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Green Development: Why Developers and End-users Benefit from Smart-growth Practices such as Urban Agriculture

There are several catalysts at play that promote more environmentally conscious urban development. Such development, surely, is partially a response to local governments that are requiring more environmentally friendly practices for land use approvals, especially to secure discretionary approvals.[1]  Some states, for example, have open space requirements, while others encourage such requirements by offering a more intensive use approval in exchange for conservation space.[2]  States have broad authority to grant development only conditionally, and parameters to such authority are established in Nollan v. California Coastal Commission and Dolan v. City of Tigard.[3]  To exercise a taking as a condition to development, there must be, first, a direct relationship between the taking imposed and a legitimate governmental goal, and, second, a proportionality between the taking and the impact of the proposed development.[4]  These conditional takings are limited by the case law and the Constitution.

While many cities have mandated mitigation of environmental impacts through takings, many others mandate impact mitigation through green building practices. The principles of green building are well stated by the principles of Leadership in Energy and Environmental Design (LEED) standards created by the U.S. Green Building Council (USGBC; a private nonprofit providing standardized guidelines for green building).[5]  Such practices take into account the environmental impacts of developments in multiple categories: site selection; water use; energy use; materials (including sustainable sourcing); indoor environmental quality; and design.[6]  Some municipalities and states place more of an emphasis on green building practices than others. Therefore, municipalities’ open space and green building requirements can explain only some of the environmentally responsible practices of development. 

In recent years, many developers are leaning toward green development exceeding the minimum standards required by municipalities or state governments. One incentive may certainly be straightforward monetary advantages. The federal government offers multiple tax credits for developers who decrease the heating and cooling energy required for residences, as well as incentives for those who create energy efficient commercial buildings.[7]  States and municipalities may also waive application fees or expedite reviews of green projects, as well as offer tax increment funding.[8]  Moreover, when local government officials are involved in the design review process or land use decision-making, developers may use better environmental practices to appeal to abutters and local constituents who have grown to value the environment in recent years. And end users have also found increases in the productivity and attendance of workers inside green buildings in comparison with those in traditional buildings, perhaps in large part due to the improvements in interior environmental quality that are a part of LEED certification.[9]  Such improvements in productivity can save significant amounts of money for businesses. These financial incentives, along with requirements and conditional use incentives and green building standards promulgated by local governments, help explain why developers have chosen to go green.  Still unexplained, though, is that developers and community organizations have vastly promoted urban agriculture in recent years despite the difficulty in making direct profit from such development.

An increase in urban agriculture is caused, in part, by an increase in public demand for local food.[10]  Indeed, consumers are increasingly supporting local agriculture at farmers markets—between 2011 and 2012, there was a nationwide increase of 9.6 percent in the number of farmers markets.[11]  Consumers have an interest in the healthfulness and quality of their food that can only be sated by local food production, which minimizes the use of fossil fuels and other transportation pollution. It appears that urban dwellers, many of whom have been negatively affected by insufficient access to healthy food, are becoming increasingly receptive to healthful, local food options.

Urban agriculture can take many different forms and include the production of plant or animal life for human consumption in the urban context instead of in more traditional, rural farming areas.[12]  Urban agriculture relies on resources such as space and nutritious soil, services such as financing and cultivation workers, and products such as tools and vending spaces, to create consumable goods that serve members of the urban area in which they are grown.[13]  The methods of cultivating goods are highly variable, and can include street level plots on small urban lots, on rooftops, or hydroponic growing on contaminated urban lots.[14]

Rooftops provide a particularly green option. When cities are densely developed, there is less urban sprawl and less need for transportation and roadways that cause greenhouse gases, waste water management problems, and other harmful environmental effects. Rooftops make up at least 30% of a typical city’s total land area.[15]  By utilizing these areas for agriculture, buildings can be better insulated from cold and heat to reduce energy consumption, thus decreasing monetary and energy expenses and greenhouse emissions.[16]  The buildings can also be closer together and house more individuals and businesses, which reduces transportation needs and preserves conservation land in suburban and rural areas. And the amount of food that can be produced in these small urban plots is both surprising and socially sustainable. By way of example, Havana, Cuba is able to produce one half of all vegetables consumed in the city within city limits.[17]

There are, however, multiple risks to urban agriculture. Pesticides might be overused or misused.[18]  Livestock on urban parcels can increase the risk of zoonotic diseases, i.e., diseases transferable from animals to humans.[19]  Unsightly or un-maintained agricultural areas may detract from property values, lowering investment in urban areas and decreasing the urban tax base.[20]  There is also a risk that the food itself will become contaminated, particularly when situated near heavy industrial areas or roadways with heavy automobile traffic.[21]  But many of these risks are mitigated by careful zoning regulations, such as those prohibiting farm animals in densely populated areas.[22]

Brownfields pose a particularly interesting combination of challenge and opportunity for developers considering urban agriculture. Brownfields sites are plots on old industrial areas, sometimes marked by substantial contamination.[23]  The type and extent of contamination dictates the cost of a clean-up.[24]  Financial incentives to clean up brownfields are often available to developers, but brownfields sites are often located in areas that, although urban, are not in demand for development.[25]  Moreover, the federal government established the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), which held “potentially responsible parties” accountable to fund clean-up expenses on contaminated sites.[26]  This act stalled development of brownfields sites as developers feared extreme financial liability should they purchase such a site.[27] 

In 2002, Congress amended the CERCLA statute with the Small Business Liability Relief and the Brownfields Revitalization Acts.[28]  Indeed, these acts reduced liability of investors who participated in a cooperative cleanup plan.[29]  States simultaneously created incentives for brownfields development; many states offer voluntary cleanup programs that do not require the stringent standards of CERCLA, but rather allow for less thorough soil remediation when the site is limited to industrial or commercial use.[30]  State programs are problematic for the urban horticulturist, however, because they rely on redevelopment of brownfields for commercial or industrial uses instead of producing clean, environmentally sound plots that can produce safe food.[31]  Brownfields sites present a unique opportunity for urban agriculture. If cleaning the site is economically feasible, agriculture may be a great use that will reduce blight on vacant sites which would otherwise not be desirable to commercial or industrial developers. But there are also risks that these contaminated parcels cannot or will not be adequately remediated prior to use.

Zoning may serve as an intermediary between eager horticulture enthusiasts and skeptical property owners and residents in urban areas. Because of some of the risks, or perceived nuisances, created by urban agriculture, the vast majority of American cities and towns set limits on urban agriculture through their respective zoning codes. Zoning dates back to the early 1900s, as local governments tried to ensure that humans and industry could comfortably coexist in rapidly urbanizing areas.[32]  Many cities created restrictions by “use,” which prevented the mixing of different land uses, such as residential, commercial, and industrial.[33]  When property owners challenged such restrictions on their property in the case of Village of Euclid v. Amber Realty Co., the Supreme Court held that municipal planning is a constitutional use of state police powers.[34]

If you have further questions about zoning, urban agriculture, green development, or land use matters, please contact one of GSK&G’s real estate attorneys at (508) 756-6206.

 

[1] Matthew J. Parlow, Greenwashed?: Developers, Environmental Consciousness, and the Case of Playa Vista, 35 B.C. Envtl. Aff. L. Rev. 513, 514-517 (2008)..[2] Id. at 517.[3] Id.[4] Id. [5] Id. at 519.[6] Id.[7] Id. at 521.[8] Id. at 521.[9] Id. at 522.[10] Stephanie A. Maloney, Putting Paradise in the Parking Lot: Using Zoning to Promote Urban Agriculture, 88 Notre Dame L. Rev. 2551 (2013).[11] Id. at 2560.[12] Kate A. Voigt, Pigs in the Backyard or the Barnyard: Removing Zoning Impediments to Urban Agriculture, 38 B.C. Envtl. Aff. L. Rev. 537, 540 (2011).[13] Id. [14] Id. [15] See Adrienne Lyles-Chockley, Building Livable Places: The Importance of Landscape in Urban Land Use, Planning, and Development, 16 Buff. Envtl. L.J. 95, 114 (2009)..[16] Id.[17] Id.[18] See Voigt, supra note 12, at 545.[19] Id.[20] Id. at 546.[21] See Maloney, supra note 10, at 2561.[22] See Voigt, supra note 12, at 549.[23] Catherine J. LaCroix, Urban Agriculture and Other Green Uses: Remaking the Shrinking City, 42 Urb. Law. 225, 276 (2010).  [24] Id.[25] Id. [26] Id. at 277.[27] Id.[28] Id. at 278.[29] Id. [30] Id. at 279.[31] Id. at 280.[32] Maloney, supra note 10, at 2569.[33] Id.[34] Id.

 

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