Achieving Climate Resilient Development at the Local Level – Does a Nationally Consistent Legal Framework Exist to Facilitate Adoption of CRD Best Practices?

INTRODUCTION 

The Intergovernmental Panel on Climate Change (“IPCC”) Climate Change 2023 Synthesis Report (“AR6 SYR”) defined Climate Resilient Development (“CRD”) as “the process of implementing greenhouse gas mitigation and adaptation measures to support sustainable development for all,” with CRD being enabled when “governments, civil society and the private sector make inclusive development choices that prioritize risk reduction, equity and justice, and when decision-making processes, finance and actions are integrated across governance levels, sectors, and timeframes.” AR6 SYR declared municipal land use controls as “critical” for attaining emissions reductions and advancing CRD, with a “key” adaptation and mitigation strategy being the consideration of climate risk and impacts when designing and planning housing and other infrastructure.

FRAMEWORK OUTLINE 

John Nolon, Distinguished Professor Emeritus of the Elisabeth Haub School of Law at Pace University (“Haub Law”), posited that municipal governments could shape land development and human settlements using CRD concepts, but that local officials and stakeholders might need technical assistance to do so. Professor Nolon and Haub Law’s Land Use Law Center (“LULC”) began drafting a CRD Framework Law, based on a proposed structure that Professor Nolon introduced in his February 25, 2024, GreenLaw Blog post. The suggested framework elements outlined below reflect Professor Nolon’s and the LULC’s years of experience working with and studying local land use laws, particularly those in the United States’ Northeast and Mid-Atlantic regions. The eight components of Professor Nolon’s proposed CRD framework are:

1. Comprehensive Plan
2. Special Plan with CRD Objectives
3. Zoning and Other Land Use Regulation
4. Traditional Zoning (as of right uses, special permits, site plan review, subdivision, etc.)
5. Innovative Zoning (cluster, overlay, planned unit development, etc.)
6. Supplemental Zoning Regulation (flooding, wildfire, heat island, stormwater, etc.)
7. Administrative Provision (special boards: tree, conservation, sustainability; public engagement, etc.)
8. Separate CRD Code Regulation

In the summer of 2024, four intrepid Haub Law students* set forth as “internet explorers” researching how municipalities outside of the Northeast and Mid-Atlantic were implementing local land use controls that required, promoted, or incentivized CRD to test Professor Nolon’s proposed CRD framework. These students were part of a larger group that had been successively researching CRD at the local level in the Northeast and Mid-Atlantic for over four years at Haub Law’s LULC. 

RESEARCH METHODOLOGY

The summer ’24 student team aimed to find examples from regions of the contiguous United States that were less familiar to the LULC, including the Great Lakes, Mid-West, Northwest, West, Southwest, and Southeast. The students began by identifying the thirty-five states in the six regions and then choosing at least one municipality in each state for further study. The team attempted to pick municipalities of various sizes to highlight differences, if any, between well-staffed and well-resourced bigger municipalities and often understaffed and underfunded smaller cities, towns, and villages. 

After picking a municipality, a team member searched its website for comprehensive and special plans, then located codes and regulations on either the municipality’s website or a code hosting service like American Legal Publishing, eCode360, or Municode. The team member noted where framework components were either present or absent from a municipality’s ordinances, regulations, or adopted plans.

The students ultimately compiled forty-seven examples from thirty-five states, representing five size categories, described below. 

Very Small population less than 2,499

Small population between 2,500 and 9,999

Medium population between 10,000 and 49,999

Large population between 50,000 and 99,999

Very Large population more than 100,000

The team selected the example with the most complete data on each of the eight CRD framework components for each studied state. The thirty-five chosen municipal examples were well distributed in size, as they represented six “Very Small,” nine “Small,” eight “Medium,” three “Large,” and nine “Very Large” cities, towns, and villages. 

The student team ultimately assembled a useful data set of CRD framework components in municipal ordinances, regulations, and plans across the Great Lakes, Mid-West, Northwest, West, Southwest, and Southeast regions of the United States. The product of the team’s research is presented in regional summaries below. This assembled information allowed the team to draw some preliminary conclusions about the consistency of Professor Nolon’s proposed CRD framework law with the then-existing structure and form of municipal land use controls throughout the United States. 

Great Lakes	Cleveland, Ohio	Brooklyn, Michigan	Mooresville, Indiana	Northbrook, Illinois	Watertown, Wisconsin	Duluth, Minnesota
Municipality SIZE/Type	VERY LARGE City	VERY SMALL Village	SMALL Town	MEDIUM Village	MEDIUM City	LARGE City
Framework Components Found	8/8	7/8  No Special Plan	7/8 No Special Plan	8/8	6/8 No Special Plan or Separate CRD Code	8/8
Highlights	Public Health Code for Air Pollution  Live/Work Overlay District	Floodplain Regulation   Planned Unit Development	Buffer Requirement Erosion Control	Climate Action Plan  Green Building Initiative	Smart Growth District  Natural Resources Board	Form-Based Districts Parking Maximums   Sustainability Point System

 

Mid-West	Wilton, Iowa	Four Seasons, Missouri	Liberal, Kansas	Omaha, Nebraska	Box Elder, S. Dakota	Devils Lake, N. Dakota
Municipality SIZE/Type	SMALL City	VERY SMALL Village	MEDIUM City	VERY LARGE City	MEDIUM City	SMALL City
Framework Components Found	7/8 No Separate CRD Code	7/8 No Special Plan	5/8 No Special Plan, Supplemental Zoning Reg, or Separate CRD Code	8/8	8/8	7/8 No Special Plan
Highlights	Tiny House Pocket Development  Floodway Fringe Overlay District	Residential Planned Unit Development  Provisions for Flood Hazard Reduction	Pervious Parking Requirement  Planned Unit Development District	Active Mobility Plan  Municipal Land Bank	Open Space Master Plan Tiny Homes District	Shade Tree Committee  Floodplain District

 

Northwest	Glenrock, Wyoming	Columbia Falls, Montana	Eagle, Idaho	Moses Lake, Washington	Sweet Home, Oregon
Municipality SIZE/Type	VERY SMALL Town	SMALL City	MEDIUM City	MEDIUM City	SMALL City
Framework Components Found	7/8 No Separate CRD Code	8/8	7/8 No Supplemental Zoning Reg	8/8	8/8
Highlights	Tiny Home ADUs  Micro Wind Systems	Fire Hazard Area Standards  Planned Unit Development	Design Review Overlay District  Floodplain Control Regulation	Shoreline Master Program  Critical Natural Area Regulation	Natural Hazards Mitigation Plan  Water Conservation Code

 

West	Fresno, California	Yerington, Nevada	Ogden City, Utah	Creede, Colorado
Municipality SIZE/Type	VERY LARGE City	SMALL City	LARGE City	VERY SMALL City
Framework Components Found	8/8	7/8 No Innovative Zoning	8/8	8/8
Highlights	Citywide Active Transportation Plan  Urban Growth Management Fees for Creating Parks	County Hazard Mitigation Plan Adopted Right to Farm Zoning Provision	Sustainability Committee  Energy Wise Strategic Implementation Plan	Floodplain & Flood Fringe Development Standards  “Nuisance” Trees Prohibited

 

Southwest	Wickenburg, Arizona	Elephant Butte, New Mexico	Medicine Park, Oklahoma	Fort Worth, Texas
Municipality SIZE/Type	SMALL Town	VERY SMALL City	VERY SMALL Town	VERY LARGE City
Framework Components Found	8/8	8/8	6/8 No Special Plan or Supplemental Zoning Reg	8/8
Highlights	Well Head Protection Overlay Zone  Floodplain Regulation	“Green” Industry Applicants for Economic Development Funding get priority  Fire/Smoking Restriction During Drought	Mixed-Use Residential District  Floodplain Construction Standards	Drought Contingency & Emergency Water Management Special Plan  Pedestrian & Bicycle Advisory Commission

 

Southeast 1	New Orleans, Louisiana	Tontitown, Arkansas	Jackson, Mississippi	Nashville, Tennessee	Cold Spring, Kentucky
Municipality SIZE/Type	VERY LARGE City	SMALL City	VERY LARGE City	VERY LARGE City	SMALL City
Framework Components Found	8/8	7/8 No Special Plan	7/8 No Supplemental Zoning Reg	7/8 No Separate CRD Code	7/8 No Special Plan
Highlights	Net Zero Climate Action Plan  Greenway Overlay District	Natural Scenic Beauty Overlay District  Flood Damage Prevention	Transit Oriented Development Plan  Energy Conservation Code	Climate Adaptation/ Resilience Plan  Environmental Performance Standards	Mixed Use Planned Development Overlay  Hillside Development Controls

 

Southeast 2	Tuscaloosa, Alabama	Alpharetta, Georgia	Tallahassee, Florida	Newberry, S. Carolina	New Bern, N. Carolina
Municipality SIZE/Type	VERY LARGE City	LARGE City	VERY LARGE City	MEDIUM City	MEDIUM City
Framework Components Found	8/8	8/8	8/8	7/8 No Special Administrative Board	8/8
Highlights	Stormwater Management Plan  Downtown Riverfront Overlay District	Residential Infill Overlay District  Stormwater Management Regulation	Flood Damage Protection  Conservation Area Development Standards	Urban Forest Master Plan  Landscaping to Reduce Heat Island Effect	Resiliency-Hazard Mitigation Plan  Flexible Parking Minimums

 

CONCLUSIONS

The LULC student researchers concluded that the existing structure of U.S. local land use law outside the Northeast and Mid-Atlantic regions is consistent with the CRD implementation framework proposed by Professor Nolon’s GreenLaw Blog post. 

Generally, municipalities with populations greater than 10,000, in the size Medium, Large, or Very Large categories, had incorporated more of Professor Nolon’s proposed eight CRD framework components than the less populous municipalities in the Very Small and Small size categories. 

Of the nineteen total municipalities that the student team found had implemented all eight (8/8) of the CRD framework components, fourteen were from Very Large (seven), Large (three), and Medium (four) municipalities, while the remaining five were from the two smaller categories of Small (three) and Very Small (two). This may suggest that greater financial resources and more personnel in more populous municipalities serve as enabling conditions for the adoption of CRD land use laws and plans. 

It is also important to highlight that two Very Small municipalities in the study had also implemented all eight of the CRD framework components: Creede, Colorado with a population of 303, and Elephant Butte, New Mexico with a population of 1,341. The seven Very Large municipalities that reached the same milestone (8/8) did so with populations that were orders of magnitude greater (ranging from over 200,000 to nearly a million citizens). This may indicate that smaller, more cohesive populations may allow for greater unity in forming and achieving CRD-related objectives. 

There were thirteen municipalities in the study that adopted seven of eight (7/8) of the CRD components. Of these thirteen, Small municipalities were the best represented with six examples, while Very Small (3), Medium (2), and Very Large (2) rounded out the field. Further, only three municipalities had fewer than seven of the CRD components, one of which was Very Small and the other two were Medium-sized municipalities.

Of the “missing” CRD components, the absence of a Special Plan with CRD elements was the most prevalent, perhaps reflecting a lack of financial or procedural enabling conditions for the typically cost and labor-intensive process of plan drafting and adoption. Below is a summary of the “missing” CRD components:

• Nine municipalities – no Special Plans found. 
• Five municipalities – no Separate CRD Related Code elements found outside of Zoning.
• Four municipalities – no Supplemental Zoning code elements found pertaining to environment or public health.
• One municipality – no Innovative Zoning provision found.
• One municipality – no Special CRD-related Administrative Provision or Body found. 

Further study will be needed to tease out the enabling conditions that best facilitate CRD implementation, but in the meantime, it is encouraging to find that municipalities of all sizes are already making significant strides. It is reasonable to imagine that municipalities from across the United States that wish to adopt or add “best practice” CRD elements to their current codes, ordinances, and plans may soon be able to plug examples from Professor Nolon’s forthcoming CRD Framework Law into their land use structures without requiring significant alteration or reorganization. This is good news for municipalities and for our planet!

 

*2024 Summer Team was Alexis Friedman, Emily Elizabeth Grams, Halil Gecaj & Pam Vegna.