New York Model Local Laws to Increase Resilience (Chapter 1: Basic Land Use Tools for Resiliency)

In June 2019, the New York Department of State published model local laws to increase resilience as part of its required actions under the State’s Community Risk and Resiliency Act (CCRA). The model laws are divided into chapters addressing land use and zoning, wetlands and watercourses, coastline protection, floodplain management, and stormwater control. The first chapter addresses zoning and land use as resiliency tools, outlines how to use zoning policies to accomplish resiliency goals, and includes model language local governments can adapt to that purpose.

The chapter first begins by addressing the flexibility and subsequent utility of zoning regulations. Zoning rules can control building heights, allowable uses, and other aspects of development. Because of zoning’s high impact, it can perpetuate vulnerability or promote resilience. For example, a local government could allow unsafe development practices within or too close to a flood-prone area, increasing overall risk. Conversely, a local government could use zoning rules to protect land features that enhance resilience (such as dunes and vegetation buffers) by:

  • Creating a new subsection in existing zoning law to protect that land feature and applying the requirements to all zones,
  • Creating similar protective language but adding it only to specific districts by amending the laws affecting only those districts, or
  • Creating a new zone to protect that feature (e.g., a ‘forest protection zone’, ‘wetlands protection zone’, etc.) and amend the zoning map to show where that protection zone is located.

Waterfront Zoning Models

Chapter 1 of the model laws then outline three different waterfront zoning district techniques: a waterfront district, a waterfront overlay district, and a waterfront bluff district. The waterfront district is meant to enhance public access, commercial and residential development, and recreational uses on the waterfront. This can be implemented by amending existing zoning laws to include the new district and amending the use and dimensional standards inside the new district. A waterfront overlay district, by contrast, is applied additionally to at least a part of one or more districts to protect a waterfront and prevent erosion. Overlay districts can be created for any purpose, and essentially add a layer of zoning rules or incentives on top of the existing zone(s). One such purpose is to protect waterfront bluffs. Accordingly, the chapter lays out a model zoning mechanism to establish a waterfront bluff overlay district.

The chapter also describes ‘transfer of development rights’ (TDR) programs that move development away from coastal or sensitive areas and toward receiving districts more suited to development by decoupling ownership from the right to develop the property. Essentially, owners of property in a vulnerable area can sell their development rights to another entity, who would use them in an area more suited to development. Following a disaster, special use permits such as temporary dwellings and emergency staging bases can aid recovery where zoning rules conflict with necessary recovery measures.

Building Height, Lot Size, and Lot Coverage Models

The model then addresses how regulating lot size, building height, lot coverage, and requiring setbacks from water bodies and watercourses can promote resilience by reducing development on the ground and allowing natural landscapes to absorb water flow. Raising minimum lot sizes in flood prone areas, for example, can reduce flood risk by reducing the number of buildings created therein. Rezoning may result in non-conformance in lots whose uses conformed to zoning restrictions before the change was made. To address this policy concern, guidance and two model policies are included to aid transitions in such a scenario. Combining lot size rules with lot coverage rules, such as considering impervious structures like driveways and pools as part of that lot’s coverage, can make districts more resilient to flooding. Reducing the amount of lots covered with nonpermeable development allows natural landscapes to absorb stormwater and other runoff. Increasing maximum building height in waterfront districts can allow homeowners and others to protect against flooding by building higher, which can in turn increase square footage while requiring less ground development.

Subdivision Regulations

The model goes on to recommend that subdivisions be implemented according to practices that minimize land disturbance, avoid slopes or flood-prone areas, limit impervious surfaces to control stormwater, and protect natural areas while avoiding negative impacts on public infrastructure. Model language is provided for such practices as prohibiting residential subdivisions in flood plains, requiring subdivision applicants to provide stormwater controls, protecting woodlands, requiring disclosures to potential buyers of the environmental constraints of a subdivided lot, and requiring drainage improvements.

Site Plan Review

In addition to using subdivision reviews to ensure that projects follow resilience practices, site plan review can be employed to review individual plot plans and apply higher siting standards that enhance resilience. Natural resource protection standards, stormwater management standards, and efforts to reduce drainageway encroachment on sites can be applied using site planning as a vehicle. Site planning can help manage stormwater runoff by limiting the development of impervious surfaces (as can zoning practices), using natural features to mitigate runoff, and promoting the preservation of natural features for that and other purposes. Stormwater management is also aided by preventing encroachment on drainage areas, many of which exist due to easements the property owners may not be aware of. Site planning provides an opportunity for outreach, engagement, and education on the location and protection of drainage easements. The model provides suggested language that local governments may use to pursue these zoning and subdivision practices.

Local Road Standards and Transportation Resilience

Lastly, the chapter addresses local road standards and recommends that municipalities consider incorporating resilience into transport infrastructure for both high-volume and low-volume roadways. The model recommends and outlines an implementation process for such standards, and provides overviews of the NYSDOT Highway Design Manual, the NYSDOT Bridge Manual, Highway Standards for Low-Volume Roads (LVRs) in New York State, and guidance on locally-developed standards.

 

The published model does not establish any legally binding standards, and should not be a substitute for a local government’s consultation with an attorney.

Publication Date: June 2019

Related Organizations:

  • New York State Department of Environmental Conservation (DEC)

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  • Best practice
  • Laws
  • Policy analysis/recommendations

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