Elisabeth Haub Law School of Law
Land Use Law Center
Supervisor: John R. Nolon, Distinguished Professor
Blog No. 28 of the Land Use, Human Health, and Equity Project
Editor: Brooke Mercaldi
Contributing Author: Gabriella Mickel [*]
Reversing the Legacy of Redlining: Reducing Exposure to Toxins and Pollutants Through Land Use Law Reform
The disinvestment in lower-income neighborhoods caused by redlining, racial covenants, and zoning provisions prevented property improvement, resulted in dilapidated buildings, lowered real estate prices fueling development of manufacturing and industrial uses, and lowered the cost of polluting infrastructure, such as highways and public works facilities. The legacy of these effects is the exposure of the residents of such neighborhoods to toxins and pollution not found in moderate- or higher-income residential neighborhoods. (See Segregation by Law and the Racial Inequity Pandemic, this paper, and this study). For example, Black Americans are 75% more likely to live in communities where they are exposed to soil, air, and water pollution and experience a higher risk of cancer, asthma, and other life-threatening illnesses.
Using their state-delegated land use regulatory authority, local governments can reverse this historical trend. For example:
Municipalities can target or ban specific land uses and industries. Huntington Park, California revised its zoning code for commercial/office/mixed-use zones to authorize the imposition of conditions in building/operating permits based on proximity to residential areas and the potential for adverse environmental impacts. The city focused on reducing diesel emissions after determining that they pose the most significant health risk to its residents.
Providence, Rhode Island amended its zoning ordinance to ban all high-heat waste processing, including incineration, gasification, pyrolysis, and so-called “chemical recycling.” Such change was the result of work by the Conservation Law Foundation, Clean Water Action, the Audubon Society of Rhode Island, and the Environmental Council of Rhode Island. Compared to coal-fired power plants, waste burning incinerators emit more carbon dioxide, more heavy metals (such as lead and mercury), and more toxic persistent organic pollutants, like dioxins.
Municipalities can regulate building systems and equipment to prevent air pollution. The City Council of Minneapolis adopted Chapter 47 of its municipal code to control air pollution. Using state-created standards for pollution, the local ordinance requires all potentially polluting building systems and equipment to be registered with the city in exchange for a license to operate the equipment. The city’s Health Commissioner is authorized to review plans for new buildings, both commercial as well as residential structures containing four or more dwelling units. The Commissioner may hear complaints, enter to inspect, issue orders to repair or correct violations, and require that the use of offending equipment be ceased until violations are removed. The applicant must pay a fee to the city to cover the costs of administration and enforcement of the air pollution prevention program.
A separate provision of Chapter 47 establishes a public nuisance standard as an alternative means of preventing pollution. The ordinance states, “It shall constitute a public nuisance and be unlawful for any person to make, continue, permit, or cause to be emitted into the open air any dust, gasses, fumes, vapors, smokes and/or odors with objectionable properties and in such quantities as would be likely to cause discomfort or annoyance to a reasonable person of normal sensibilities….” Presumably, this provision strengthens the rights of local residents to prevail in bringing nuisance actions of their own.
Municipalities can designate zones in which the land use permitting process requires actions to mitigate pollution. For example, New York City has three E-designations (air, noise, and hazardous materials) under zoning. An E-designation can be placed on a property if an area is proposed to be rezoned and the environmental analysis shows that development could be adversely affected by noise, air emissions, or hazardous material contamination. Properties with these designations cannot be redeveloped (the owner or developer cannot obtain a building permit or certificate of occupancy) until additional requirements relating to the property’s E-designation are addressed. A remedial action plan must be approved by the New York City Mayor’s Office of Environmental Remediation (OER) before development can proceed. The remedial action plan must also be implemented to the satisfaction of the OER.
Article 38 of San Francisco’s municipal code establishes air pollution exposure zones and requires enhanced ventilation permits for urban infill and sensitive use developments in those zones. The goals of the Article are to maintain and increase the stock of infill housing and other sensitive use development in the city while reducing the risk to human health from air pollutants among occupants of, and visitors to, buildings in the Air Pollutant Exposure Zone. To receive a building permit, developers must submit documentation that the project will comply with enhanced ventilation system standards.
Municipalities can consider reducing exposure to toxins and pollutants in their comprehensive plans. Nashville-Davidson County, Tennessee adopted a policy goal aimed at promoting the safety and wellness of its residents, workers, and visitors by improving the health quality of the county’s air, water, light, and land, both outside and indoors. The near-term plan aims to increase the number of low-income households receiving free healthy home assessments and link them to resources to address any issues found. The long-term plan is to install built and natural infrastructure to mitigate light, air, and noise pollution for residents living near urban interstates and the Nashville International Airport.
For additional resources, the Gaining Ground Information Database is free and features best practice models used by governments to control the use of land in the public interest. Please direct your search toward the Healthy Communities topic.
[*] Gabriella Mickel is a second-year student at the Elisabeth Haub School of Law and Land Use Scholar in the Land Use Law Center.
Brooke Mercaldi is a second-year student at the Elisabeth Haub School of Law and Land Use Scholar in the Land Use Law Center.
The previous blogs in the series are listed here:
- Reframing Sustainability: Introducing the Land Use, Human Health, and Equity Project
- Planning for Public Health: A New Beginning for Land Use Law
- The Role of Density in Combatting Climate Change and COVID-19
- Novel Coronavirus Claims Implicate Age-Old Property Rights Questions
- State & Local COVID-related Emergency Powers: Individual Rights
- COVID-Related Land Use Regulations and Judicial Deference
- Mediation of Eviction Disputes May Hold the Key to the Survival of Small Businesses
- Using Zoning to Help Eliminate Food Deserts: A Few Steps Forward
- Urban Heat Islands and Equity
- Urban Heat Island and Equity: What Can Local Governments Do?
- The Recovery Lease: Preventing Evictions of Commercial Tenants During the Pandemic
- The Role of Hazard Mitigation Planning in Promoting Public Health and Resilience
- Hazard Mitigation Planning: A Case Study
- Complete Streets: Protecting Public Health
- Zoning and Lease Mediation as a Way to Retain Critical Small Businesses
- Segregation by Law and the Racial Inequity Pandemic
- Combating Food Swamps to Improve Equity and Public Health
- The Pandemic Plan for Healthy Buildings
- Remediating Distressed Properties to Improve Public Health
- Housing, a Crucial Determinant of Health
- ADU Introduction
- NIMBY Restrictions to Poison the Prospects of Accessory Dwelling Units to Address Housing Insecurity
- Zoning to Fill the Missing Middle Housing Gap
- Old Tools to Fight Housing Insecurity: Adaptive Reuse and Infill Development
- Racial Impact Analyses
- A New Era of Equity-Based Comprehensive Planning…Finally
- Equity-Based Comprehensive Plans: Land Use Policies to Correct Past Disparities
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