Zoning, land use and environmental approvals in the US

A building that complies with every provision of the building code may still be illegal to build if the land use rules do not allow it. Before the building code question of how to build comes the planning question of what may be built where: which uses are allowed on the land, how tall and how large the building may be, how far it must be set back from the street and its neighbors, how much parking it needs, what it should look like in a heritage area, and whether the site is in a flood plain, near a wetland or on contaminated land. These rules are made and enforced separately from the building code, often by different departments and through longer and more political processes.

This lesson explains the US land use system: zoning ordinances, site plan review, variances, rezonings and special permits, subdivision, historic preservation and environmental approvals under federal and state law. Construction managers rarely lead land use approvals, but they must understand them because they control the start date, constrain the design and attach conditions that affect construction.

Who controls land use

Land use regulation in the United States is a power of the states, which delegate it to cities and counties through state zoning enabling acts, most based on the Standard State Zoning Enabling Act of the 1920s. The US Supreme Court upheld zoning as a valid exercise of the police power in Village of Euclid v. Ambler Realty Co. in 1926, which is why traditional use-based zoning is called Euclidean zoning. Most cities adopt a comprehensive or general plan setting long-term policy, and a zoning ordinance with a zoning map that sets the legally binding rules. Some cities, such as Houston, have no conventional zoning but regulate development through other ordinances and private deed restrictions.

Zoning ordinances

A zoning instrument divides the municipality into zones and states, for each zone, the permitted uses and the development standards. Typical standards include:

• Permitted uses: residential, commercial, industrial, institutional or mixed uses, sometimes with conditions.
• Height: maximum building height in meters, feet or stories, sometimes with angular planes to protect neighbors from shadowing.
• Density: floor space index or floor area ratio (FAR), the ratio of gross floor area to lot area; or units per hectare or acre.
• Lot coverage: the maximum percentage of the lot covered by buildings.
• Setbacks or yards: minimum distances from the front, side and rear lot lines.
• Parking and loading: minimum (or, increasingly, maximum) numbers of parking spaces and loading bays, and bicycle parking.
• Landscaping, amenity space and other design standards.

The zoning definition of a term may differ from the building code definition. Height, story, floor area and grade, for example, are often measured differently for zoning than for code purposes. Designers must check each set of rules with its own definitions.

Changing the rules: variances, rezonings and special permits

When a proposal does not meet the zoning ordinance, the owner can seek relief. A variance, granted by a board of zoning adjustment or board of zoning appeals, permits departures from dimensional standards such as setbacks or height, typically on a showing of practical difficulty or unnecessary hardship arising from the property, not created by the owner. Use variances, which allow a use not permitted in the zone, are prohibited or strictly limited in many states. A rezoning, or zoning map amendment, is a legislative decision by the city council after public hearings, and may be combined with a comprehensive plan amendment. Conditional use or special use permits allow uses listed as conditional in a zone, subject to standards and conditions. Planned unit developments allow flexible, negotiated standards for larger sites. State laws in California, Oregon, Montana and elsewhere have recently limited local zoning barriers to housing, for example by allowing accessory dwelling units and duplexes by right.

These approvals take time: a minor variance or dimensional variance may take one to three months, while a rezoning can take a year or more and may be appealed. Construction managers should treat planning approval as the first major milestone in a development schedule and avoid committing to construction dates until approvals are final and appeal periods have expired.

Site plan review and subdivision

Most cities require site plan or development review for commercial, industrial and multifamily projects, checking building location, access, parking, landscaping, lighting, stormwater, utilities and sometimes architectural design. Approval may be administrative, by planning staff, or require a planning commission hearing. Conditions of approval often require the developer to build public improvements, such as sidewalks, turn lanes, water and sewer extensions, and to post performance bonds or other financial guarantees. Dividing land into lots requires subdivision plat approval under the local subdivision ordinance and state law.

Conditions of site plan or development approval often reach into construction: hours of work, construction traffic routes, tree protection fencing, erosion and sediment control, protection of municipal property, and inspections by municipal engineering staff before securities are released. The construction manager should obtain the agreement or approval conditions and build them into the site logistics plan.

Historic preservation

Historic preservation is regulated at several levels. Local historic preservation ordinances designate landmarks and historic districts, and a certificate of appropriateness from a historic preservation commission is required before altering or demolishing them. Section 106 of the National Historic Preservation Act requires federal agencies to consider the effects of projects they fund, license or carry out on properties listed in or eligible for the National Register of Historic Places, through consultation with the State Historic Preservation Officer. Owners of income-producing historic buildings can claim a 20 percent federal rehabilitation tax credit if the work meets the Secretary of the Interior's Standards for Rehabilitation, certified by the National Park Service.

Environmental approvals

Environmental laws at federal, state and local levels affect construction sites. The National Environmental Policy Act (NEPA) requires federal agencies to assess the environmental effects of major federal actions, including projects with federal funding or permits, through categorical exclusions, environmental assessments or environmental impact statements; several states have their own versions, such as the California Environmental Quality Act (CEQA), which applies to many private projects needing local approval. Under the Clean Water Act, construction sites disturbing one acre or more need coverage under a National Pollutant Discharge Elimination System (NPDES) stormwater permit, usually the EPA Construction General Permit or a state general permit, with a stormwater pollution prevention plan (SWPPP). Section 404 permits from the US Army Corps of Engineers are required to place fill in wetlands and other waters of the United States. The Endangered Species Act protects listed species, and federal and state laws govern contaminated sites and brownfield redevelopment. Flood plain management under the National Flood Insurance Program requires buildings in special flood hazard areas to meet elevation and flood-proofing standards.

Other approvals and agreements

Projects often need further approvals and agreements: road occupancy permits for cranes, hoarding and lane closures; crane swing agreements with neighbors; encroachment agreements for tiebacks or shoring under adjacent land or streets; utility connection approvals; airport zoning approvals for tall buildings or cranes near airports; railway setbacks and approvals near rail lines; and noise by-law exemptions for extended work hours. Each has its own lead time. A construction manager's approvals log should track every approval, the responsible party, the submission date, the expected approval date and conditions.

Impact fees, utility connection fees and exactions for parks, schools and roads are payable at permit issue or before occupancy in many jurisdictions, and can be a significant part of project cost. US constitutional law requires such exactions to have an essential nexus and rough proportionality to the impacts of the project, under the Nollan, Dolan and Sheetz decisions.

A good approvals log is a living document. Review it at every owner meeting, update expected dates as reviews progress, and record every condition of approval with a responsible person and a deadline, such as a tree protection inspection before excavation or a landscaping security release after completion. Approvals that expire if work does not start within a stated time, such as some variances and permits, should be flagged clearly so that delays in financing or tendering do not cause them to lapse.