To address this situation,states could advocate or requirethat localities appoint boardmembers who may representthe diversity of the communityas a whole, including race, gen-der, income, homeownership,renters, and age. There is alsoprecedent for states to autho-rize, but not require, that mu-nicipalities appoint individualsto planning boards who mayserve in a representativecapacity. For example, NewYork statutes authorizing thecreation of planning boardsprovide that, in certain situa-tions (where there is a locallyestablished agricultural districtpursuant to state law), munici-palities may appoint one ormore members of local plan-ning boards who derive a cer-tain threshold of their incomefrom agricultural pursuits inthe same municipality.61

The APA’s Growing SmartGuidebook also o�ers states anoption for modernizing theirplanning statutes in this regard,by recommending appointment

of at least one member ‘‘wholives [or who will represent theviewpoint of those who live] inrental, a�ordable, or multifam-ily housing."62 The Guidebookstops short, however, of identi-fying any other members whoshould be appointed to serve inother representative capacities.Examples might include spe-ci�cally selecting a boardmember to represent any ethnicor cultural groups that com-prise a certain percentage of thelocal population, appointing aboard members who could rep-resent the interests of commu-nity residents below a certainincome level, or selecting aboard member to represent theinterests of residents in a neigh-borhood or area that alreadysu�ers severe environmentalexposures from nearby hazard-ous land uses.

Because the studies docu-menting membership on plan-ning boards are now �fteen totwenty years old and did notinclude membership on zoningboards of appeal or other localland use bodies, a new nation-wide study is needed to deter-

60See, for example, Ora Fred Harris, Jr., ‘‘Environmental Justice: The Pathto A Remedy That Hits the Mark," 21 U. Ark. Little Rock L. Rev. 797 (Sum-mer 1999).

61N.Y. Town Law § 271(11); and N.Y. Village Law § 7-718(11).62Meck, supra n. 13 at 7-32. The Guidebook notes that the bracketed

language is ‘‘targeted to those small communities where the number of personswho live in rental, a�ordable, or multifamily housing is limited and whereresidents may not be willing to volunteer." Id.



mine the current extent towhich low-income or people-of-color groups are underrep-resented among the membersof local in planning and zoningbodies. A new survey wouldnot only yield updated data, butalso could include an explana-tion of environmental justiceconcerns and how they relate tothe planning and zoning deci-sionmaking process, thus pro-viding another opportunity foreducating local o�cials abouthow they can address theseissues.

CONCLUSION

Commentators, professors ofenvironmental and land uselaw, and community advocateshave only recently started towrite about the critical connec-tions between environmentaljustice problems and local landuse planning and zoningdecisionmaking. While thereare signi�cant challenges toincorporating environmentaljustice principles into our na-tion’s planning and zoning sys-tem, in large part due to thefragmented nature of local landuse decisions, the opportunitiesand potential rewards are great.Given the magnitude of localland use planning and zoninge�orts, environmental justice

advocates should not ignorethis critical step in communitydecisionmaking and commu-nity development. ProfessorArnold argues that ‘‘land useplanning and regulation fosterchoice, self-determination, andself-de�nition for local neigh-borhoods, not paternalism thatinsists that there is a single cor-rect environmental justicegoal."63 From a timing perspec-tive, the opportunity forchanges that address environ-mental justice concerns hasnever been better, due to thecurrently active national move-ment for modernizing of stateplanning and zoning statutes.Signi�cant investments intraining and education througha network of partnerships arenecessary, but can yield sub-stantial returns for enabling lo-cal o�cials to address environ-mental justice concerns. Thereis already a growing network ofpublic, private, and nonpro�tinterests all committed to en-suring that environmental jus-tice issues are taken into ac-count through local planningand zoning. Increasing collabo-ration and cooperation, sharedresources, and joint e�orts willhelp to remedy past environ-mental justice problems andprevent their repetition in thefuture.

63See Arnold, supra n. 35 at 10427.



environmental justice and land use planning and zoning

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