Murray: Zoning boards are the environment’s first line of defense

July 7, 2023 | Real Estate, Zoning & Land Use | Environmental

Zoning boards have a difficult job. They must walk a narrow gauntlet between potentially killing a development project before it has begun by not allowing necessary variances and allowing harm to the environment that could be caused by the project.

Traditionally zoning boards focused on such issues as traffic, parking and whether a proposed project “fits” within a neighborhood. However, most state laws require zoning boards to consider a project’s impact on the environment. Zoning board members are often poorly equipped to address environmental concerns.

Take, for example, a recent zoning application to allow a developer to bring in large amounts of fill to a property next to an environmentally sensitive pond. Local environmental advocates argued that the pond could be hurt if the application was approved. Several well-qualified professors from neighboring universities explained the harm granting the application could cause to the pond and a neighboring bay.

Further, while the State Department of Environmental Conservation had found that the developer committed violations of state law and entered into a Consent Order for these previous violations, this did not end the matter as the zoning board members asserted. The DEC has only limited jurisdiction over the property, and local zoning laws are meant to supplement state regulations. Members of the community, not the DEC, determine what type of development is appropriate for their community and deferring to the DEC ignores local environmental concerns. At the hearing, the zoning board members flatly admitted they were not qualified to weigh environmental concerns, but that has to change.

Limitations placed in zoning laws are not just meant to protect neighborhood character, but also are intended to limit the size, location and other attributes to mitigate against possible environmental harm. However, under New York law, most zoning decisions are Type II matters not subject to review under the New York State Environmental Quality Review Act (SEQRA). Accordingly, when making their decisions, the zoning board members do not even have a basic environmental assessment. So how is a zoning board to evaluate the impact of a variance request on the environment?

Training is one avenue. Zoning board members can receive training on how to evaluate zoning applications in the context of environmental concerns. Members do not have to become environmental experts, but if they are given some working knowledge, they could spot environmental issues that would require a more detailed look.

Another possibility is to increase the type of zoning decisions that are subject to SEQRA. That way at least a minimum amount of environmental assessment would be required. For major projects, an applicant should be required to provide information regarding potential environmental impacts. Smaller and routine applications can be exempt from this requirement.

Finally, zoning boards can be provided access to experienced staff to evaluate a project in the context of its impact on the environment. From my personal experience serving on a zoning board, while zoning boards have the local building department officials to assist them with an application, these officials are more concerned with a building’s structural integrity than the environment surrounding a property. Zoning boards should be able to call on environmental experts at either the state or local level.

The belief that the best form of government is local government because it is closest to the people its decisions most affect is very relevant to having local zoning boards properly consider environmental concerns arising from an application. Who has more at stake regarding land use impact upon the environment than the people who live near the subject property? Zoning board members should come from the community that they cover and should be given the resources to consider environmental factors. That way, there is a better opportunity to protect the environment both in the area as well as overall. As they say, think globally and act locally.

This article appeared in the July 6, 2023, issue of Long Island Business News. ©2023 Long Island Business News.

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