By Sara M. Bour, Esq., Manager and Counsel, AIA Contract Documents
June 7, 2022
Zoning and land use laws mandate the use and development of real estate. New construction projects may be subject to laws that were enacted many years ago, with minimal to no amendments. Some of these laws are outdated in comparison to current public policy, but legislative changes could be on the horizon. One way that zoning and land use laws are affected is through recommendations made by local planning departments and committees. Here are some current planning trends that are impacting change in zoning and land use laws across the United States.
1. Environmental Changes Are Considered Through Hazard Mitigation Planning and Resilient Land Use Designs
In many places, land use and zoning laws have not yet adapted to environmental changes. Many areas have not accounted for climate impacts in terms of how to build, where to site, and how to design projects. As a result, communities are vulnerable to risks associated with natural hazards, such as personal injury, property loss, and the financial security of governments and infrastructure. Astoundingly, some luxurious communities remain zoned for residential builds, while simultaneously experiencing some of the most damaging wildfires in the United States. With climate variability becoming more prevalent and intense in many areas, and some insurers unwilling to provide policy coverage, communities are proactively planning to adapt local laws to protect against these risks.
One proactive approach that communities are taking is integrating hazard mitigation into their local planning. Hazard mitigation is rooted in reducing overall risks and protecting vulnerable populations. The Code of Federal Regulations defines hazard mitigation as, “any sustained action taken to reduce or eliminate the long-term risk to human life and property from hazards.” 44 C.F.R. § 201.2. Generally, as part of hazard mitigation planning, vulnerabilities are analyzed with respect to the local population. This analysis may include a variety of considerations, including the needs of the affected community, strategies to benefit underserved populations, and accounting for climate variability.
Another proactive approach to protecting communities is amending regulations to align with resilient design standards. These are regulations that make existing and future developments more durable for when a natural hazard occurs. Communities can proactively update their zoning and land use laws to reflect areas impacted by climate variability, as well as their building codes and design standards to strengthen future development against natural hazards. For example, where an area vulnerable to flooding, local regulations may be amended to require elevated outdoor equipment, such as MEP systems, on pedestals or platforms, to bring the systems above the flood elevation. Similarly, in coastal communities that are impacted by rising sea levels, building design standards may be adjusted to increase the minimum elevation of the lowest occupiable floor for residential use, or require saltwater damage resistance materials in new projects. Planning committees are recognizing that climate adaptation in land use designs is a key to success for growth and sustainability. Thus, planners are recommending amendments to current laws to align with the community’s sustainability and resiliency goals.
Altogether, hazard mitigation plans and resilient design standards aim to mitigate damage to construction projects and the surrounding area when natural hazards occur. These plans and policies aim to protect construction projects, the environment, and the affected community.
2. Technological Advancements in Mobility
Another trend that is impacting zoning and land use laws is the deployment of new mobility technologies. Technological advancements in mobility have exponentially grown in recent years, and people are not commuting in the same way they were in the past. Autonomous vehicles in different forms are new technologies that are visibly present on today’s streets. In many places around the United States, you may regularly see an autonomous automobile or electronic bicycle moving past you during your commute.
Policies may change to adapt to these new technologies and create safer streets for vehicles and pedestrians. The adaptation of new mobility technology may influence physical infrastructure, such as the size and width of roads, differing travel lanes, or increased (or decreased) highway sizes and parking sites. Where governments desire to encourage the use of new mobility technologies, zoning laws may be amended to decrease open street parking and designate more space for autonomous and electric vehicles. Arizona is a prime example of how legislation can adapt to, and encourage the use of, new mobility technology. In 2021, Arizona’s governor signed into law H.B. 2813, which establishes procedures for autonomous vehicle use, accident reporting, and equipment standards. Under this law, an autonomous vehicle can operate on public roads without a physical driver, but only when other conditions are met, such as submission of a plan with protocols developed by the Arizona Department of Public Safety. From this example, it is clear that laws may be adapted to encourage or limit the use of new mobility technologies, depending on how governments react to it.
3. Creating Equity Through Affordable Housing, Avoiding Displacement, and Focusing on Health and Inclusivity
Another policy planning goal is creating equity between populations in local communities. But how exactly is equity determined? Public meetings are commonly held to determine the community’s needs, and who will benefit or be impacted by policy changes. These meetings can result in policy action plans with recommended changes to current law.
When focusing on equity, a goal for many communities is minimizing displacement of vulnerable populations. To avoid displacement, policies that aim to preserve and build affordable housing are prioritized. Affordable housing policies can be complimentary to environmentally conscious goals as well because affordable housing can involve sustainable building practices. Sustainable housing contributes to lower utility and maintenance costs, as well as improved building performance and durability. Along with this, plans that protect the tenure of residents, and retain and grow small businesses, are becoming a priority when recommending amendments to current zoning laws.
In addition, communities are shifting their focus to create healthy and inclusive spaces. Local governments are adopting policies and planning designs that encourage healthy lifestyles, such as increasing walkability and outside access through sidewalks and non-vehicular pathways. Planners are encouraged to design environments for not only the majority of the population, but marginalized and disabled individuals too. All community members benefit through goals such as pollution reduction, improved public health, renewable energy retrofits, and lower energy costs.
In all, construction projects are always subject to zoning and land use laws. These laws are impacted by local community needs and goals. Considering these planning trends, zoning and land use laws may be changing to create a better, more sustainable and equitable environment for local populations.
AIA Contract Documents has provided this article for general informational purposes only. The information provided is not legal opinion or legal advice and does not create an attorney-client relationship of any kind. This article is also not intended to provide guidance as to how project parties should interpret their specific contracts or resolve contract disputes, as those decisions will need to be made in consultation with legal counsel, insurance counsel, and other professionals, and based upon a multitude of factors.