The quiet revolution revived: Sustainable design, land use regulation, and the states

Minnesota Law Review

Volumn 93, Issue 1, 2008, Pages 231-273

  Bronin, Sara C ^a  

^a UNIVERSITY OF CONNECTICUT   (United States)

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[No Author keywords available]

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EID: 58149277348     PISSN: 00265535     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (251)

1. FRED BOSSELMAN & DAVID CALLIES, THE QUIET REVOLUTION in LAND USE CONTROL (1971).
2. See id. at 1 ("The ancien regime being overthrown is the feudal system under which the entire pattern of land development has been controlled by thousands of individual local governments ⋯").
3. See id. ("The tools of the revolution are new laws⋯ sharing a common theme-the need to provide some degree of state or regional participation in the major decisions that affect the use of our increasingly limited supply of land.").
4. Id. at 3 (arguing that states "are the only existing political entities capable of devising innovative techniques and governmental structures to solve problems ⋯ beyond the capacity of local governments acting alone").
5. See Carol M. Rose, Planning and Dealing: Piecemeal Land Controls as a Problem of Local Legitimacy, 71 CAL. L. REV. 837, 842-43 (1983).
6. Carol M. Rose, New Models for Local Land Use Decisions, 79 NW. U. L. REV. 1155, 1156 (1985) (focusing entirely on local modes of land use decision making).
7. David L. Callies, The Quiet Revolution Redux: How Selected Local Governments Have Fared, 20 PACE ENVTL. L. REV. 277, 296-97 (2002) ("Local land use controls have not withered away ⋯ [N]ot only have traditional land use controls such as zoning and more flexible 'growth management' plans and regulations been used, but there is a growing trend toward environmental protection at the local level as well.").
8. See Shelley Ross Saxer, Local Autonomy or Regionalism?: Sharing the Benefits and Burdens of Suburban Commercial Development, 30 IND. L. REV. 659, 678 (1997) ("This shift in responsibility from local to state control has not yet occurred as predicted, though some scholars continue to see a trend in growth management programs toward greater state intervention in the local planning and implementation process.").
9. This Article uses the terms "green building" and "sustainable design" interchangeably. For a broad definition of green building, see OFFICE OF THE FED. ENVTL. EXECUTIVE, THE FEDERAL COMMITMENT TO GREEN BUILDING: EXPERIENCE AND EXPECTATIONS, at viii, http://ofee.gov/sb/fgb-report.pdf (last visited Oct. 16, 2008) (defining green building as "the practice of (1) increasing the efficiency with which buildings and their sites use energy, water, and materials, and (2) reducing building impacts on human health and the environment, through better siting, design, construction, operation, maintenance, and removal-the complete building life cycle").
10. See infra Part II.B.
11. Bureau of Nat'l Affairs, Green Buildings Helping the Environment, the Bottom Line, ENVTL. COMPLIANCE BULL., June 18, 2007, at 208, 208.
12. See infra Part III.
13. See infra Part V.
14. See A. Dan Tarlock, Land Use Regulation: The Weak Link in Environmental Protection, 82 WASH. L. REV. 651, 652-53 (2007) (explaining the difference between environmental and land use law in light of the type of property being regulated). Unlike land, "[a]ir and water are and always have been common property resources, and users have never had any expectation of exclusive control."
15. Id.
16. This Article focuses on Euclidean zoning, named for the Supreme Court decision which confirmed the legality of zoning. See Vill. of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926).
17. This view is supported by the finding that governmental actors-which are immune from the land use rules they impose on private actors-have integrated green building into public projects.
18. Richard Briffault, Our Localism: Part I-The Structure of Local Government Law, 90 COLUM. L. REV. 1, 3 (1990) [hereinafter Briffault, Our Localism-Part I];
19. see also Richard Briffault, Smart Growth and American Land Use Law, 21 ST. lOUIS U. pUB. L. REV. 253, 270 (2002) ("States as well as local governments have long supported a strong role for local governments in land use regulation.").
20. Rose, supra note 5, at 839.
21. Tarlock, supra note 14, at 653.
22. See John F. Hart, Land Use Law in the Early Republic and the Original Meaning of the Takings Clause, 94 NW. U. L. REV. 1099, 1107-31 (2000) (tracing the historical roots of land use regulation to correct the history used by scholars who support an expansive reading of the regulatory takings clause).
23. See id.
24. See WILLIAM J. NOVAK, THE PEOPLE'S WELFARE: LAW AND REGULATION IN NINETEENTH-CENTURY AMERICA 56-58 (1996) (identifying early building-related fire ordinances and stating that "[f]ire laws proliferated in almost every major settlement").
25. See ROBERT C. ELLICKSON & VICKI L. BEEN, LAND USE CONTROLS 75 (3d ed. 2005).
26. NOVAK, supra note 22, at 80.
27. See BOSSELMAN & CALLIES, supra note 1, at 2 ("From the beginning the state governments saw land use control as an urban problem.").
28. See generally Robert G. Bone, Normative Theory and Legal Doctrine in American Nuisance Law: 1850 to 1920, 59 S. CAL. L. REV. 1101 (1986) (describing courts' approaches to private nuisance and offering three models of judicial decision making).
29. Cf. id. at 1124 ("Nineteenth century nuisance models based on natural property rights spawned a morass of doctrine incapable of rationalization within a single internally consistent normative theory."). Under nuisance theory, a polluting factory might not be able to locate next to a residence, but only if the homeowner sued in court and the court found that the factory created a nuisance which offended, interfered with, or encroached upon the homeowner's use of his land.
30. Vill. of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926).
31. ADVISORY COMM. ON ZONING, U.S. DEP'T OF COMMERCE, A STANDARD STATE ZONING ENABLING ACT (1926).
32. Id. § 1.
33. See ELLICKSON & BEEN, supra note 23, at 74-76 (describing the states' relationship with the Standard State Zoning Enabling Act and the manner in which states modify it).
34. See, e.g., City of Newton v. Belger, 10 N.E. 464, 467 (Mass. 1887) (deciding that a law permitting city alderman to deny building permits for homes deemed not "handsome" "is broader than the [state] statute [authorizing safety controls] in its scope, and cannot be justified as a reasonable exercise of the authority conferred by the statute").
35. Design controls do not typically apply to the interior of a building, although some historic interiors may be governed by special rules which encourage their preservation. Restrictions do not apply to "invisible" green technologies such as geothermal wells, drilled around a structure to capture heating and cooling energy from groundwater. See, e.g., Scott H. Rothstein, Comment, Takings Jurisprudence Comes in from the Cold: Preserving Interiors Through Landmark Designation, 26 CONN. L. REV. 1105,1110 (1994).
36. See, e.g., Eric T. Freyfogle, The Particulars of Owning, 25 ECOLOGY L.Q. 574, 580 (1999) ("Sensible land use decisions require knowledge of the land itself, in its many variations. One can categorize land parcels based on slope, soil type, drainage, and vegetation, but no list of factors can ever capture the land's full diversity. Local people typically know the land better than outsiders.").
37. There are more sinister implications of the local autonomy argument, which this Article does not consider. For example, zoning has often been used as a tool to segregate communities by race and class. See Saxer, supra note 8, at 681-82 (asserting that the demand for local control is a guise for economic parochialism).+
38. Margaret Jane Radin, Property and Personhood, 34 STAN. L. REV. 957, 957 (1982).
39. Id.;
40. see also id. at 991-1002 (arguing that the Fourth Amendment protection against searches of homes, the expansion of tenants' rights, and increased privacy rights in the home are three areas of law premised on the notion of personhood).
41. See WILLIAM A. FISCHEL, THE HOMEVOTER HYPOTHESIS 51-57 (2001) (describing how fiscal zoning is used by homeowners who vote to preserve their own homes' property values).
42. Id. at 5.
43. See Richard Briffault, Our Localism: Part II-Localism and Legal Theory, 90 COLUM. L. REV. 346, 396-97 (1990) (summarizing the views of Professor Gerald Frug and other scholars on this point).
44. Gerald E. Frug, Beyond Regional Government, 115 HARV. L. REV. 1763, 1789 (2002).
45. Briffault, supra note 40, at 452.
46. Briffault, Our Localism-Part I, supra note 17, at 113 ("State governments rarely consider, let alone adopt, measures that directly constrain local legal authority.");
47. Frug, supra note 41, at 1789 ("Having delegated considerable authority over these issues to local governments, state governments are largely unwilling to override their decisions even though they have the power to do so.").
48. Briffault, Our Localism-Part I, supra note 17, at 112 (asserting that courts "frequently adhere to a localist view of local power, holding local autonomy, particularly local control of the public schools and land use, to be a legal value potent enough to withstand challenges based on claims of equality, individual rights and local accountability for the external effects of local actions").
49. See, e.g., Brian D. Anderson, Legal and Business Issues of Green Building, WIS. LAW., Aug. 2006, at 10, 12 ("[T]he U.S. Green Building Council has taken the lead in establishing a formalized green building rating system.").
50. U.S. GREEN BLDG. COUNCIL, GREEN BUILDING RATING SYSTEM FOR NEW CONSTRUCTION & MAJOR RENOVATIONS (LEBD-NC) VERSION 2.1 v-vi (2002, rev. 2003), available at https://www.usgbc.org/Docs/LEEDdocs/LEED-RS-v2-l.pdf.
51. LEED levels include the basic certification level, then silver, gold, and platinum. Id. at vi.
52. Id. at v.
53. Id. at vi.
54. Id.
55. See id. at v-vi.
56. See, e.g., Auden Schendler & Randy Udall, LEED Is Broken; Let's Fix It, gRIST, Oct. 26, 2005, http://www.grist.org/comments/ soapbox/2005/10/26/leed/index1.html ("LEED has become costly, slow, brutal, confusing, and unwieldy, a death march for applicants administered by a soviet-style [sic] bureaucracy that makes green building more difficult than it needs to be &.").
57. Theodore C. Taub, Materials for Discussion Regarding Green Buildings, 2006 A.B.A.-A.L.I. COURSE OF STUDY 399, 409, available at SM004 ALI-ABA 399 (Westlaw).
58. Id.
59. The National Association of Home Builders has developed a set of green-building guidelines targeted for the mainstream home builder. See NAT'L ASS'N OF HOME BUILDERS, NAHB MODEL GREEN HOME BUILDING GUIDELINES (2006), available at http://www.nahbgreen.org/ content/pdf/nahb-guidelines.pdf.
60. The Green Globes Program has been developed to lower administrative costs for applicants as compared to LEED. See Green Building Initiative, What is Green Globes?, http://www.greenglobes.com/about.asp (lastvisited Oct. 16, 2008). A handful of projects in this country have utilized Sweden's "The Natural Step," a broad environmental initiative based on scientific consensus with some impact on green building.
61. See Judith Perhay, The Natural Step: A Scientific and Pragmatic Framework for a Sustainable Society, 33 S.U. L. REV. 249, 282, 295 (2006) (describing the Natural Step initiative and the impact on energy efficiency and ninety-seven percent recyclability of rooms in the Scandic international hotel chain).
62. Materials Flow and Sustainability, FACT SHEET (U.S. Geological Survey), June 1998, http://pubs.usgs.gov/fs/fs-0068-98/fs-0068- 98.pdf.
63. See David Malin Roodman & Nicholas Lenssen, A Building Revolution: How Ecology and Health Concerns Are Transforming Construction 5 (Worldwatch Paper No. 124, 1995).
64. U.S. GREEN BLDG. COUNCIL, supra note 46, at 43-44 (awarding one point if such materials account for twenty percent of the materials used and an additional point if such materials account for fifty percent of the materials used).
65. Id. at 37-42 (requiring that builders utilize recycling areas and allowing builders to receive more credits for reusing materials and incorporating recycled materials).
66. FRANKLIN ASSOCS., CHARACTERIZATION OF BUILDING-RELATED CONSTRUCTION AND DEMOLITION DEBRIS IN THE UNITED STATES ES-2 (1998), http://www.epa.gov/osw/hazard/generation/sqg/c&d-rpt.pdf (indicating in a report prepared for the epa that demolition accounts for forty-eight percent of this waste, renovation forty-four percent, and construction site waste eight percent);
67. OFFICE OF SOLID WASTE, U.S. ENVTL. PROT. AGENCY, MUNICIPAL SOLID WASTE in the UNITED STATES, 2005 FACTS AND FIGURES 4 (2006), available at http://www.epa.gov/osw/nonhaz/ municipal/pubs/mswchar05.pdf (providing a figure for municipal solid waste, 245.7 million tons, excluding construction and demolition debris and certain industrial wastes);
68. see also Charles J. Kibert, Policy Instruments for a Sustainable Built Environment, 17 J. LAND USE & ENVTL. l. 379, 380 (2002) (indicating that over 2.1 billion metric tons of materials are incorporated into buildings and infrastructure each year).
69. U.S. GREEN BLDG. COUNCIL, supra note 46, at 34-36, 39-42.
70. Energy Star, The First Step to Improving Water Efficiency, http://www.energystar.gov/index.cfm?c=business.bus-water (last visited Oct. 16, 2008).
71. Stephanie J. Battles & Eugene M. Burns, Trends in Building-Related Energy and Carbon Emissions: Actual and Alternate Scenarios (Aug. 21, 2000), http://www.eia.doe.gov/emeu/efficiency/aceee2000.html (discussing primary energy use). "Primary energy is the amount of site or delivered energy plus losses that occur in the generation, transmission, and distribution of the energy."
72. Id. at n.2;
73. see also Smart Communities Network, Green Buildings Introduction, http://www.smartcommunities.ncat.org/buildings/gbintro.shtml (last visited Oct. 16, 2008) (discussing electricity use).
74. See Bureau of Nat'l Affairs, supra note 11.
75. Smart Communities Network, supra note 63;
76. see also Battles & Burns, supra note 63 (noting that between 1990 and 2000 buildings accounted for forty-eight percent of the increase in U.S. carbon emissions).
77. See, e.g., Jennifer R. DuBose et al., Analysis of State-Wide Green Building Policies, J. GREEN BUILDING, Spring 2007, at 161, 173-74 ("[D]ocumentation required for LEED certification is sometimes perceived as cumbersome and costly. ⋯ Cost is one of the biggest inhibitors to green building (with or without LEED certification). ");
78. Rosemary Winters, "Green" Building Products Can Prove Profitable in Salt Lake City, SALT LAKE TRIB., Feb. 24, 2004, at El ("One of the largest barriers to popularizing green-building techniques is the perception that such techniques cost more.");
79. Nat'l Ass'n of Home Builders, Codes and Standards, http://www.nahb.org/ generic.aspx?genericContentID=3093&print=true (last visited Oct. 16, 2008) (describing the need for cost-effective green-building guidelines as one of the National Association of Home Builders' policy concerns).
80. GREG KATS ET AL., THE COSTS AND FINANCIAL BENEFITS OF GREEN bUILDINGS 15 (2003), http://www.usgbc.org/Docs/News/News477.pdf (studying thirty-three office and school projects to come up with an average cost premium of 1.84 percent on green buildings);
81. LISA FAY MATTHIESON & PETER MORRIS, COSTING GREEN: A COMPREHENSIVE COST DATABASE AND BUDGETING METHODOLOGY 3 (2004), http://www.usgbc.org/Docs/Resources/Cost-of-Green-Full.pdf (analyzing six hundred projects located in nineteen states and concluding that "many projects achieve sustainable design within their initial budget, or with very small supplemental funding").
82. The cost premium for green building is likely to steadily fall because the cost of green-building materials tends to drop over time. See, e.g., Roodman & Lenssen, supra note 57, at 43 (noting that between 1980 and 1995 the cost of producing electricity from solar panels fell ninety percent due to technological advances and improved manufacturing techniques).
83. See KATS ET AL., supra note 67, at v.
84. Id. at 85.
85. PUB. TECH., INC. & U.S. GREEN BLDG. COUNCIL, SUSTAINABLE BUILDING TECHNICAL MANUAL xxi (1996), available at http://www.wbdg.org/ccb/SUSTDGN/sbt.pdf;
86. see also KATS ET AL., supra note 67, at 65 (restating eight studies which indicated that improved lighting control, including more natural light, increased worker productivity by a mean of 7.1 percent).
87. See Barnaby J. Feder, Environmentally Conscious Developers Try to Turn Green Into Platinum, N.Y. TIMES, Aug. 25, 2004, at C5 (quoting Greg Kats).
88. See OFFICE OF AIR AND RADIATION, U.S. ENVTL. PROT. AGENCY, THE INSIDE STORY: A GUIDE TO INDOOR AIR QUALITY, http://www.epa.gov/iaq/pubs/insidest.html (last visited Oct. 16, 2008) (citing the ninety percent figure and describing the health concerns associated with indoor air pollution).
89. This Article does not address homeowners associations, which are governed by a resident board and, according to the Community Associations Institute, now number over three hundred thousand. Cmty. Ass'ns Inst., Industry Data, http://www.caionline.org/about/facts.cfm (last visited Oct. 16, 2008).Homeowners associations are sometimes governed alongside local governments by statewide legislation this Article attempts to promote. See, e.g., Trac Watson, States Remove Local Barriers to Eco-Friendly Homes, USA TODAY, May 14, 2008, at A2 ("Since 2005, eight states-including four last year-have enacted laws to abolish stringent rules imposed by some homeowners associations and local agencies on residents who want to power their homes with the sun or wind.");
90. see also Robert C. Ellickson, Cities and Homeowners Associations, 130 U. PA. L. REV. 1519, 1568-80 (1982) (describing the powers of homeowners associations relative to cities' powers).
91. See ENERGY INFO. ADMIN., 2003 COMMERCIAL BUILDINGS ENERGY CONSUMPTION SURVEY: DETAILED TABLES 117, 125 (2006), available at http://www.eia.doe.gov/emeu/cbecs/cbecs2003/detailed-tables-2003/ pdf2003/alltables.pdf (indicating that local governments own nearly ten times as many buildings as the federal government and over twice as much square footage as state governments).
92. See supra Part I.
93. See, e.g., KATS ET AL., supra note 67, at 13 (attributing Pennsylvania's success in building green structures to the state's ability to negotiate with green product manufacturers).
94. In California, for example, "politicians vie to out-green one another. Some 40 of its legislators drive hybrid cars. [Governor] Schwarzenegger, not to be bested, has converted one of his fuel-swigging Hummers to run on hydrogen." J. Jared Snyder, Regional and State Programs: Measuring, Allocating, Trading, and Complying, 2007 A.B.A-A.L.I. COURSE OF STUDY 91, available at SM106 ALI-ABA 91 (Westlaw).
95. Feder, supra note 71.
96. See FED. REAL PROP. COUNCIL, FY 2005 FEDERAL REAL PROPERTY REPORT 13 (2006), available at http://www.gsa.gov/gsa/cm-attachments/GSA-DOCUMENT/ FRPR-5-30-updated-R2872-m-0Z5RDZ-i34K-pR.pdf (citing a three billion figure).
97. See Cal. Exec. Order No. S-20-04 (Dec. 14, 2004), available at http://www.dot.ca.gov/hq/energy/ExecOrderS-20-04.htm (requiring that grid-based energy usage of public buildings in California decrease twenty percent by 2015 and that all public building construction achieve LEED silver standard); S.B. 5509, 59th Leg., Reg. Sess. (Wash. 2005) (requiring all public buildings in Washington receiving state funding to achieve LEED silver standard);
98. CONN. GEN. STAT. § 16a-38k (2007) (requiring that new public construction projects which cost over five-million dollars achieve LEED silver standard).
99. BROOKS RAINWATER, AM. INST. OF ARCHITECTS, LOCAL LEADERS IN SUSTAINABILITY 51-56 (2008), available at http://www.aia.org/SiteObjects/files/ LLinSustain(full)-final.pdf;
100. see also U.S. CONFERENCE OF MAYORS, ENERGY AND ENVIRONMENT BEST PRACTICES GUIDE 4-22 (2007), available at http://www.usmayors.org/uscm/best-practices/ EandEBP07.pdf (identifying twenty-six cities that have implemented some green-building initiatives). Less than half of the cities with municipal green-building requirements have addressed private actors.
101. See RAINWATER, supra at 51-56.
102. See Leslie Mann, Green from the Get-go, CHI. TRIB., Mar. 11, 2007, § 16, at 1;
103. Editorial, The Greening of Beantown, HARTFORD COURANT, Apr. 17, 2007.
104. But see Jenna Ross, Recent Actions, STAR TRIB. (Minneapolis), Aug. 15, 2007, at W6 (describing how Eden Prairie, Minnesota, rejected building a community center with a green roof, even though that roof could have reduced energy costs over the long run).
105. See N.Y. CITY, N.Y., CHARTER § 224.1 (2007).
106. See Tristan Roberts, Historic Preservation and Green Building: A Lasting Relationship, ENVTL. BUILDING nEWS, Jan. 2007, available at http://www.ncshpo.org/PDFs/2007AM/LEED/ HPandGreenBuildingArticle.pdf ("While green builders who value energy efficiency may not always see eye to eye with preservationists who treasure old windows and other existing features, both groups share a great deal of common ground and have a lot to teach each other.");
107. Historic Warehouse Building Also Environment Friendly, INTERMOUNTAIN CONTRACTOR, Jan. 1, 2006, at 5 (describing a building in Ogden, Utah which was among the first to receive both LEED certification and the twenty percent federal historic tax credit);
108. David Hogg, There's an Old Mill Now Gone Green, YORKSHIRE POST (Leeds), Sept. 14, 2005 (describing an old mill which includes solar panels, self-composting toilets, a river turbine, and other green-building technologies).
109. See Randall S. Abate, Kyoto or Not, Here We Come: The Promise and Perils of the Piecemeal Approach to Climate Change Regulation in the United States, 15 CORNELL J. L. & PUB. POL'Y 369, 384-85 (2006) (describing how 155 mayors signed a statement calling on the federal government to address climate change and 132 mayors representing 29 million citizens have embraced the Kyoto Protocol mandates for their cities);
110. Cinnamon Carlarne, Climate Change Policies an Ocean Apart: EU and US Climate Change Policies Compared, 14 PENN ST. ENVTL. L. REV. 436, 445-46 (2006) ("Faced with weak federal efforts to address climate change, states such as California and New York and cities such as Portland and Philadelphia are choosing to follow in the footsteps of the European Union.");
111. John R. Nolon, In Praise of Parochialism: The Advent of Local Environmental Law, in NEW GROUND: THE ADVENT OF LOCAL ENVIRONMENTAL LAW 3, 3 (John R. Nolon ed., 2003) ("[Municipalities enact] local comprehensive plans expressing environmental values, zoning districts created to protect watershed areas, environmental standards contained in subdivision and site plan regulations, and stand-alone environmental laws adopted to protect particular natural resources such as ridgelines, wetlands, floodplains, stream banks, existing vegetative cover, and forests.").
112. See U.S. CENSUS BUREAU, U.S. DEP'T OF COMMERCE, GOVERNMENT ORGANIZATION: 2002 CENSUS OF GOVERNMENTS 5 (2002), available at http:// www.census.gov/prod/2003pubs/gc021xl.pdf (providing the 38,967 figure);
113. Bureau of Nat'l Affairs, supra note 11, at 208 (noting that seventy-five local governments have committed to following LEED guidelines). These cities include Chicago, Dallas, Denver, Eugene, Portland, San Jose, Santa Monica, Scottsdale, and Seattle.
114. See Christopher D. Montez & Darren Olsen, The LEED Green Building Rating System and Related Legislation and Governmental Standards Concerning Sustainable Construction, CONSTRUCTION LAW., Summer 2005, at 38, 41-42.
115. The National League of Cities, a nationwide nonprofit which focuses on municipal initiatives, has never formally opined on green building. The U.S. Conference of Mayors, another such group, has only recently begun to encourage its members to consider sustainable design by compiling a best practices manual.
116. See U.S. CONFERENCE OF MAYORS, supra note 81. The Conference of Mayors, however, has attempted to address climate change with an agreement signed by 672 mayors.
117. See Mayors Climate Prot. Ctr., List of Participating Mayors, http://www.usmayors.org/climateprotection/list.asp (last visited Oct. 16, 2008);
118. Mayors Climate Prot. Ctr., U.S. Conference of Mayors Climate Protection Agreement, http://www.usmayors.org/climateprotection/agreement.htm (last visited Oct. 16, 2008).
119. The mayors' efforts have been criticized for failing to meet their goals. See JOHN BAILEY, LESSONS FROM THE PIONEERS: TACKLING GLOBAL WARMING AT THE LOCAL LEVEL 3 (2007), available at http://www.newrules. org/de/pioneers.pdf ("In all [ten study] cities [chosen from among those cities who signed the U.S. Mayors Climate Protection Agreement], community-wide emissions have risen since 1990, sometimes dramatically ⋯.").
120. See Beverly A. Rowlett, Aesthetic Regulation Under the Police Power: The New General Welfare and the Presumption of Constitutionality, 34 VAND. L. REV. 603, 622-23 (1981).
121. See generally PETER GEVORKIAN, SOLAR POWER IN BUILDING DESIGN (2007) (describing the history, technology, and design of photovoltaic panels).
122. See Isabelle Groc, When the Joneses Go Solar, HIGH COUNTRY NEWS, July 23, 2007, at 6 (noting that solar panels installed in the 1970s often are not maintained and become dilapidated and unattractive).
123. See, e.g., David Collins, Not So Hot, SANTA FE NEW MEXICAN, Jan. 8, 2006, at Il (describing the reluctance of the Santa Fe Historic Design Review Board to allow solar panels);
124. Tom Sharpe, Solar Collectors to be Removed From House in Historic District, SANTA FE NEW MEXICAN, July 23, 2005 (chronicling the experience of one Santa Fe couple forced to remove solar panels worth $40,000 from their home in a historic district).
125. See, e.g., Lorraine Mirabella, Marylanders Are Finding Energy Elsewhere, CHI. TRIB., Jan. 18, 2004, § 16, at 5P (describing how a Takoma Park, Maryland homeowner hid thirty-six solar panels on the back of his roof).
126. Sara Schaefer Muñoz, An Inconvenient Turbine: Conservation vs. Preservation, WALL ST. J., July 12, 2007, at B5.
127. Rachel Hatzipanagos, Save History or Save the Planet: Environmentalists, Preservationists Seek Common Ground on Renovation Plans, NEW ORLEANS TIMES-PICAYUNE, Aug. 5, 2007, at 46 (noting that this decision resulted in fewer LEED points, since LEED emphasizes having new products).
128. See Muñoz, supra note 93, at B6.
129. Thomas Hayden, Could the Grass Be Greener?, U.S. NEWS & WORLD REPORT, May 16, 2005 (quoting the study's lead author, who now works at NASA).
130. See U.S. GREEN BLDG. COUNCIL, supra note 46, at 16-17.
131. "Xeriscape" is a style of landscape design that reduces irrigation and maintenance needs. See FLA. STAT. § 373.185(b) (2007) (describing "xeriscape" as "quality landscapes that conserve water and protect the environment and are adaptable to local conditions and which are drought tolerant" and noting that the principles of xeriscape include "planning and design, appropriate choice of plants, soil analysis, ⋯ efficient irrigation, practical use of turf, appropriate use of mulches, and proper maintenance").
132. See, e.g., Muñoz, supra note 93, at B6 (providing two examples of companies designing new energy-efficient products that fit in with existing surroundings).
133. See supra text accompanying note 86 (explaining that relatively few localities nationwide address green-building issues).
134. See Sanya Carleyolsen, Tangled in the Wires: An Assessment of the Existing U.S. Renewable Energy Legal Framework, 46 NAT. RESOURCES J. 759, 787 (2006) (suggesting that a builder often cannot find information about green technologies, such as solar panels, and consequently "will not know whether ⋯ he or she can simply confirm that the panels conform to height and setback regulations").
135. The term "wind turbine" may be substituted for the word "windmill" in this Article.
136. See Carleyolsen, supra note 101, at 786.
137. See, e.g., Kay Longcope, Strong Gusts of Opposition Halt Many Windmill Plans Zoning Laws, Neighbors' Objections Leave Many Projects Unbuilt, BOSTON GLOBE, June 28, 1981 (describing how many Massachusetts local governments ban structures more than thirty-five feet tall, making it difficult for landowners to construct windmills).
138. Mechanisms such as variances and other exceptions to zoning ordinances cause inconsistent treatment among applicants. See Carleyolsen, supra note 101, at 782 (describing zoning ordinances as "flexibly applied").
139. See, e.g., Kennedy Smith, Once Stymied, Now Costlier, Mississippi Avenue Lofts in Portland Move Forward, DAILY J. COM. (Portland, Or.), July 20, 2007 (quoting Portland, Oregon developers who say the progress of green building is constrained by subjective design controls);
140. A Rebuilding Block: Portion of East Third Street Undergoes a Renaissance, LEXINGTON HERALD-LEADER (Lexington, Ky.), Sept. 5, 2006, at C1 (describing how a property owner called the historic review board "a hassle to deal with").
141. Agenda, Board of Zoning Appeals Meeting, City of Belle Meade (Apr. 17, 2007), http://www.citybellemeade.org/cityhall/agnd.BZ04172007.pdf (indi-cating the denial of Gore's application).
142. See Shari A. Shapiro, Local Regulations Still Catching Up to Meet Green-Building Requirements, CENT. PENN BUS. J., July 13, 2007, at 16.
143. See Rose, supra note 5, at 840-42.
144. See supra note 80 (noting several states that incorporate the LEED rating system into statewide mandates).
145. BOSTON, MASS., ZONING CODE arts. 37-3, 37-4, 80B-6(2)(vii) (2007) (stating that any proposed project that is subject to the city's "Large Project Review" must demonstrate that it would meet the appropriate level of LEED certification). In calculating LEED compliance, the city may award a bonus point if the project involves certain historic structures.
146. Id. art. 37 app. A.
147. See City of Boulder Residential Bldg. Guide, Green Points Application 4-9, http://www.bouldercolorado.gov/files/PDS/codes/1001-web.pdf (last visited Oct. 16, 2008).
148. Anthony S. Guardino, Green Revolution: New Local Regulations Address Global Warming, N.Y.L.J., July 25, 2007, at 8.
149. See id.
150. See supra text accompanying notes 66-72.
151. As one of hundreds of examples throughout the country, the author has worked on documents for a major project in New Haven, Connecticut, named 360 State Street, in which the agreement between the developer and the City of New Haven required that the developer achieve LEED certification for the building.
152. Cf. Sara C. Galvan, Rehabilitating Rehab Through State Building Codes, 115 YALE L.J. 1744, 1771-72 (2006) (describing how building code officials, whose departments are understaffed and underfunded, are among those most resistant to reform in building code texts). The understaffing of city planning departments has been documented only on a city-by-city basis.
153. See, e.g., CITY OF L.A., OFFICE OF THE CONTROLLER, PERFORMANCE AUDIT OF THE DEPARTMENT OF CITY PLANNING'S CASE PROCESSING FUNCTION 24 (2005), available at http://www.lacity.org/ctr/ audits/ctrauditsl8033210-10312005.pdf (identifying an eighteen percent vacancy rate in staff positions);
154. S.F. cHAPTER OF THE AM. INST. OF ARCHITECTS & S.F. PLANNING & URBAN RESEARCH ASS'N, PLANNING THE CITY'S FUTURE 8 (2004), http://www.spur.org/documents/pdf/040301-report-01.pdf (calling the planning department "severely understaffed").
155. LAKE COUNTY, ILL., BUILDING CODE § 326 (2007) (requiring builders who elect to use the alternative code meet all of the requirements of the code).
156. 119.Smart Communities Network, New Pattonsburg, Missouri Solar Codes & Ordinances, http://www.smartcommunities.ncat.org/codes/solar.shtml (last visited Oct. 16, 2008).
157. See CITY OF CHICAGO, BUILDING HEALTHY, SMART, AND GREEN 6 (2005), available at http://egov.cityofchicago.org/webportal/COCWebPortal/COC-EDITORIAL/ BHSGAgenda-1.pdf ("The City will review the Chicago Building Code to identify barriers to building green, and will work to create a Green Building Code.").
158. But see Ryan Morgan, Economy vs. History in Codes City Rethinks Environmental, Historic Preservation Goals, BOULDER DAILY CAMERA, Feb. 19, 2006, at A1 (describing how the city council of Boulder, Colorado, ordered its staff to investigate instances in which green building and historic preservation ordinances come into conflict).
159. The Standard Zoning Enabling Act, adopted by many states, empowers localities to create ordinances to regulate and restrict land use, but does not mandate that such localities revise their ordinances. ADVISORY COMM. ON ZONING, U.S. DEP'T OF COMMERCE, A STANDARD STATE ZONING ENABLING ACT (1926). Similarly, under the Standard City Planning Enabling Act, localities are permitted, in their discretion, to "make, adopt, amend, add to, or carry out a municipal plan⋯ and create by ordinance a planning commission⋯." ADVISORY COMM. ON CITY PLANNING & ZONING, U.S. DEP'T OF COMMERCE, A STANDARD CITY PLANNING ENABLING ACT 7 (1928).
160. See, e.g., L.A., CAL., MUNICIPAL CODE ch. 1, art. 2 § 12.21.1(B)(3)(a), available at http://www.amlegal. com/nxt/gateway.dll?f=templates&fn=default.htm&vid=amlegal:lamc-ca (exempting solar panels from its height rules, as long as the property owner sets the structure back from the roof perimeter the same number of feet as the panel structure exceeds the relevant height limit);
161. Joel Burgess, City Area Set to Get Historic Status, ASHEVILLE CITIZEN-TIMES, Dec. 28, 2006, at 1B (explaining how an Asheville official suggested guidelines addressing the energy-efficient insulation of historic single-pane windows and created more relaxed rules for solar panels in a newly created historic district).
162. See, e.g., Chelsea Phua, Solar Fee Waiver Mulled, SMUD Proposes Program for Efficient Energy Use and Green Technology, SACRAMENTO BEE, Feb. 5, 2007, at B1 (describing how the Sacramento Municipal Utility District proposed to waive building permit fees for projects with solar panels, foregoing only five to ten thousand dollars in revenue, and how Elk Grove, California, adopted a similar ordinance);
163. Stephen Wall, Green Campaign Wins Green Light, SAN BERNARDINO COUNTY SUN, Aug. 29, 2007 (describing how the San Bernardino County Board of Supervisors waived building permit fees for owners of existing buildings who "install solar panels, wind turbines, tankless water heaters, and energy-efficient air conditioning systems").
164. See CITY OF SCOTTSDALE, ARIZ., GREEN BUILDING PROGRAM, http://www.scottsdaleaz.gov/ Assets/documents/greenbuilding/ProgramOverview.pdf (last visited Oct. 16, 2008).
165. See, e.g., Matt Carter, Pleasanton Energy Plan Passes Unanimously, TRI-VALLEY HERALD (Pleasanton, Cal.), Dec. 5, 2002 (describing a Pleasanton, California plan to set aside fifty building permits for residences that produce as much electricity as they consume, a large number considering only 139 homes were slated to be built in the next two years under the town's growth management program).
166. See, e.g., Wall, supra note 124 (describing how this strategy will work in San Bernardino County, California).
167. See Nancy J. King & Brian J. King, Creating Incentives for Sustainable Buildings: A Comparative Law Approach Featuring the United States and the European Union, 23 VA. ENVTL. L.J. 397, 415 (2005).
168. See Galvan, supra note 117, at 1772-73 (describing a similar concern with code officials' resistance to rehabilitation building codes, another innovation in coding).
169. See id. at 1771.
170. Survey Reveals Need to Bolster Building Departments, RISK MGMT., Apr. 1996, at 14 (reporting the results of a survey of 806 code administrators which indicated that "47 percent feel they are not adequately staffed to complete all necessary inspections of construction work, and about the same number (46 percent) say they do not have the staff to handle their responsibilities for reviewing plans").
171. Peter Yost, Green Building Programs-An Overview, BUILDING STANDARDS, Mar-Apr. 2002, at 12.
172. ELLICKSON & BEEN, supra note 23, at 73.
173. Rose, supra note 5, at 839.
174. Some have called traditional land use regulation by localities the "weakest link in modern environmental law protection." Tarlock, supra note 14, at 652.
175. U.S. CONST. art. I, § 8; see Jerold S. Kayden, National Land-Use Planning in America: Something Whose Time Has Never Come, 3 WASH. U. J.L. & POL'Y 445, 451-52 (2000).
176. Kayden, supra note 136, at 451.
177. U.S. CONST. amend. X ("The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.");
178. see also Vill. of Euclid v. Ambler Realty Co., 272 U.S. 365, 396-97 (1926) (upholding zoning as a constitutional exercise of the police power).
179. U.S. CONST. art. VI, cl. 2 ("This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land....").
180. Todd A. Wildermuth, National Land Use Planning in America, Briefly, 26 J. LAND RESOURCES & ENVTL. L. 73, 75 (2005).
181. See id.
182. See id. at 75-76 (adding three other reasons for the program's demise: opposition from the American Farm Bureau Federation, the departure of a powerful advocate from the Secretariat of the U.S. Department of Agriculture, and the decision to devolve control to thousands of counties nationwide).
183. See, e.g., Jayne E. Daly, A Glimpse of the Past-A Vision for the Future: Senator Henry M. Jackson and National Land-Use Legislation, 28 URB. LAW. 7 (1996) (describing several different attempts by Senator Jackson to pass national land use legislation);
184. Tarlock, supra note 14, at 656;
185. John R. No-Ion, National Land Use Planning: Revisiting Senator Jackson's 1970 Policy Act, LAND USE L. & ZONING DIG., May 1996, at 3, 4.
186. Nolon, supra note 143.
187. See Daly, supra note 143, at 34-35.
188. Wildermuth, supra note 140, at 79 ("Many changes since the 1970s have, in fact, weakened the call for national land use planning. States, for example, have developed their own land use planning. Localities, too, have often taken up the charge to defend their home places in collaborative, democratic ways....").
189. See U.S. CENSUS BUREAU, supra note 86, at v. (showing that 38,967 general-purpose governments and 35,052 special districts exist in the United States).
190. Kayden, supra note 136, at 451-53.
191. Freyfogle, supra note 34, at 580.
192. See, e.g., Kayden, supra note 136, at 446 ("[These areas include] environmental regulation; management of nationally owned land; transportation policy and finance; housing and economic development subsidies; and [takings].");
193. Jess M. Krannich, A Modern Disaster: Agricultural Land, Urban Growth, and the Need for a Federally Organized Comprehensive Land Use Planning Model, 16 CORNELL J.L. & PUB. POL'Y 57, 58-59 (2006) (citing the shortage of productive agricultural land, and states' and localities' inability to plan for better use of such land, as the reason for implementing nationally organized planning);
194. Wildermuth, supra note 140, at 80-81 (identifying three areas where national land use planning might be acceptable, including large or migrating species habitat, pollution, and resource management).
195. See SUBCOMM. ON CONSTR. & BLDG., NAT'L SCI. & TECH. COUNCIL, CONSTRUCTION AND BUILDING: FEDERAL RESEARCH AND DEVELOPMENT IN SUPPORT OF THE U.S. CONSTRUCTION INDUSTRY 7-9 (1995), available at http://www.fire.nist.gov/bfrlpubs/build95/PDF/b95015.pdf (listing federal goals for the construction industry which included fifty percent less waste and pollution and fifty percent greater energy efficiency over eight years).
196. OFFICE OF THE FED. ENVTL. EXECUTIVE, supra note 9, at xx-xxi (listing agency programs); Office of the Fed. Envtl. Executive, Executive Orders, http://www.ofee.gov/eo/eo.asp (last visited Oct. 16, 2008) (listing executive orders);
197. see also SUBCOMM. ON CONSTR. & BLDG., supra note 151, at 18-31 (describing the role several federal agencies played in advancing technology in the construction industry).
198. In addition, some commentators are highly critical of the federal government's role in encouraging green building. See, e.g., John C. Dernbach & Scott Bernstein, Pursuing Sustainable Communities: Looking Back, Looking Forward, 35 URB. LAW. 495, 505 (2003) ("The [country] has no national strategy for sustainable development, much less a specific strategy for fostering or encouraging sustainable communities.").
199. See Laurie Reynolds, Intergovernmental Cooperation, Metropolitan Equity, and the New Regionalism, 78 WASH. L. REV. 93, 109-11 (2003) (describing the New Regionalists' approach).
200. Frug, supra note 41, at 1790.
201. See David J. Barron & Gerald E. Frug, Defensive Localism: A View of the Field From the Field, 21 J.L. & POL. 261, 286-91 (2005) (suggesting regionalism and autonomy are not incompatible).
202. See, e.g., GERALD E. FRUG, CITY MAKING: BUILDING COMMUNITIES WITHOUT BUILDING WALLS 85-88 (1999);
203. Richard Briffault, Home Rule for the Twenty-First Century, 36 URB. LAW. 253, 271-72 (2004) (suggesting that states need to create more land use regulations and instutions to govern local land use actions, and asserting that such institutions would "ideally⋯ operate at the regional and not the state level");
204. Frug, supra note 41, at 1790-91.
205. Richard Briffault, The Local Government Boundary Problem in Metropolitan Areas, 48 STAN. L. REV. 1115, 1166 (1996) (suggesting that regional governments' powers could include the powers to collect and distribute revenues, provide regionwide physical infrastructure, and determine questions of regional significance).
206. If adequately empowering regional governments fails to overcome the "ideology of localism," perhaps incentives to cooperate would assist. See Saxer, supra note 8, at 682.
207. Briffault, supra note 158, at 1166.
208. See id.
209. While some commentators have suggested that localities open voting to every eligible voter in the region as an alternative to creating separate governmental institutions, most reject this notion. See, e.g., id. at 1158-62 (opposing cross border voting).
210. See Barron & Frug, supra note 156, at 261-62 (observing the phenomenon of "defensive localism" and arguing that proponents of regionalism should offer regional forms of government empowerment and engage localities, instead of enfeebling them, as the current model does).
211. Id. at 270.
212. FISCHEL, supra note 38, at 229.
213. But see Barron & Frug, supra note 156, at 268 ("As Fischel's model makes plain, however, homevoters want to boost their housing value, not govern themselves. It is not clear, therefore, that the homevoter hypothesis entails an attachment to local control. If regionalism or state-sponsored development policies better enhanced market values, homeowners might prefer them.").
214. E-mail from Shannon Menard, Policy Manager, Nat'l Ass'n of Reg'l Councils, to Sara C. Bronin, Associate Professor of Law, Univ. of Conn. Sch. of Law (July 15, 2008, 09:15 EST) (on file with author) (indicating that, according to the National Association of Regional Councils, there are only five hundred and twenty regional councils, defined as "local government-based planning and development organizations").
215. BOSSELMAN & CALLIES, supra note 1, at 2-3.
216. Id. at 3.
217. Id.
218. Id. at 4.
219. Id. at 327.
220. Id. at 2-3.
221. Id.
222. See ADVISORY COMM. ON ZONING, U.S. DEP'T OF COMMERCE, A STANDARD STATE ZONING ENABLING ACT 4-5 (1926) (permitting the legislative body of cities and incorporated villages to regulate "height, number of stories, and size of buildings and other structures, the percentage of lot that may be occupied, the size of yards, courts, and other open spaces, the density of population, and the location and use of buildings, structures, and land for trade, industry, residence, or other purposes").
223. See DUBOSE et al., supra note 66, at 161 (describing how green-building programs in eleven states evolved);
224. Patricia e. Salkin, Squaring the Circle on Sprawl: What More Can We Do? Progress Toward Sustainable Land Use in the States, 16 WIDENER L.J. 787, 790-821 (2007) (describing various state programs relating to "smart growth");
225. Christopher D. Montez & Darren Olsen, The LEED Green Building Rating System and Related Legislation and Governmental Standards Concerning Sustainable Construction, CONSTRUCTION LAW., Summer 2005, at 38, 39-41.
226. Dale D. Goble, Comment, Solar Rights: Guaranteeing a Place in the Sun, 57 OR. L. REV. 94, 118-19 (1977) (listing state statutes);
227. see also Stephen B. Johnson, Note, State Approaches to Solar Legislation: A Survey, 1 SOLAR L. REP. 55, 58-63 (1979) (describing twenty-eight states "offering real property tax exemptions for solar energy systems");
228. id. at 73-77 (describing the sixteen states which provided income tax incentives for solar energy systems at the time of publication).
229. Yuliya Chernova, Shedding Light on Solar, WALL ST. J., June 30, 2008, at R6 ("[D]espite federal and some state government subsidies that have helped push up demand, solar power still accounts for less than one percent of power generation in the U.S. That's because even with subsidies, solar power remains expensive compared with energy based on traditional fuels like coal and natural gas.").
230. W. Wade Berryhill & William H. Parcell III, Guaranteeing Solar Access in Virginia, 13 U. RICH. L. REV. 423, 426 (1979) ("Most authorities agree that the guarantee of solar access is the single most important legal issue concerning solar energy.").
231. Barron & Frug, supra note 156, at 265-66 (explaining that localities sometimes feel constrained by "large structural forces over which they have little effective power given the limited reach of their jurisdiction").
232. BOSSELMAN & CALLIES, supra note 1, at 320.
233. Id. at 3 ("A recognition of the inadequacies of local [control] must not, however, cause the values of citizen participation and local control⋯ to be submerged completely in some anonymous state bureaucracy.").
234. John R. NOLON, Champions of Change: Reinventing Democracy Through Land Law Reform, 30 HARV. ENVTL. L. REV. 1, 26-29 (2006) (describing, for example, the State of Wisconsin mandate that each city develop a plan which incorporates specific smart growth elements, and the State of Iowa law that conservation districts design and enforce erosion-control measures).
235. Id.
236. See id.
237. CAL. GOV'T CODE § 65850.5 (West 2007).
238. Id. § 65850.5(b).
239. Id. § 65850.5(c).
240. Groc, supra note 90, at 6;
241. Todd J. Wenzel, State LEEDs way in Green Building Movement, RECORDER, Mar. 26, 2007, at 16 (describing Marin County as one example which "speeds permit processing and waives some design review" for sustainable technologies).
242. CONN. GEN. STAT. § 7-147f(a) (2007).
243. Larry Gallagher, How Does Your Garden Grow?, ONEARTH, Fall 2005, at 12 ("At the forefront are Arizona and New Mexico, where reining in water use is an obvious priority.");
244. ART LUDWIG, OASIS DESIGN, GREYWATER POLICY PACKET 31 (2005), available at http://oasisdesign.net/downloads/GWPolicyPacket.pdf.
245. U.S. GREEN BLDG. COUNCIL, LEED FOR NEW CONSTRUCTION & MAJOR RENOVATIONS: VERSION 2.2, at 27, 29-32 (2005), available at http://www.usgbc.org/ShowFile.aspx?DocumentID=1095.
246. LUDWIG, supra note 190, at 3 (calling Arizona's gray water statute a model for other jurisdictions). Other states have not been as successful as Arizona: although California in 1994 became the first state to incorporate gray water systems into its statewide plumbing code, the law is so restrictive that an underground movement of gray water proponents-as many as two thousand in the Bay Area alone-operate gray water systems illegally. Gregory Dicum, The Dirty Water Underground, N.Y. TIMES, May 31, 2007, at F4.
247. See Dean Fosdick, Recycling Water Is a Gray Area, WRAL, Nov. 27, 2007, http://www.wral.com/lifestyles/house-and-home/story/2088188/ (describing the consequences of prohibiting gray water usage in the southeastern United States).
248. ARIZ. ADMIN. CODE § R18-9-711 to -720 (2007).
249. See, e.g., Briffault, supra note 157, at 271 (arguing that "states need to take a greater role in guiding, monitoring, and, where appropriate, intervening with respect to" local land use decisions) (emphasis added).
250. See supra text accompanying note 11.
251. WORKING GROUP III, INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, CLIMATE CHANGE 2007: MITIGATION 13 (B. Mets et al. eds., 2007).