New York Assembly and Senate Pass Community Risk & Resiliency Act, Requiring Creation of Model Local Zoning Laws Addressing Climate Change

On Thursday, June 19, 2014, the New York State Assembly and Senate passed the Community Risk and Resiliency Act (A.6558-B-/S.6617-B). The Act amends the Environmental Conservation Law, Agriculture and Markets Law, and Public Health Law. Among other things, the Act:

  • Requires the New York Department of State (DOS), in cooperation with the Department of Environmental Conservation (DEC), to prepare model local laws that consider future climate risks from sea level rise, storm surges, and flooding to help municipalities prepare for extreme weather events and other climate-change related risks.
  • Requires DEC, no later than January 1, 2016, to promulgate regulations establishing science-based state sea level rise projections.
  • Requires DEC to promulgate rules regulating existing and new petroleum bulk storage facilities that include consideration of climate-change related risks including flooding, storm surges, and rising sea levels.
  • Provides funding, subject to appropriation, to municipalities for local waterfront revitalization planning projects that mitigate future climate risks. Projects may include preparation of new local laws, plans, and studies, and construction projects.
  • Provides funding on a competitive basis, subject to appropriation, to municipalities or not-for-profits toward the cost of coastal rehabilitation projects that consider future climate risks.
  • Allows the Commissioner of the Office of Parks, Recreation and Historic Preservation to enter into maintenance and operation agreements for open space land conservation projects in urban areas or metropolitan park projects with municipalities, not-for-profits, and unincorporated associations, if the project demonstrates consideration of climate-change risks.

The legislation implements some of the recommendations made by Governor Cuomo’s NYS 2100 Commission, established following Superstorm Sandy.

The legislation was approved in both houses by wide margins, and had support from a diverse group of stakeholders including: The Nature Conservancy in New York, The New York League of Conservation Voters, The Business Council of New York State, the General Contractors Association, The Reinsurance Association of America, The American Institute of Architects New York State, The Municipal Arts Society of New York, Audubon New York, Natural Resources Defense Council, Environmental Advocates of New York, and The Adirondack Council.

The New York League of Conservation Voters describes the legislation as “one of the environmental community’s top priorities for this session,” saying passage of the Act is “an important step in preparing the Empire State for a changing climate.”

The Nature Conservancy hails passage of the Act as marking “a transition in New York State from focusing predominantly on reactive disaster relief policies to work to proactively reduce risk and increase community resilience.”

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Click here to read the full text of the Community Risk and Resiliency Act. Click here for the bill history and sponsors.

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A New Tool for Navigating Green Building Codes and Rating Systems

EPA’s new Green Building Standards page provides helpful, easily understandable information about six major model building codes and rating systems (including IgCC, ASHRAE Standard 189.1-2011, and LEED) that communities can use to develop green building programs.

Why does it matter? Because our everyday actions — like how we use buildings — have significant environmental consequences. For example, according to the 2013 New York City Local Law 84 Benchmarking Report, New York City’s buildings accounted for nearly 75% of the City’s total greenhouse gas emissions, 94% of the City’s electrical consumption and 85% of its water usage. As a result, local land use planning and development controls, like building codes and rating systems, offer one of the most powerful tools for adapting to and mitigating against climate change.

As EPA observes:

“American communities have more options than ever for encouraging greener building and development. Many organizations have developed model codes or rating systems that communities may use to develop green building programs or revise building ordinances.”

Indeed, options range from green building ordinances that apply only to municipal construction or renovation projects, to those that apply to private projects that receive public funding, to those that apply to both public and private projects. Further options exist within each of these schemes, including application of requirements based on project size or type of building. With respect to rating systems, some municipalities use LEED rating systems, others use different third-party rating systems, and still others create their own rating systems. Some municipalities permit developers to meet LEED “equivalents” or comply with LEED guidelines without requiring receipt of LEED certification.Even among those that mandate LEED certification (or “equivalents”), different municipalities require different levels of LEED certification and allow waivers under different scenarios. Finally, some ordinances mandate that developers meet certain standards, while others create various incentive schemes. For example, some municipalities have created incentive programs for privately owned green building construction that include the use of direct subsidies, density bonuses and expedited permitting. Additionally, many states, including New York, require LEED for state-owned buildings. The State of New York also provides tax credits for buildings that meet certain green building criteria and requires state agencies to reduce energy use and carbon dioxide emissions and utilize green building principles.

But, with all the options available, it can be difficult to understand the differences between different codes and standards and how the codes and standards work together (or don’t work together). EPA’s new Green Building Standards page provides concise summaries of each code and rating system and, significantly, allows users to compare the individual codes and rating systems.

 

 

 

Call to Action for Local Long Island Leaders: Effects of Climate Change on Long Island Accelerating

Stony Brook University professor and oceanographic scholar Lawrence Swanson’s January 26 Newsday op ed predicts a “troubling future for Long Island Sound.”  As Swanson suggests, for the Long Island Sound, climate change giveth and climate change taketh away — climate change, which created the Sound, is now deteriorating the Sound. And, the pace of that deterioration is rapidly accelerating.

The recently published book, “Long Island Sound, Prospects for the Urban Sea,” from the U.S. Environmental Protection Agency’s Long Island Sound Study (LISS)), summarizes decades of research on the Sound. Swanson, one of the book’s editors, concludes

“considering the projected path of climate change, the future for the Sound and its coastal communities is troubling.”

The study, which began in 1985, shows that sea level in the Sound is rising at a rate greater than the global average — by a half-foot per century more than it was one hundred years ago, and this rise in sea level is anticipated to increase considerably over the next 50 years.

The impact on New York and Connecticut shorelines will be substantial, including

  • more intermittent flooding and permanently flooding of low-lying areas,
  • severe erosion of Long Island’s glacially formed bluffs,
  • degradation of the North Shore harbors,
  • continued disappearance of tidal marshes,
  • shrinking fish-breeding and marine bird habitats, and
  • saltwater intrusion into Long Island’s groundwater, which supplies much of Long Island’s drinking water.

As Swanson laments

“Drowned Meadow may again be an appropriate name for Port Jefferson, as it was from the late 1600s to the early 1800s.”

Swanson, and the book, conclude with a call for more research and action by leaders in the Sound’s coastal communities to prepare for and adapt to accelerated change.

Sea level rise and other climate-related changes pose serious considerations for the core responsibilities of municipalities:  land-use planning and development, infrastructure management, public health, and emergency planning. Local governments in particular have both a great opportunity and responsibility to help their communities mitigate and adapt to LISS’s ominous predictions. In her article Sustainability at the Edge: The Opportunity and Responsibility of Local Governments to Most Effectively Plan for Natural Disaster MitigationTouro Law Center Dean Patricia Salkin cites a 2001 national survey, concluding

“along with building codes, land use planning was ranked most effective as a tool to achieve hazards vulnerability reduction.”

Swanson urges local governments to

  • create detailed maps and charts of coastal areas to improve predictions of flooding from storms,
  • move homes and other structures back from the shoreline to allow for sea level rise and more extensive storm surges,
  • where possible, allow for salt marsh migration,
  • and develop and invest in new technologies to reduce stormwater runoff and sewage effluent from reaching the Sound.
© Sarah Adams-Schoen

© Sarah Adams-Schoen

The book’s editors include Swanson, Mark A. Tedesco, director of the EPA Long Island Sound Office in Stamford, Charles Yarish, a professor at the University of Connecticut, Paul E. Stacey, a researcher at the Great Bay National Estuarine Research Reserve, and Corey Garza, a professor at California State University. The book is available in hardcover or e-book (either in its entirety or by individual chapter) here.

LISS is a cooperative effort between the EPA and the states of Connecticut and New York to restore and protect the Sound. To learn more about LISS, click here.

For more information on rising sea levels, see this article on the Intergovernmental Panel on Climate Change’s (IPCC) newly released Fifth Assessment Report (AR5) which projects greater increases than earlier forecast, but recognizes continuing uncertainties. 

Welcome to the Touro Law Land Use blog

Welcome to the Touro Law Land Use blog.

This blog is designed to promote economic and environmental sustainability by fostering greater understanding of local land use law, environmental law and public policy. It will highlight:

  • New court decisions
  • New local, state, and federal laws and policies
  • Local government actions that guide or impact land use and community development, and
  • Upcoming events of interest to land use practitioners, including developers’ attorneys, land use planners, local government attorneys, architects and engineers, the sustainable development community, and state and local regulators.

The blog’s primary author, Sarah Adams-Schoen is a Professor at Touro Law and Director of Touro Law’s Land Use & Sustainable Development Law (LUSD) Institute. Located on Long Island in Central Islip, New York, the LUSD Law Institute provides practical resources to help create a more economically and environmentally sustainable Long Island, including hosting dialogues like the one pictured below, creating annotated model laws and best practice commentaries, and providing training and education for lawyers and the larger community.Image

Land use and sustainable development law provides a key means for addressing some of Long Island’s most pressing social and environmental concerns, including climate change and natural-disaster resiliency; the creation of thriving urban centers and mainstreets; affordable housing; and the management of water resources, including storm water, waste water, and drinking water.