As extreme weather and natural hazards increase, policymakers must do a better job of ensuring that people live out of harm’s way, and build in a manner compatible with our changing planet. Land use laws, which in the United States are primarily the province of local governments, could help achieve more rational outcomes. Local zoning laws, in particular, have the potential to ensure that future development avoids risk-prone areas, because zoning dictates much of what gets built in this country. Yet as Professor Jonathan Rosenbloom points out in his latest article, Sacrifice Zones, few local governments have harnessed zoning’s powers to protect people and their places.
Rosenbloom contends that local governments have neglected zoning instead of changing and updating their codes as conditions change. I would probably go a little farther than Rosenbloom. When they have amended zoning rules, local governments often made the problem worse by permitting more development in areas prone to floods, wildfires, or extreme temperatures. Overall, poor land use planning, epitomized and reinforced by ill-conceived zoning rules, has accelerated disaster impacts and myriad losses of life, livelihoods, homes, neighborhoods, cultural resources, and communities.
What can be done to curb these losses? Rosenbloom points to the potential benefits of zoning laws that designate high-risk areas to be “sacrifice zones,” and then regulate those areas to eliminate or thwart new development, to facilitate relocation to safer areas, or to enable nature to regenerate.
To explain how this might be possible, Rosenbloom begins his article with a primer on several key flexibility devices already available to local officials exercising zoning authority. He first cites the ways in which an individual property owner can petition for a variance offering relief from strict compliance with the zoning code, or for a conditional use permit providing special permission to build after the satisfaction of certain conditions.
Rosenbloom explains that these property-specific flexibility devices cannot address climate issues at scale. Instead, he argues for more systemic solutions that modify zoning districts or that reclassify larger tracts of land. As one example, he points out that localities can create “overlay” zones tailored to geographic conditions or certain development goals. Overlays that require managing stormwater, planting trees, or establishing open-space areas could help address some of the policy goals Rosenbloom identifies in the article.
He also proposes that local governments set up systems to allow owners of property in sacrifice zones to transfer (i.e., sell) development rights to owners of property in safer areas. This strategy has been used in New York City to soften the blow of historic preservation regulations (and was sanctioned by the Supreme Court in the 1978 Penn Central case we all read in 1L Property Law).
Rosenbloom distills his suggested approach to sacrifice zones into a fairly simple set of rules based on whether people already live there. If an area is uninhabited, he suggests a moratorium, or at least limitations on new development. If an area is inhabited, then he suggests not only development limitations but also strategies to facilitate relocation.
He contends that even some of the more controversial proposals could avoid Takings Clause claims. And he urges localities executing such strategies work for justice for marginalized groups. On this last point, Rosenbloom explains that the term “sacrifice zones” originated in the 1970s, but more recently the term was adapted by environmental justice scholar Robert Bullard to refer to polluted areas inhabited by minority and poor people, who have been sacrificed along with the land. Rosenbloom is careful to explain he’s using the term differently in this piece.
As he suggests different approaches, Rosenbloom evaluates them too. I couldn’t help but think that in writing this article, he must have drawn from his experience building the Sustainable Development Code, a digital assemblage of the best strategies local governments are deploying to enhance their resilience and equity. (Full disclosure, I served on the advisory board of that project from 2018-2022.) The Sustainable Development Code grades the assembled strategies as “good,” “better,” and “best.”
Sacrifice Zones features what Rosenbloom considers to be the “best” strategies, but he would acknowledge that we still have a long way to go to fully understand the scope of the climate crisis and the scale of necessary solutions.
I would be remiss if I did not point out a project that is trying to fill some of those knowledge gaps: the National Zoning Atlas, which has made publicly available the regulatory characteristics of zoning on land where over 130 million Americans live. (Much of our progress happened since Sacrifice Zones was published.) The Atlas’s findings reinforce Rosenbloom’s observations that zoning in far too many places jeopardizes people and the places they call home.
Plenty of people will object to the ideas Rosenbloom presents. Few communities will raise their hands and ask to be zoned out of existence. Elected officials will balk at the prospect of telling people they must “sacrifice” anything. And planners will be wary of pushing sacrifice zones lest they suffer professional and emotional consequences from their community’s ire.
But Sacrifice Zones reminds us that change is inevitable, and that abstract discussions about policy must be grounded in, and taken more seriously after, each weather-related catastrophe. The article should be required reading for anyone working to understand some of the legal options we’ll have to choose from, sooner or later.
