Zoning Law,Health,and Environmental Justice: What's the Connection?

Haar C. and Wolf M. , Land Use Planning — The Use, Misuse, and Reuse of Urban Land (Boston: Little, Brown & Co., 1989); Platt R. , Land Use Control: Geography, Law, and Public Policy (Englewood Cliffs, New Jersey: Prentice Hall, 1991).

Babcock R. , The Zoning Game (Madison: University of Wisconsin Press, 1966): at 124.

Nordenstam B.J. , “Transformation of Grassroots Environmental Justice into Federal Agency Environmental Policy,” in Environmental Science and Engineering Fellow Program, 1995 Reports (Washington, D.C.: American Association for the Advancement of Science, 1995): 51–65, at 52.

According to a 1993 examination of over fifty studies of the distribution and siting of environmental hazards conducted between 1967–1993, about 90 percent of the studies found a racial disparity, about half found a racial and income disparity, with all of them finding a racial or income disparity. Goldman B.A. , Not Just Prosperity: Achieving Sustainability with Environmental Justice (Washington, D.C.: National Wildlife Foundation, 1993). See also Bullard R.D. , ed., Unequal Protection: Environmental Justice and Communities of Color (San Francisco: Sierra Club Books, 1994); Johnston B.R. , ed., Who Pays the Price? The Sociocultural Context of Environmental Crisis (Washington, D.C.: Island Press, 1994); Bryant B. , ed., Environmental Justice: Issues, Policies, and Solutions (Washington, D.C.: Island Press, 1995); United Church of Christ's Commission for Racial Justice, Toxic Wastes and Race in the United States: A National Report on the Racial and Socio-Economic Characteristics of Communities with Hazardous Waste Sites (New York: United Church of Christ, 1987).

Maantay J.A. , Industrial Zoning Changes and Environmental Justice in New York City: An Historical, Geographical, and Cultural Analysis, Ph.D. Dissertation (New Brunswick, New Jersey: Rutgers University, 2000).

As defined by the New York City Department of City Planning in its City wide Industry Study: Geographical Atlas of Industrial Areas (New York: New York City Department of City Planning, January 1993). The determination of “major” industrial zones was based on the department's analysis of employment data, land use, and transportation access. The boundaries for these major industrial districts were based on neighborhood boundaries, major geographic or physical features, historic and present-day functions, and census tract boundaries, where feasible.

The 1961–1998 timeframe was selected for the study because December 1961 marks the date of the last major overhaul of the New York City Zoning Resolution. Data for actions prior to 1961 would not be directly comparable to data regarding later actions due to significant changes in zoning categories, procedures, and recordkeeping. October 1998 marks the time the archival data were researched and compiled for this study, and thus represents the endpoint of the timeframe.

The determination of M zone changes was based on comparison of archival zoning change maps, Map Sections 1–35, New York City Department of City Planning, 1961–1998. Population characteristics (race, ethnicity, income, and homeownership status) were obtained from census data from 1960, 1970, 1980, and 1990. Digital data sources were used so that census data could be mapped and analyzed through Geographic Information Systems (GIS) on the computer. Adams T.K. , Census of Population and Housing, 1960, 1970, and 1980 Extract Data (Ann Arbor: Inter-University Consortium for Political and Social Research, 1992); U.S. Department of Commerce, Bureau of the Census, Census of Population and Housing, 1990 Summary Tape File on CD-ROM, Technical Documentation (Washington, D.C.: U.S. Bureau of the Census, U.S. Department of Commerce, 1990); U.S. Department of Commerce, Bureau of the Census, 1980 Summary Tape File 3a Technical Documentation (Washington, D.C.: U.S. Government Printing Office, 1980).

New York City Department of City Planning, New York City Zoning Resolution (December 15, 1961), and periodic updates until the present. All land uses in New York City fall into one of eighteen “Use Groups.” M districts are allowed to contain Use Groups 17 and 18, which are generally not allowed in any other zone. These include most manufacturing establishments, refineries, waste-related facilities, power plants, and transportation land uses.

Miller D. and de Roo G. , “Integrated Zoning: An Innovative Dutch Approach to Measuring and Managing Environmental Spillovers in Urban Regions,” Journal of the American Planning Association, 62 (1996): 373–80.

For instance, this occurs in the Hunts Point Peninsula in the Bronx and the Greenpoint-Williamsburg section of Brooklyn.

Novotny P. , “Popular Epidemiology and the Struggle for Community Health in the Environmental Justice Movement,” in Faber D. , ed., The Struggle for Ecological Democracy (New York: The Guilford Press, 1998): 137–58; Haggerty M. , “Crisis at Indian Creek,” in Bullard R. , ed., Unequal Protection: Environmental Justice and Communities of Color (San Francisco: Sierra Club Books, 1996): 23–42; Wright B. Bryant P. , and Bullard R. , “Coping with Poisons in Cancer Alley,” in Bullard R. , ed., Unequal Protection: Environmental Justice and Communities of Color (San Francisco: Sierra Club Books, 1996): 110–29.

Nossiter A. , “Asthma Common and on the Rise in Crowded South Bronx,” The New York Times, March 5, 1995, at A-1; Maantay J. A. , Urban Air Pollution, Respiratory Disease, and Environmental Justice: Making the Links in the South Bronx, Discussion Paper (New York: The Center for a Sustainable Urban Environment, Hostos Community College, 1996).

New York City Department of Health, Asthma Facts (New York: New York City Childhood Asthma Initiative, 1999).

See Maantay , supra note 5; Maantay J.A. , “Zoning, Equity, and Public Health,” American Journal of Public Health, 91 (2001): 1033–41.

The term “minority” refers to the population that is not non-Hispanic white. Many people consider the term “minority” to be a misnomer because in many U.S. urban areas, as in New York City, people classified as minorities actually constitute the majority. Based on the census definitions, and the guidelines established in Federal Statistical Directive No. 15 issued by the Office of Management and Budget in 1992, which provides standards on ethnic and racial categories for statistical reporting to be used by all federal agencies, this study used a derived variable of “minority.” This category (for 1990 census data) is a summation of Hispanic, non-Hispanic black, non-Hispanic American Indian, non-Hispanic Asian or Pacific Islander, Eskimo or Aleut, and non-Hispanic other race. Other federal agencies, such as the Environmental Protection Agency, construct a similar “minority” category as above for their research on environmental justice issues. Because this study required a longitudinal analysis, census data from 1960 through 1990 were used. One of the problems with cross-census comparisons is the lack of consistency in many census attribute data categories over the years, especially for the data on race and ethnicity. Variables, methods of data aggregation, types of information collected, and census policies on issues such as confidentiality differ from one census to the next, potentially affecting the validity of cross-census comparisons.

See Maantay , supra note 5, at 233–86.

Maantay J.A. , The Bronx Toxic Release Inventory Report (New York: Center for a Sustainable Urban Environment/U.S. Environmental Protection Agency, 1997); Maantay J.A. , “Mapping Environmental Injustices: Pitfalls and Potential of Geographic Information Systems (GIS) in Assessing Environmental Health and Equity,” Environmental Health Perspectives, 110, suppl. 2, (2002): S161–S171; Maantay J.A. , “Race and Waste: Options for Equity Planning in New York City,” Planners Network, no. 145 (January/February 2001): 1, 6–10.

Gostin L.O. , Public Health Law: Power, Duty, Restraint (Berkeley: University of California Press, 2000): at 47.

Id. at 48.

Bassett E.M. , Zoning (New York: Russell Sage Foundation, 1936): at 44.

Makielski S.J. Jr. , The Politics of Zoning: The New York Experience (New York: Columbia University Press, 1966); Weaver C.L. and Babcock R.F. , City Zoning: The Once and Future Frontier (Washington, D.C.: Planners Press, American Planning Association, 1979); Toil S. , Zoned American (New York: Grossman Publishers, 1969); Willis C. , “How the 1916 Zoning Law Shaped Manhattan's Central Business Districts,” in Bressi T. , ed., Planning and Zoning in New York City (New Brunswick, New Jersey: Rutgers University, Center for Urban Policy Research, 1993): at 11.

This is based on a review of archival documentation, such as Zoning Amendment Applications, City Planning Commission Calendars, Uniform Land Use Review Procedure (ULURP) Applications, Urban Renewal Plans, Environmental Impact Assessments, Planning Studies, and letters and other documents obtained from the New York City Department of City Planning through the Freedom of Information Law (FOIL), for the years 1961–1999. Documents from 1916–1961 were also consulted, as available, for context and background of later policy developments. A complete list of archival sources appears in Appendix C of Maantay, supra note 5.

Williams N. Jr. , American Planning Law: Land Use and the Police Power (Chicago: Callaghan, 1975): at 115–16.

Perin C. , Everything in its Place: Social Order and Land Use in America (Princeton: Princeton University Press, 1977): at 150.

See Makielski , supra note 22.

Shenkel W.M. , “The Economic Consequences of Industrial Zoning” (1964), in Andrews R.B. , ed., Urban Land Use Policy: The Central City (New York: The Free Press, 1972): at 59.

See Toll , supra note 22, at 29.

See Haar and Wolf , supra note 1.

See, for example, Haar and Wolf , supra note 1, at 372–504, “Exclusion,” where a number of such cases are discussed. See also Elias E. , “Significant Developments and Trends in Zoning Litigation: Exclusionary Zoning Perspective,” in Listokin D. , ed., Land Use Controls (New Brunswick, New Jersey: Rutgers University Center for Urban Policy Research, 1974): 157–76; National Committee Against Discrimination in Housing and the Urban Land Institute, Fair Housing and Exclusionary Land Use, Research Report No. 23 (Washington, D.C.: Urban Land Institute, 1974); Lauber D. , “Recent Cases in Exclusionary Zoning,” in Listokin D. , ed., Land Use Controls (New Brunswick, New Jersey: Rutgers University Center for Urban Policy Research, 1974): 177–78; Williams N. Jr. and Norman T. , “Exclusionary Land Use Controls: The Case of North Eastern New Jersey,” in Listokin D. , ed., Land Use Controls (New Brunswick, New Jersey: Rutgers University Center for Urban Policy Research, 1974): 105–30; Branfman E. Cohen B. , and Trubek D. , “Measuring the Invisible Wall: Land Use Controls and Residential Patterns of the Poor,” in Listokin D. , ed., Land Use Controls (New Brunswick, New Jersey: Rutgers University Center for Urban Policy Research, 1974): 57–82. See Perin , supra note 25.

See Haar and Wolf , supra note 1, at 403.

See Branfman Cohen , and Trubek , supra note 30, at 58.

Kintish B. and Shapiro J. , “The Zoning of Today in the City of Tomorrow,” in Bressi T. , ed., Planning and Zoning in New York City (New Brunswick, New Jersey: Rutgers University Center for Urban Policy Research, 1993): at 164; Lavelle M. and Coyle M. , “Unequal Protection: The Racial Divide in Environmental Law,” National Law Journal, 15, suppl. 1 (September 21, 1992): at S1–S2.

See Lavelle and Coyle , supra note 33, at S-2.

Plotkin S. , Keep Out: The Struggle for Land Use Control (Los Angeles: University of California Press, 1987): at 238.

New York City Department of City Planning, City wide Industry Study: Zoning Technical Report (New York: New York City Department of City Planning, 1993).

Board of Estimate and Apportionment of the City of New York, New York City Zoning Regulations (July 25, 1916).

See Makielski , supra note 22.

Id. at 39.

Burgess E.W. , “The Growth of a City,” in Park R.E. and Burgess E.W. , eds., The City (Chicago: Chicago University Press, 1925); New York City Planning Commission, Master Plan of Adoption of City-Wide Map Showing Sections Containing Areas for Clearance, Re-Planning, and Low-Rent Housing (New York: New York City Planning Commission, January 3, 1940).

New York City Department of City Planning, Plans, Programs, and Policies 1980–1985 (New York: New York City Department of City Planning, 1985): at 3.

Harrison Ballard , and Allen , Plan for Re-Zoning the City of New York (New York: Harrison, Ballard, and Allen: October 1950); Voorhees Walker Smith , and Smith , Zoning New York City: A Proposal for A Zoning Resolution for the City of New York (New York: Voorhees, Walker, Smith, and Smith, August 1958).

This is based on discussions with past and present Department of City Planning staff, as well as extensive interviews with Zoning Interviewees #8 and #9. See note 57 infra.

New York City Planning Commission, Master Plan for New York City: Critical Issues, vol. 1 (New York: New York City Department of City Planning, 1969).

Siegan B.H. , Land Use Without Zoning (Lexington: Lexington Books, D.C. Heath and Company, 1972): at 13.

New York City Department of City Planning, supra note 8.

See Maantay , supra note 5, at Appendix C.

New York City Department of City Planning, supra notes 6 and 36.

New York City Planning Commission/Sanborn Company, Land Use Maps of New York City, 1956, 1980, and 1990 (Pelham, New York: Sanborn Map Company, 1956, 1980, and 1990). These maps are viewable at the New York Public Library at 42nd Street, the Map Archives department.

A-1453/860696ZMX — ULURP Application form (February 25, 1986); City Planning Commission Report Calendar No. 80 (August 6, 1986); Environmental Impact Assessment prepared by Tibbets, Abbott, McCarthy, Stratton (November 1985) — large re-zoning from R6 to M1–4; A-1404/840556 ZRM and 840557 ZMM — ULURP Application form (January 23, 1984); City Planning Commission Report Calendar No. 61 (May 30, 1984) — large re-zoning from M1–5 to C6–4.

See New York City Department of City Planning, supra note 42.

New York City Planning Commission, Lofts: Balancing the Equities (New York: City Planning Commission, February 1981); New York City Department of City Planning, SoHo/NoHo Occupancy Survey 1983 (New York: New York City Department of City Planning, May 1985); New York City Department of City Planning, Gowanus: A Strategy for Industrial Retention (New York: New York City Department of City Planning, October 1985); New York City Department of City Planning, Plans, Programs, and Policies 1980–1985, (New York: New York City Department of City Planning, 1985); Report of the Design Process Panel to Mayor Edward I. Koch, Disposition of the City's Property — Enhancing Urban Design (August 1989); New York City Department of City Planning, The Hunts Point Peninsula: Planning Recommendations 1989 (New York: New York City Department of City Planning, October 1989); New York City Planning Commission, Planning New York City 1991–1992 (New York: City Planning Commission, October 1991); New York City Department of City Planning, Northern Bathgate: Neighborhood Land Disposition Plan (New York: New York City Department of City Planning, Fall 1992); New York City Planning Commission, Shaping the City's Future: New York City Planning and Zoning Report (New York: City Planning Commission, Spring 1993); New York City Department of City Planning, Community Facilities Zoning Study: A Proposed Regulatory Framework (New York: New York City Department of City Planning, Fall 1993); New York City Department of City Planning, Crotona Park North/Bronx Park South: Neighborhood Land Disposition Plan (New York: New York City Department of City Planning, Fall 1993); New York City Department of City Planning, Retail and Industrial Zoning Text Amendments — Draft Generic Environmental Impact Statement (New York: New York City Department of City Planning, May 3, 1996).

New York City Housing Partnership/New York State Division of Housing and Community Renewal, Resource Guide to the Land Use and Development Approval Process in New York (Albany. New York State Department of Housing and Community Renewal, 1993): at 180.

See Maantay , supra note 5, at Appendix C.

New York City Charter (1989).

In order to gain a wider perspective on zoning policy and decision-making, past and present, a number of zoning experts were interviewed for this study. It does not pretend to be a representative sample of New York City's planners, but it is meant to represent as wide a range of opinions and experiences as possible. Since most of those interviewed are still active in New York City planning and politics, anonymity was requested with quotations. Citations are indicated by separate numbering of each interviewee, for instance Zoning Interviewee #2. The complete list of names and professional affiliations of those interviewed appears in Appendix B of Maantay, supra note 5.

Freund E. , The Police Power: Public Policy and Constitutional Law (Chicago: Callaghan, 1904).

Caro R. , The Power Broker: Robert Moses and the Fall of New York (New York: Vintage, 1974); Jacobs J. , The Death and Life of Great American Cities (New York: Vintage, 1961); Fitch R. , The Assassination of New York (New York: Verso, 1993).

Zoning Interviewee #2, supra note 57.

Zoning Interviewee #8, supra note 57.

Zoning Interviewee #5, supra note 57.

Zoning Interviewee #6, supra note 57.

New York City Mayor's Office of Environmental Coordination, City Environmental Quality Review (CEQR) Technical Manual (New York: Mayor's Office of Environmental Coordination, 1993).

Zoning Interviewee #6, supra note 57.

New York City Department of City Planning, Locating City Facilities: A Guide to the “Fair Share” Criteria (New York: New York City Department of City Planning, 1993).

Valletta W. , “Siting Public Facilities on a Fair Share Basis in New York City,” The Urban Lawyer, 25, no. 1 (1993): 1–20; Weisberg B. , “One City's Approach to NIMBY: How New York City Developed a Fair Share Process,” Journal of the American Planning Association, 59, no. 1 (1993): 93–99.

See Maantay , supra note 5, at Appendix B.

Renn O. Webler T. , and Wiedmann P. , eds., Fairness and Competence in Citizen Participation (Dordrect: Kluwer Academic Publishers, 1995).

Glickman T.S. and Hersh R. , Evaluating Environmental Equity: The Impacts of Industrial Hazards on Selected Social Groups in Allegheny County, Pennsylvania, Discussion Paper 95–13. (Washington, D.C.: Resources for the Future, 1995): at 7.

Camacho D.E. , ed., Environmental Injustices, Political Struggles: Race, Class, and the Environment (Durham: Duke University Press, 1998): at 43.

New York City Department of Environmental Protection, The Greenpoint-Williamsburg Environmental Benefits Program (New York: New York City Department of Environmental Protection, 1995).

Showstack R. , “Fears of Asthma Fuel Protests over a Waste Incinerator,” New York Times, May 11, 1997, Section 13, at 9; Halbfinger D. , “6-Year Fight Against Hospital Incinerator Pays Off,” New York Times, June 30, 1997, at B3; Dao J. , “Bronx Lebanon Hospital to Shut Waste Incinerator,” New York Times, June 27, 1997, at B1; Halbfinger D. , “Neighborhood Report: Port Morris: Fearful of the Fumes and Dubious about the Fine Print,” New York Times, September 20, 1998, Section 14, at 9; Martin D. , “City's Last Waste Incinerator Is Torn Down,” New York Times, May 6, 1999, at B8.

These include Nos Quedamos, Puente El , West Harlem Environmental Action Coalition, and the New York City Environmental Justice Alliance, to name a few.

Hofrichter R. , ed., Toxic Struggles: The Theory and Practice of Environmental Justice (Philadelphia: New Society Publishers, 1993); U.S. Environmental Protection Agency, Environmental Equity Report (Washington, D.C.: Environmental Protection Agency, 1992).

See Faber D. , ed., The Struggle for Ecological Democracy (New York: The Guilford Press, 1998): at 17.

Dear M. , “Understanding and Overcoming the NIMBY Syndrome,” American Planning Association Journal, 58, no. 3 (1992): 288–300; Popper F.J. , “The Environmentalist and the LULU,” Environments (March 1985): 7–11, 37–40; Inhaber H. , Slaying the NIMBY Dragon (New Brunswick, New Jersey: Transaction Publishers, 1998); Valletta , supra note 67.

American Planning Association, Policy Implementation Principles on Locally Unwanted Land Uses (Washington, D.C.: American Planning Association, 1991); Lake R. , “Rethinking NIMBY,” Journal of the American Planning Association, 59, no. 1, (1993): 87–93; Lake R. , “Negotiating Local Autonomy,” Political Geography, 3, no. 5, (1994): 423–42; Lake R. and Johns R.A. , “Legitimation Conflicts: The Politics of Hazardous Waste Siting Law,” Urban Geography, 11, no. 5, (1990): 488–508; Heiman M. , “From ‘Not in my Backyard!’ to ‘Not in Anybody's Backyard!’: Grassroots Challenge to Hazardous Waste Facility Siting,” Journal of the American Planning Association, 56 (1990): 359–62; Freudenburg W.R. and Pastor S.K. , “NIMBYs and LULUs: Stalking the Syndromes,” Journal of Social Issues, 48, no. 4, (1992): 39–61.

See Lake , “Rethinking NIMBY,” supra note 78, and Heiman , supra note 78.

Low N. and Gleeson B. , Justice, Society, and Nature: An Exploration of Political Ecology (New York: Routledge, 1998).

Harper T.L. and Stein S.M. , “The Centrality of Normative Ethical Theory to Contemporary Planning Theory,” Journal of Planning Education and Research, no. 11 (1992): 105–16; Friedman J. , Planning in the Public Domain: From Knowledge to Action (Princeton: Princeton University Press, 1987).

Lake , “Negotiating Local Autonomy,” supra note 78, at 439. See also id. at 433–39.

Barber B. , “The Real Present: Institutionalizing Strong Democracy in the Modern World,” in Strong Democracy: Participatory Politics for a New Age (Berkeley: University of California Press, 1984): 261–311; Bryson J. and Crosby B. , “Planning and the Design and Use of Forums, Arenas, and Courts,” in Explorations in Planning Theory (New Brunswick, New Jersey: Center for Urban Policy Research Press, 1996): 462–82; Fraser N. , “Rethinking the Public Sphere: A Contribution to the Critique of Actually Existing Democracy,” in Robbins B. , ed., The Phantom Public Sphere (Minneapolis: University of Minnesota Press, 1993): 1–32.

See Renn Webler , and Wiedmann , supra note 69.

See Maantay , “Race and Waste: Options for Equity Planning in New York City,” supra note 18.

Maantay J.A. , The Use of “Good Neighbor Compacts” in Resolving Locational Conflicts: The Case of New York Organic Fertilizer Company in the South Bronx, New York City, Discussion Paper (New York: The Center for a Sustainable Urban Environment, Hostos Community College, 1996).

Lewis S. , Making Local Industries Clean and Sustainable Through Stakeholder Audits (Waverly, Massachusetts: The Good Neighbor Project, 1994); Lewis S. , The Good Neighbor Project for Sustainable Industries: 1994 Annual Report (Waverly, Massachusetts: Community Press, 1995).

See Maantay , “Mapping Environmental Injustices: Pitfalls and Potential of Geographic Information Systems (GIS) in Assessing Environmental Health and Equity,” supra note 18.

Bryant R.W.G. , Land: Private Property, Public Control (Montreal: Harvest House, 1968): at 347.