Equitable Adaptation Legal & Policy Toolkit

 

Regulatory Tools for Natural Resilience

Regulatory tools such as zoning codes and tree and stormwater ordinances are another way that cities can enhance natural resilience. In contrast to government operations and programs, these tools can be used to create requirements for how private land is used; several regulatory approaches that have been used to improve and target greening in frontline communities include zoning code amendments and overlays; tree ordinances; and stormwater ordinances.

Zoning Code Amendments and Overlays

Zoning codes establish standards for development and land use, and are written to implement local comprehensive plans (sometimes known as master plans or general plans).See footnote 1 Historically, zoning has been used as a tool to segregate communities of color in areas where environmental pollution is much more prevalent.See footnote 2 However, in recent years, some cities are using zoning amendments such as overlay districts to improve environmental justice outcomes; for example, zoning codes can be used to set landscape requirements for different land uses, and overlays can be used to create more stringent development requirements or environmental analysis requirements in frontline communities. Cities can work with communities to assess and remove zoning barriers to natural resilience. For example, cities are amending zoning codes that have historically acted as a barrier to urban agriculture by expanding the scope of agricultural and business activities permitted in residential zoning districts.See footnote 3

Tree Ordinances

Many cities have enacted tree ordinances to regulate tree removal and implement goals for enhancing and preserving urban tree canopy. Tree ordinances typically set conditions for tree removal and requirements for replacement (or in-lieu fees) in the context of new development and other activity.See footnote 4 They may also create different replacement or mitigation requirements depending on whether the tree being removed is on private or city land, or in the streetscape.See footnote 5 Tree ordinances that create permitting fees or funds to collect in-lieu fees can establish a dedicated source of funding for tree planting efforts, which in some cities has been used to target areas with frontline communities, lower tree canopy, higher incidence of air pollution, and flooding challenges. Trees can also be considered a strategy for mitigating stormwater impacts and can be included in stormwater ordinances and regulations discussed below.

Stormwater Ordinances

Stormwater ordinances can be used to establish minimum water retention requirements (thereby encouraging the use of green infrastructure practices) or specify green infrastructure practices that new development or substantial renovations must employ.See footnote 6 Programs that utilize stormwater fees (which may be based on percentage or amount of impervious surface area) can encourage nature-based and green infrastructure by specifying reductions in fees, and revenue generated through fees can be utilized to fund capital improvements (including green infrastructure projects to mitigate stormwater runoff and pollution) and maintenance, including targeted stormwater mitigation efforts in flood prone areas.See footnote 7

Cities should also consider the implications of new regulatory requirements for neighborhoods where low-income and other frontline communities are located to ensure that compliance is not overly burdensome. For example, stormwater utility fees as part of a regulatory program can help generate needed funding for green infrastructure improvements to manage stormwater, but compliance can be a burden for community-owned or -run properties if not exempted, such as community gardens.See footnote 8 Cities should also ensure in program design that the natural resilience benefits of regulatory programs reach frontline communities. Regulatory programs that establish funds for green infrastructure may be directed to low-greenspace areas consistent with planning; for example, tree ordinances creating permitting requirements for tree removal might provide an in-lieu fee alternative to direct tree replacement, and such fees can fund targeted tree planting in neighborhoods lacking tree canopy that may be more challenged by poor air quality, stormwater flooding, or other issues that urban forestry can help mitigate.

Considerations of Regulatory Tools for Natural Resilience

Economic

  • Cities can generate funding for greening through regulatory approaches like permitting/development fees, tree removal fees, etc.

Environmental

  • Regulatory tools can be used to establish requirements that will improve natural resilience (along with environmental co-benefits) (e.g., through stormwater program requirements, zoning requirements).
  • Environmental co-benefits may include carbon sequestration, stormwater management/flood mitigation, pollutant filtration.

Social/Equity

  • Regulatory tools can result in new greenspace on private property; however, compliance may be burdensome if the program is not designed carefully or with proper exemptions.
  • Public health benefits of regulations affecting natural solutions may include improved air quality (lower asthma rates, etc.), access to nature (mental health), pollutant filtration, reduced urban heat, and more.

Administrative

  • Modifying codes or passing legislation or ordinances can involve lengthy and challenging administrative processes, and may in some instances result in political pushback.
  • Regulatory programs can be burdensome to administer (e.g., oversight, management of fees, etc.).

Legal

  • Local zoning requirements must be consistent with comprehensive plans.
  • Cities will need to understand the scope and source of authority (e.g., state authorizing statute) to enact ordinances mandating private actions, develop fee structures, etc. and any limitations on that authority or on how fees are used (e.g., fee vs. tax issues and how state courts have interpreted the scope of fees).

Lessons Learned

  • Build fee-based (e.g., stormwater fees) or partially fee-based (e.g., green infrastructure requirements with in-lieu fee options) programs to generate revenue for greening, and as feasible, use these funds generated to support targeted greening investments in frontline communities.
  • Before utilizing regulatory tools, evaluate local authority and any limitations on authority to regulate certain activities, and design ordinances carefully to ensure that regulations are within the scope of local authority.

 

Related Resources

 
Washington D.C./District of Columbia Stormwater Ordinance - 2013 Rule on Stormwater Management and Soil Erosion and Sediment Control

In 2013, the District Department of the Environment (DDOE; now the Department of Energy and Environment, or DOEE) released an amended Rule on Stormwater Management and Soil Erosion and Sediment Control to require that major development and redevelopment projects  incorporate additional measures to retain stormwater and reduce runoff. The District offers compliance flexibility by allowing for some off-site retention, the ability for developers to pay an in-lieu fee, or the option to buy stormwater retention credits. The stormwater credit trading system facilitates offsite retention and creates incentives in other parts of the city to retain more than the legally required minimum because that extra retention can be sold as a credit. The off-site provisions have potential to improve environmental justice outcomes by resulting in larger green infrastructure investments being made in frontline communities with lower average incomes and higher exposure to flooding.

Newark, New Jersey Environmental Justice and Cumulative Impact Ordinance

The Newark Municipal Council passed the Environmental Justice and Cumulative Impacts Ordinance to address long standing health disparities among Newark’s poorest communities. While the ordinance is not specifically about climate change, it does provide a mechanism to address cumulative environmental impacts that lead to the disproportionate climate risks on low-income residents and people of color. This ordinance requires industrial and commercial development proposals to include information about cumulative environmental impacts that will allow decisionmakers and the public to make an informed decision if the development meets the city’s sustainability goals. The ordinance was drafted and proposed by the New Jersey Environmental Justice Alliance and allied groups.

Portland, Oregon Tree Code

The City of Portland, Oregon has a tree ordinance that, under the guidance of the city’s Urban Forest Master Plan, establishes a framework and requirements relating to the preservation and maintenance of the city’s urban forest. Among the stated purposes of the tree code are “capturing air pollutants and carbon dioxide,” “[f]iltering stormwater and reducing stormwater runoff,” “[r]educing energy demand and urban heat island…” sustaining habitat, and more. The tree code sets out requirements that must be met regarding tree removal and replacement in both development and non-development circumstances, and in the context of city and street trees as well as private trees. A dedicated Tree Planting and Preservation Fund is established to “advance the City’s goals for the urban forest and intend to achieve equitable distribution of tree-related benefits across the City,” among other purposes. Equitable distribution of investments in the city’s urban forest is consistent with the city’s 2007 Urban Forest Action Plan, which includes targeting low-income and low-tree-canopy neighborhoods for street tree planting as high priority early actions.

Los Angeles Clean Up Green Up Ordinance

Los Angeles’s Clean Up Green Up (CUGU) Ordinance, part of a larger CUGU initiative, creates a zoning overlay for three distinct areas of the city in order to apply new development standards intended to improve environmental justice outcomes in those areas. The overall purpose of the CUGU ordinance and additional development regulations in the overlay districts is to reduce cumulative health impacts to the communities residing in those areas; setback and landscaping requirements are included in the regulations, which may ultimately help enhance green features and natural natural resilience in high-pollution areas.

  Planning Tools for Natural Resilience Government Operations & City Programs