300R03£00
Report by a Panel of the
NATIONAL ACADEMY OF
PUBLIC ADMINISTRATION
For the U. S. Environmental Protection Agency
July 2003
ADDRESSING COMMUNITY CONCERNS:
HOW ENVIRONMENTAL JUSTICE
RELATES TO LAND USE PLANNING AND ZONING
NATIONAL ACADEMY OF
PUBLIC ADMINISTRATION
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About the Academy
The National Academy of Public Administration is an independent, nonprofit
organization chartered by Congress to improve governance at all levels: local,
regional, state, national, and international. The Academy's membership of more than
500 Fellows includes public managers, scholars, business executives and labor
leaders, current and former cabinet officers, members of Congress, governors,
mayors, state legislators, and diplomats. Since its establishment in 1967, the
Academy has assisted hundreds of federal agencies, congressional committees, state
and local governments, civic organizations, and institutions overseas through problem
solving, objective research, rigorous analysis, information sharing, developing
strategies for change, and connecting people and ideas.
Most reports and papers issued by Academy panels respond to specific requests and
needs of public agencies. Projects also address governmentwide and broader societal
topics identified by the Academy. In addition to government institutions, businesses,
foundations, and nonprofit organizations support the Academy.
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CONTENTS
FOREWORD iii
ACRONYMS iv
EXECUTIVE SUMMARY 1
CHAPTER ONE — Introduction, Methodology, and Framework 5
Background 5
Role of the Academy Panel 6
Framework 7
Local Land Use Planning and Zoning 7
Methodology 8
Organization of this Report 9
CHAPTER TWO— Lessons Learned: Findings and Recommendations 11
Leadership and Accountability 12
Permitting, Planning, and Zoning Authorities 18
Setting Priorities and Reducing Risk 21
Public Participation 22
CHAPTER THREE — History and Background:
Land Use Planning and Environmental Justice 25
Introduction 25
Original Goals of Zoning 25
Federal Influence on Local Planning and Zoning 26
The Euclid Decision 27
Zoning's Unfulfilled Promise 28
Environmental Justice and Facility Siting 30
Beginnings of the National Movement 30
Research Proves Disproportionate Sitings 31
Differential Enforcement 32
Learning from the Past and Planning for the Future 33
CHAPTER FOUR — Current State of Land Use Planning and Zoning 37
Introduction 37
State Enabling Authority for Planning and Zoning 38
Comprehensive Land Use Plans 39
Citizen Participation Can Play a Meaningful Role in Developing Plans 42
Adopting Local Zoning Laws or Ordinances 44
Eliminating Nonconforming Uses 45
Relationship Between Zoning and Environmental Review 46
Little NEPAs and Local Land Use Actions
That Could Trigger Environmental Review 46
Community Impact Statements 46
Other Opportunities to Address Environmental Justice Concerns 47
Local Level 47
State Level 48
Federal Level 51
Conclusion 54
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CHAPTER FIVE — Huntington Park, California
Findings 59
Introduction 61
Background 61
Environmental Setting 63
Geography 63
Multiple Air Toxics Exposure Study (MATES II) 63
Alameda Corridor Project 65
Los Angeles Port Expansion 66
EnvironmentalJustice Concerns 67
Health Issues 67
Environmental Justice Assessments —
Los Angeles County and Huntington Park 70
"Asthmatown" 71
"La Montana" 71
Planning, Zoning, and Governance in California 73
California Planning Laws 73
Local Governance, Planning, and Zoning in Huntington Park 75
Environmental Permitting 77
California Requirements for Environmental Justice 77
South Coast Air Quality Management District 78
Public Participation 78
Analysis and Recommendations 80
CHAPTER SIX — Austin, Texas 89
Findings 89
Introduction 91
Background 92
About Austin 92
Economic History 93
Environmental Setting 94
EnvironmentalJustice Concerns 94
EnvironmentalJustice Organizations 94
Health Concerns 95
Impacts of Zoning 96
Addressing Unwanted Land Uses 98
Unequal Protection of Communities 99
Concerns About High Technology Industry 100
Concerns About Gentrification 101
Planning, Zoning, and Governance in Texas 101
Texas Planning and Zoning Laws 101
Local Governance in Austin 104
Austin Planning and Zoning 104
Environmental Permitting 108
Local Permitting Agencies 108
State Permitting Agencies 109
Analysis and Recommendations 110
VI
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• State and local executive and legislative branches of government must demonstrate
leadership to address environmental justice concerns. They should use their full legal
authorities to enact appropriate legislation, issue policies, develop guidance, and develop
accountability measures to ensure that, at both levels of government, core government
functions are authorized and required to address environmental justice. They should also
enhance opportunities for meaningful public participation in all government decisions
that have environmental and public health impacts; and each level of government should
improve public access to information about land use planning, zoning, siting, and
permitting.
• All levels of government should conduct thorough examinations of their respective legal
and regulatory authorities—including common law authorities for protecting the general
welfare of citizens—to develop creative solutions for environmental justice problems.
• Federal, state, and local levels of government should work in concert to ensure that their
actions for responding to environmental justice issues are compatible and mutually
reinforcing. They should share information, coordinate programs, and develop
comprehensive rules that will ensure consideration and mitigation of localized
environmental and public health impacts, especially in low-income and people-of-color
communities.
• National associations of local governments should disseminate information and offer
training on best practices in land use planning and zoning that are currently used by
cities and counties to ensure fair treatment, as well as meaningful involvement, of all
people in decisions that affect public health and the environment.
• City and county governments should incorporate consideration of potential
environmental and public health impacts of land use decisions into the fabric of their
planning and zoning activities. They should actively explore how they can use current
authorities to prevent excessive levels of pollution and mitigate environmental and other
impacts like noise, odor, and traffic—especially in low-income and people-of-color
communities.
• State, county, and city officials who are responsible for planning, zoning, public health,
and environmental protections should take immediate action to determine whether their
residents in low-income and people-of-color neighborhoods are exposed to excessive
levels of environmental and health hazards. If so, they should initiate appropriate actions
to reduce risks and communicate to the public when and how these risks will be reduced
or eliminated.
In Chapter Two of this report, the Panel details the lessons learned from this study. It also
includes the full set of findings and recommendations for making local land use planning and
zoning more responsive to environmental justice concerns.
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ENDNOTE
1 U.S. Environmental Protection Agency, Office of EnvironmentalJustice, Guidance to Assessing and Addressing
Allegations of Environmental Injustice, Working Draft, 7 (January 10, 2001).
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CHAPTER ONE
INTRODUCTION, METHODOLOGY, AND FRAMEWORK
BACKGROUND
This report is the third in a series of studies on environmental justice conducted by the National
Academy for Public Administration (the Academy) for the Office of Environmental Justice
(OEJ) of the U.S. Environmental Protection Agency (EPA). It builds on the Academy's two prior
studies, Environmental Justice in EPA Permitting: Reducing Pollution in High-Risk
Communities (December 2001) and Models for Change: Efforts by Four States to Address
Environmental Justice, (June 2002). This study examines the land use planning and zoning laws,
policies, and practices of local governments to determine how they may relate to environmental
justice issues.
The first report of this Academy Panel, Environmental Justice in EPA Permitting, analyzed key
public administration issues at EPA. It focused on how EPA could address the widely
recognized fact that some low-income and people-of-color communities are exposed to
disproportionate amounts of pollution and public health hazards. The Panel's recommendations
for how EPA could more effectively address environmental justice concerns focused on a four
part analytic framework: leadership and accountability, permitting programs, setting priorities
and reducing risk, and public participation. The Panel recommendations were also designed to
help community residents and other stakeholders gain a better understanding of how they can be
more successful in bringing environmental justice problems to the attention of EPA's permitting
and other programs.
For the first study, OEJ asked the Academy Panel to focus on EPA's permitting programs, while
recognizing that most permits are prepared by state and local agencies under delegated authority.
Even so, the first report was important for determining whether and to what extent EPA has
integrated environmental justice into its core operations, and in helping EPA to become a model
for demonstrating how these concerns can be addressed effectively by other environmental
agencies.
Along with its request for the first Academy study, OEJ also commissioned a study by the
Environmental Law Institute (ELI). ELI's report, Opportunities for Advancing Environmental
Justice: An Analysis of U.S. EPA (November 2001), reviewed "the provisions contained in the
principal federal environmental laws administered by EPA, in order to identify authorities that
potentially could be used to advance a variety of environmental justice goals in the agency's
programs."1 ELI's examination of existing federal statutes provided a useful foundation for the
Panel's work on environmental justice. ELI found that "all of EPA's sources of authority—
environmental statutes, mission-expanding and cross-cutting laws, and general discretion—give
the agency substantial and wide-ranging powers to pursue environmental justice."2 ELI also
found that state environmental agencies might have considerable latitude to respond to these
issues as part of their delegated federal programs. These findings suggest that state and local
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agencies may have environmental or administrative authorities comparable to those at the federal
level that they could use to address environmental justice issues.
In the Academy's second report requested by OEJ, Models for Change: Efforts by Four States to
Address Environmental Justice, the Panel documented the ways that Indiana, Florida, New
Jersey, and California are addressing environmental justice and how these efforts relate to their
permitting programs. By focusing on state programs, the Academy study expanded the prior
analysis of environmental justice and recognized the key role that states play in protecting public
health and the environment. The four states selected for study represent different demographics,
and have programs offering different approaches in how states can initiate responses to
environmental justice problems. The Panel analyzed the states' programs using the same four-
part framework used in the first study: leadership and accountability, permitting programs,
setting priorities and reducing risk, and public participation. The second report stressed setting
goals, achieving tangible and clear results, and fully integrating environmental justice principles
into core state planning and permitting programs. Environmental justice problems raise basic
concerns about health, informed and meaningful public participation, the community's right-to-
know, and fairness. The Panel found that performance-based administration of public programs
is best suited to ensuring that these important issues are appropriately addressed by state
agencies.
For this third report, OEJ asked the Academy to explore environmental justice from the local
government perspective by examining its relationship to planning and zoning. As part of this
effort, the Academy was asked to conduct case studies in five localities. As in the previous two
reports, this report examines laws, policies, and practices as they relate to environmental justice
concerns.
ROLE OF THE ACADEMY PANEL
The seven-member Panel of Academy Fellows who guided the first two studies has continued to
guide the research for this third study.3 The Panel provided analysis and insights and developed
recommendations based on the extensive research conducted by Academy researchers over a 12-
month period. In addition to reviewing documents and written materials, the researchers also
conducted in-depth interviews with many government officials, community group leaders, and
business representatives.
For the purpose of this third study, as with the earlier two, the Panel relied on EPA's definition
of environmental justice:
Environmental justice is the fair treatment and meaningful involvement of all
people regardless of race, color, national origin, culture, education, or income
with respect to the development, implementation, and enforcement of
environmental laws, regulations, and policies. Fair treatment means that no group
of people, including racial, ethnic, or socioeconomic groups, should bear a
disproportionate share of the negative consequences resulting from industrial,
municipal, and commercial operations or the execution of federal, state, local, and
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tribal environmental programs and policies. Meaningful involvement means that:
(1) potentially affected community residents have an appropriate opportunity to
participate in decisions about a proposed activity that will affect their
environment and/or health; (2) the public's contribution can influence the
regulatory agency's decision; (3) the concerns of all participants involved will be
considered in the decision-making process; and (4) the decision-makers seek out
and facilitate the involvement of those potentially affected.
FRAMEWORK
As noted, all three of the Panel's reports have used the same four-part framework to analyze all
three levels of government, exploring how they play out at each level:
• Leadership and Accountability;
• Permitting and Other Authorities;
• Setting Priorities and Reducing Risks; and
• Public Participation.
Through that exploration, the Panel has been able to analyze differing roles, responsibilities, and
actions of federal, state, and local agencies in responding to the challenge of achieving
environmental justice.
LOCAL LAND USE PLANNING AND ZONING
In this report, the Academy Panel has examined ways that planning and zoning in five localities
implicitly or explicitly address, create, resolve, or exacerbate environmental justice problems.
The communities are: Huntington Park, California; Chester, Pennsylvania; Austin, Texas;
Altgeld Gardens in Chicago, Illinois; and St. James Parish, Louisiana.
Through the five case studies, the Panel has identified issues and possible solutions for
addressing environmental justice problems at the local level, including ways that all levels of
government can work together more effectively. Local public administrators, state and federal
policy-makers, business leaders, and community representatives can all use this report as a tool
to understand local land use planning and zoning policies and practices, and to find practical
approaches for their own communities to implement. The report also explains to state and
federal officials how local governments need their help to address environmental justice
problems effectively and shows how state and federal programs, like environmental permitting,
can be adapted to meet the concerns of both local governments and community residents.
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METHODOLOGY
The Panel and its researchers used several methods to investigate environmental justice from the
local perspective. They examined the literature regarding the current status of land use planning
and zoning laws; how past local planning and zoning were used to foster racial segregation and
the location of undesirable facilities in low-income or people-of-color communities; and how
planning and zoning tools can now be used to reduce the disproportionate health and
environmental hazards these communities, as well as to prevent such impacts in the future.
The Panel's investigation for each of the five case studies included the following three
components:
• Laws and Policies: Academy researchers studied the texts, actual implementation,
enforcement efforts, flexibility, and adaptability of local land use plans and zoning
ordinances. They examined a range of local documents including comprehensive land use
plans, zoning ordinances and maps, proposed future land use plans and maps, emergency
response plans, and local zoning and permitting ordinances.
• Practices/Processes: Academy researchers asked about coordination across agencies and
functions within local governments, the extent to which local resources have been explicitly
dedicated to addressing environmental justice issues, and collaboration between local
agencies and community groups or regional and state environmental justice efforts. They also
examined ways that state programs support or enforce land use or zoning practices and the
effects of local and state regulations, and they explored any local environmental justice issues
in the context of larger economic and community development objectives.
• People: To understand the practical impacts and effects of local policies, practices, and
processes on the public, Academy researchers spoke with community leaders and explored
local agencies' outreach efforts, as well as attempts, if any, to understand local citizens'
concerns about environmental justice.
Academy researchers visited all five communities and interviewed a diverse set of stakeholders
for each case study. They asked about:
• State authorities and practices and local responses to them;
• The organization of local government and any inter- and intra-agency coordination;
• Types and complexity of local programs for addressing environmental justice problems;
• Information about community health and environmental conditions and health services,
as well as pollution monitoring and enforcement efforts;
• Public outreach and communication methods and their effectiveness:
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for exmple, requiring compatibility with adjacent land uses. Local governments can revise their
comprehensive land use plans, rezone incompatible land uses, adopt overlay ordinances, and
initiate rollback zoning. They can also implement better controls on city-owned properties that
pose environmental hazards or emit pollution.
Finding 6: In each of the five communities studied here, community-based organizations
provided the leadership that brought attention to environmental justice problems and prodded
local or state agencies to address them.
Recommendations on Leadership and Accountability
Recommendation 1: Governors and other state executive branch leaders should commit to
achieving environmental justice through fair treatment and meaningful involvement of all people
in decisions that affect public health and the environment. By executive order or other
appropriate means, they should direct their agencies to use each state's full range of legal
authorities for advancing these goals and integrate them into the core missions of state agencies
through specific action plans and accountability requirements. They should also establish clear
milestones to measure progress in addressing environmental justice issues for state agencies and
for local governments where the state has authority to do so. Information on progress should be
made easily available to the public, as well as to agency heads and local governing bodies, so
that responsible parties can be held accountable for producing results.
Recommendation 2: State legislatures should adopt laws requiring state agencies to integrate
into their core programs the procedures and practices necessary to address environmental justice
problems. Where states already have such legal authority, the laws should also require local
governments to incorporate environmental justice considerations into their operations, especially
local land use planning and zoning. Such legislation should define environmental justice and
link it to the primary missions of state and local agencies for preserving public welfare, reducing
risk, protecting human health, and reducing pollution. State legislation should also clarify the
respective roles and responsibilities of state and local agencies, and should establish appropriate
ongoing accountability mechanisms.
Recommendation 3: State and local agencies should develop environmental justice policies,
action plans, and accountability processes. They should ensure full public access to data that are
relevant and necessary for local officials and the public to understand current environmental
conditions and to determine whether progress is being made to improve conditions that raise
concerns.
Recommendation 4: City and county leaders should actively work to incorporate consideration
of environmental justice issues into the fabric of their land use planning and zoning authorities.
Additionally, they should actively utilize existing regulatory and common law authorities to
prevent or reduce pollution; mitigate environmental impacts on nearby neighborhoods; and
address related issues like noise, odor, and traffic. Local agencies should also work closely with
the public, environmental justice groups, and neighborhood organizations to ensure that they
fully understand the environmental issues in their communities and have a voice in local
officials' decisions on addressing these problems.
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Recommendation 5: State and federal agencies should provide leadership, technical assistance,
training, and information to help local officials develop and implement policies and procedures
for ensuring that all people are fairly treated by, and can participate in, environmental decisions.
They should further provide local officials with access to reliable information and sound science,
and help to build then* capacity for incorporating this information into appropriate local plans,
ordinances, and regulations.
Recommendation 6: National associations of local governments should disseminate
information on environmental justice, including model authorities and examples of best
practices, that cities and counties can use to ensure fair treatment and meaningful involvement of
all people in decisions that affect community health and environmental conditions. A national
on-line database could be set up for local governments to adopt smart growth and sustainable
development initiatives, highlighting the relationship between local land use controls and
environmental justice concerns. This database could include best practices and examples of local
government policies and procedures for addressing environmental justice problems, model
language to incorporate into local plans and zoning ordinances, and sample checklists for local
officials to use in ensuring compliance with environmental justice principles. Other topics might
include coordination with EPA and state environmental agencies, effective community outreach,
and mechanisms for achieving sustainable and equitable economic development.
Discussion of Leadership and Accountability
Examples of State Executive Leadership
Pennsylvania. In June 2000, the Governor of Pennsylvania signed Executive Order 1999-1 that
identifies sound land use policies and objectives to guide state agencies when making decisions
that can affect land use. The "Growing Smarter" initiative, developed through a series of
forums on land use reform held across the state and backed by a $3.6 million budget from the
Governor's office, is a substantial investment in local state land use planning efforts.2
Additionally, recent amendments to the Municipalities Planning Code direct the Pennsylvania
Department of Environmental Protection (PADEP) to "consider and [possibly] rely upon
comprehensive plans and zoning ordinances when reviewing applications for the funding or
permitting of infrastructure or facilities."3 Based on this authority, the PADEP has directed that
staff must consider all local ordinances—like the ordinances adopted by the Chester local
government that require no net increases in emissions for new heavy industrial facilities—as part
of the state's permitting process.4
Louisiana. In 1998, the Governor of Louisiana issued an Executive Order establishing the
Mississippi Corridor Task Force, which was charged with making recommendations about
environmental justice. The Task Force included representatives of the Governor; Secretaries of
the Departments of Environmental Quality, Economic Development, Agriculture and Forestry,
and Health and Hospitals; the Task Force on Environmental Protection and Preservation; the
Presidents of the state and two local branches of the National Association for the Advancement
of Colored People; and four residents of the Industrial Corridor. In 2000, this Task Force
recommended:
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• Establishing a state review process modeled on the National Environmental Policy Act and
related guidance issued by the Council on Environmental Quality;
• Creating a regional organization to coordinate regional issues such as sustainability of
environmental resources, quality of life, and economic self-sufficiency;
• Adopting a pre-permitting process to provide an opportunity for dialogue among industry,
the community, and government on issues of siting, expansion, and other permitting requests;
• Reviewing the concepts of zoning and land use planning, possibly setting minimum state
siting standards for new industrial development, and developing legislation to require buffer
zones between communities and proposed industrial facilities; and
• Studying the relationship between emissions of air pollutants and discharge of waste by
facilities located in or near residential areas.5
These Task Force recommendations provided a solid foundation for action that, if properly
implemented, could help Louisiana to start addressing environmental justice issues more
effectively. Unfortunately, to date, no state or local agency has taken action to implement the
recommendations.
Examples of State Legislative Leadership
California. California provides an excellent example of a fully authorized and articulated
program for state, county, and local agencies to work together on addressing environmental
justice problems—largely because the state legislature established a framework for action and
accountability. The California Assembly's six laws on environmental justice set clear
performance expectations for all state agencies, and place responsibility for coordinating
environmental justice efforts in the Governor's Office of Planning and Research. Under the state
laws, environmental justice must be incorporated into the state's general planning guidelines for
cities and counties by July 2003, so that integrating environmental justice into the fabric of local
planning will help to prevent future problems. The legislation also specifically directs the
California Environmental Protection Agency to consider environmental justice in all of its
programs, policies, and standards.
As the result of the new laws, several California agencies have established policies, programs,
and tools to assist local governments in responding to environmental justice concerns. The
South Coast Air Quality Management District's 1999 study on air toxic emissions in Southeast
Los Angeles was the catalyst for action by the City Council in Huntington Park. In addition, the
District is developing air quality guidance for its local governments to use in their current land
use planning and future development initiatives.
Louisiana. In 1993, the Louisiana legislature passed an act requiring the state's Department of
Environmental Quality to hold statewide hearings and solicit recommendations about how to
address environmental justice issues. The resulting recommendations, formally presented to the
legislature in 1994, included establishing guidelines for facility siting, strengthening
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requirements for land use planning, regulating transportation of toxic materials, building
emergency response capacity, improving procedures for public notices and hearings,
strengthening enforcement in highly industrialized areas, and reporting annually to the legislature
on progress in addressing environmental justice issues. However, despite this valuable effort to
engage the public, state leaders have never implemented these recommendations.
Example of State Environmental Agency Leadership
Illinois. In Illinois, a draft Interim Environmental Justice Policy developed by the Illinois
Environmental Protection Agency (IEPA) is currently under public review. It has a more limited
scope than the California legislation because it does not apply to all state agencies and
departments. However, under the draft policy, the IEPA would be responsible for ensuring that
its decisions do not disproportionately impact local communities and that every community
receives an equitable share of environmental protection and benefits. lEPA's draft policy also
would strengthen public involvement in the agency's decisions.
Examples of Local Government Leadership
People-of-color or low-income communities often are concerned about pollution exposures that
result from local planning or zoning decisions that allow sources of pollution to locate near
residential areas. Some state environmental agencies also acknowledge that incompatible
placement of facilities in proximity to residential areas is a problem. A few local officials are
beginning to recognize that incompatible zoning and land use planning—or the lack of
planning—often results from failing to understand the impacts of certain facilities on the citizens
whom the localities are responsible for protecting. Some of the local governments analyzed in
this study have taken action to correct these problems and to prevent future mistakes that expose
local residents to nearby pollution sources; in other localities, however, more effective
mechanisms are just starting to take hold.
• Huntington Park, California revised its zoning ordinance for commercial/office/mixed - use
zones to authorize imposing conditions in building/operating permits based on proximity to
residential areas and the potential for adverse environmental impacts. The city focused
particular attention on reducing diesel emissions after determining that they pose the most
significant health risk for its residents. The revised ordinance now enables the city to include
conditions in permits requiring advance mitigation and reduction of diesel emissions that
may be generated by any expanded or new buildings, operations, or facilities.
• Chester, Pennsylvania adopted an ordinance that prohibits any new heavy industrial facility
from producing a net increase in environmental pollution. The city also adopted a series of
performance measures to mitigate environmental impacts from new facilities, including
noise, glare, and air pollution. The city's planning department also completely revised its
planning code to facilitate implementation of their new comprehensive land use and
development plan.
• Austin, Texas created the East Austin Overlay District in 1997. Any new facility in the
District with operations more intense than a commercial use must obtain a special use permit
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SETTING PRIORITIES AND REDUCING RISK
Findings on Setting Priorities and Reducing Risk
Finding 12: Local governments can play a primary role in identifying neighborhoods where
residents face multiple environmental and public health risks. However, they need help from the
other levels of government to develop and implement strategies for reducing risks, taking
advantage of each level's unique authorities and expertise.
Finding 13: Local governments often need—but have not always received—leadership,
technical expertise, resources, training, or information from state and federal agencies to help
them understand and address environmental justice issues.
Recommendations on Setting Priorities and Reducing Risk
Recommendation 11: State and local planning and zoning agencies and environmental agencies
should gather data to determine whether people-of-color or low-income communities are
exposed to excessive environmental hazards and, if so, they should initiate appropriate actions to
reduce these risks. Complete information about local risks should be communicated to the
residents of these neighborhoods. Federal, state, and local agencies should develop and
implement strategies for reducing pollution, with appropriate measures of progress,
accountability mechanisms, and deadlines for producing results.
Recommendation 12: Federal and state agencies should provide technical assistance, resources,
training, and information on sources and levels of pollution that will help local governments
identify neighborhoods that face disproportionate health and environmental hazards and develop
appropriate risk reduction strategies that make effective use of all available tools and legal
authorities.
Discussion of Setting Priorities and Reducing Risk
Among the five localities in this report, the South Coast AQMD was the only agency that had
adopted a risk reduction strategy for environmental justice. Its plan applies to all of Southeast
Los Angeles and was adopted in response to a monitoring and evaluation study for implementing
its 1997 commitment to examine air quality at local levels. The study showed that diesel
emissions are the greatest health risks for neighborhoods in the District. The District then
developed a toxics control plan for the South Coast Basin that committed "to reduce air toxics by
an additional 31 percent beyond what would be expected by 2010 under existing local, state, and
federal control programs."8
The 1997 study also enabled Huntington Park officials to determine that the city's environmental
priority should be reducing diesel emissions and that they needed to be more mindful about their
local responsibilities to reduce air pollution when making land use decisions. To that end, they
changed the city's zoning ordinances to include consideration of compatible land uses, passed an
ordinance that limits idling of motor vehicles, made better use of their existing authorities under
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the California Environment Quality Act, and required mitigation plans before approving new
businesses that might produce additional diesel emissions.
PUBLIC PARTICIPATION
Findings on Public Participation
Finding 14: Local governments often have broad authorities for involving the public in land
use planning and zoning decisions, but efforts to engage the public are not always effective in
reaching residents of low-income and people-of-color communities.
Recommendations on Public Participation
Recommendation 13: Local officials should work to improve opportunities for meaningful,
early, and effective community involvement in land use planning and zoning, siting, and permit
decisions. The public should be engaged in all steps of the process, not simply invited to
participate in public hearings after plans have been essentially completed.
Recommendation 14: Local governments should help residents of low-income and people-of-
color communities participate in planning and zoning decisions and ensure that their concerns
are integrated into planning and zoning documents. This help may include translating relevant
materials into other languages, using different places and times for public meetings to facilitate
public participation and enable citizens to keep their regular work-day commitments, taking
extra steps for outreach to communities unaccustomed to participating in government decisions,
establishing ongoing partnerships with community organizations, facilitating dialogues on a
continuing basis, and placing notices in publications or other media formats that are more likely
to reach residents of low-income or people-of-color communities.
Recommendation 15: Local governments should make formal commitments to engage all
citizens in their planning and zoning processes and should adopt measures to ensure they are
making progress in addressing community concerns about public health and the environment.
As a sign of this commitment, they should be sure to appoint individuals who represent the local
community to land use planning and zoning boards.
Discussion of Public Participation
Each of the communities in the five case studies here has experienced vigorous public
engagement on environmental justice issues. Unfortunately, much of this citizen participation
has involved protests over specific problems created by past land use decisions rather than early
engagement in developing local land use plans and zoning ordinances.
The American Planning Association encourages local planning and zoning officials to adopt
collaborative approaches that create citizen support and help agencies to adopt plans or
ordinances that meet public expectations.9 Some local officials recognize they need more
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effective ways to involve local citizens earlier and in more meaningful ways when developing
land use plans and zoning ordinances.
• The new planning process for East Austin is organized at the neighborhood level.
Neighborhood residents are working closely with city planners to determine how best to zone
and plan for each neighborhood. In neighborhoods covered by the East Austin Overlay
Zone, public notice requirements have been expanded to ensure broad public awareness of
any changes that may affect each neighborhood.
• As part of its ongoing Neighborhood Improvement Project, Huntington Park plans to
establish neighborhood commissions. Once these commissions are established, city officials
believe they will be effective mechanisms for more effective civic engagement on all issues,
including environmental justice.
• Citizens commenting on Chicago's current zoning reform initiative have recommended
expanded public participation in zoning decisions. In particular, they have asked that written
notices of proposed zoning changes be sent to anyone, including renters, who has expressed
an interest in projects in particular neighborhoods or of a certain size, not just to property or
home owners located within 250 feet of the proposed project. If adopted, this approach will
help to ensure that citizens will have an opportunity to raise environmental and public health
concerns and to advocate for appropriate mitigation measures.
• The Illinois Environmental Protection Agency (IEPA) has a long-standing, active community
relations program that works with community groups and promotes public participation
generally. About a year ago, an IEPA environmental justice coordinator was appointed to
oversee the agency's work on environmental justice issues, and a draft environmental justice
policy that will apply to the agency's permitting and other programs is currently under public
review. IEPA already employs some of the public participation techniques called for in the
draft policy. Of particular interest is lEPA's use of what the agency calls "living room"
public hearings. These small, informal sessions have been successful in engaging citizens
who might otherwise not feel comfortable participating in a regular public hearing. IEPA
also sometimes holds its hearings at a location right in an affected community. For example,
about 250 people attended a hearing held at Altgeld Gardens regarding renewal of waste
treatment facility permits.
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ENDNOTES
1 Governor Thomas J. Ridge, Executive Order 1999-1, Commonwealth of Pennsylvania, (January 7, 1999).
2 Pennsylvania Department of Community and Economic Development, Governor's Center for Local Government
Services, Pennsylvania Growing Smarter, website, (visited October 2002). See also
Office of the Governor, "Gov. Ridge Unveils Dramatic Environmental Budget—Implements 'Growing Greener'
Call for 'Growing Smarter,'" Press Release (February 8, 2000). Available at
(visited July 2003).
3 53 P.S. section 10619.2 (West Supp. 2002).
4 Pennsylvania Department of Environmental Protection, Policy Office, Policy for Consideration of Local
Comprehensive Plans and Zoning Ordinances in DPE Review of Permits for Facilities and Infrastructure, DEP
ID#012-0200-001 (June 8,2002).
5 Louisiana Department of Environmental Quality, Community/Industry Relations Group, Summary and minutes of
the Mississippi Corridor Task Force (undated).
6 National Academy of Public Administration, Models for Change: Efforts by Four States to Address
EnvironmentalJustice, 89-91 (June2002).
7 Environmental Law Institute, Opportunities for Advancing Environmental Justice: An Analysis of U.S. EPA
Statutory Authorities (November 2001).
8 National Academy of Public Administration, Models for Change, 107-108.
9 Stuart Meek, gen. ed., Growing Smart Legislative Guidebook, xlvii (American Planning Association, 2002).
24
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CHAPTER THREE
HISTORY AND BACKGROUND:
LAND USE PLANNING AND ENVIRONMENTAL JUSTICE
INTRODUCTION
Local land use planning and zoning decisions have had an important influence on environmental
justice problems. Zoning and land use planning have been described by some scholars as not
only "a root enabling cause of disproportionate burdens [and] environmental injustice,"1 but also
"the most fundamental and potentially most powerful of the legal weapons deployed in the cause
of racism."2
The disproportionate exposures that often trigger environmental justice concerns are many and
complex. They have been described as including "racism, inadequate health care, low quality
housing, high hazard workplace environments, limited access to environmental information, ...
simple lack of political power," 3 and noncompliance with environmental laws, among others.
There is also significant evidence showing that not only are people-of-color or low-income
residents likely to live close to polluting industries with the resulting unequal distribution of
environmental exposures,4 but also that local zoning has sometimes created these disparities, and
that local decision-makers were often fully aware of the likely outcomes.5
The history of land use planning and zoning in this country helps to explain how this unequal
distribution of environmental burdens has occurred, and why these historical patterns have been
the source of many environmental justice problems that confront people-of-color or low-income
communities today. The case studies that follow in Chapters Five through Nine of this report
further illustrate how some localities are using planning, zoning, and improved coordination with
other entities—including state and county environmental departments and communities - to
implement initiatives designed to address current environmental justice concerns more
effectively.
A number of scholars have written comprehensively about the relationship of planning and
zoning to environmental justice. To provide a historical context for the five case studies and the
Panel's recommendations, this chapter briefly summarizes some relevant milestones in the
history of planning and zoning and their intersection with environmental justice issues.
ORIGINAL GOALS OF ZONING
When first developed, zoning promised something far different than the actual result of some
localities' decisions relegating certain communities to serve as "dumping grounds." Zoning was
originally designed to improve the aesthetics of towns and cities and to:
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"ensure sufficient light and air at street level so cities would not be labyrinths of
dark and dreary canyons; .. .prevent incompatible uses from locating cheek by
jowl so residential neighborhoods would be protected from factories; ...[ensure]
density controls...; guarantee congestion-free central business districts and
[enable] the.. .municipal infrastructure to keep pace with growth."6
While zoning "began as a means of improving the blighted physical environment in which
people lived and worked, [it] was transformed into a device for protecting property values and
excluding...[segments of the population described as] undesirables."7 One of the earliest
examples of the exclusionary use of "proto-zoning ordinances" was San Francisco's 1885
prohibition against laundries in residential areas in order to prevent Chinese immigrants from
• S
settling in white neighborhoods.
FEDERAL INFLUENCE ON LOCAL PLANNING AND ZONING
Federal policies played a significant role in establishing the basic legal framework and authority
for cities to zone, and have helped to shape the concept of local zoning as a tool that cities could
use to exclude or segregate the poor and people-of-color from certain areas.9 The passage of the
Standard State Zoning Enabling Act of 1922, under the sponsorship of the U.S. Department of
Commerce, served as the basic model for state zoning acts from that date forward.10 Among
other things, the 1922 Act granted states the power to regulate land use for the "health, safety,
morals, or the general welfare of the community."11 This authority included regulating and
restricting "the 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 of trade, industry,
residence or other purposes."12
Federally-insured mortgages provided by the Federal Housing Authority (FHA) and the Veterans
Administration (VA) also helped to shape exclusionary practices by subsidizing the suburbs at
the expense of America's urban areas, thus propagating race-based housing policies that
continued well into the 1960s.13 The FHA's Underwriting Manual, in use between 1934 and
1947, advised against "the infiltration of inharmonious racial and national groups," "a lower
class of inhabitants," and "the presence of incompatible racial elements" in new housing.14 FHA
also supported the use of racial covenants in real estate and prevented African-Americans from
obtaining mortgage insurance in "redlined"15 black or integrated communities.16 Although equal
opportunity policies began in the 1950s, FHA acquiesced in the discriminatory practices of
private lending institutions until 1968 by continuing to provide mortgage insurance for
segregated residential areas.17 The long-term impacts of discriminatory practices by both FHA
and VA have been significant, because together they subsidize half of all home mortgages.18
Also, the U.S. Department of Housing and Urban Development did not adopt regulations to
ensure that new, integrated housing was built in decent neighborhoods until 1972; and federal
highway projects as well as urban renewal policies have often displaced and segregated African-
Americans into limited areas.19
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In many instances, local decisions that allowed for industrial and other land uses incompatible
with low-income and people-of-color communities were made "not in violation of, but in
compliance with, local zoning ordinances."20 Thus, for many years, federal policies reinforced
local practices that limited housing for African-Americans to less desirable areas adjacent to
polluting facilities.
THE EUCLID DECISION
The inauguration of zoning at the beginning of the 1900s brought changes described as a
"revolution in American land use regulation and planning."21 Los Angeles launched this
country's first "use" zoning ordinance in 1908 "to protect its expanding residential areas from
industrial nuisance."22 In 1915, the U.S. Supreme Court approved the "exercise of a city's police
power over land use" in Haddacheck v. Sebastian™ which upheld the Los Angeles zoning
ordinance. In 1916, New York "enacted the first comprehensive zoning ordinance, separating
and protecting residential uses from incompatible commercial and industrial uses." Local
police powers for zoning were then affirmed in the landmark 1926 Supreme Court decision,
Village of Euclid v. Ambler Realty Corporation^
The implications of £wc//Whave been described as follows:
Euclid upheld the general principle of using the police power to separate
incompatible uses and to protect residential uses and residential environments
from the pressures of growth and industrialization. Relying on analogies to
nuisance doctrine, Justice Sutherland declared, "[a] nuisance may be merely a
right thing in the wrong place, like a pig in the parlor instead of the barnyard."
Thus, the concerns over health, safety, and the general welfare that are embodied
in the police power were properly extended through the device of zoning to
protect single-family residences from the encroachment of commerce and
industry.26
However, the racial dimensions of zoning and planning in some localities suggest that officials
thought pigs were still appropriate for certain parlors, depending on who owned the parlors.
While zoning serves to regulate land uses, it can also serve exclusionary purposes. This use was
reinforced by "social reformers" who viewed zoning as a tool "to [not only] exclude
incompatible uses from residential areas but also to slow the spread of slums into better
neighborhoods."27 This could justify excluding immigrants, African-Americans, and other
people-of-color or low-income groups from white residential areas.28 Zoning, in the service of
such policies, was well suited for promoting racial segregation because, at least until the 1950s,
"the protection of property values... [and segregation] were.. .mutually reinforcing objectives."
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ZONING'S UNFULFILLED PROMISE
Baltimore, Maryland established the first racial zoning ordinance in 1910. Within a few years,
other jurisdictions throughout the south and as far west as Texas adopted similar racial zoning.
While the ordinances differed in some respects, they shared the common objective of creating
"separate residential areas for blacks and whites and prohibiting] members of either race from
occupying residential property in the district set aside for the other."30 When the Mayor of
Baltimore signed that city's racial zoning ordinance in 1910, it isolated African-American
residents in slums to reduce the "incidents of civil disturbance, to prevent the spread of
communicable disease into the nearby white neighborhoods, and to protect property values
among the white majority."31
Although the U.S. Supreme Court rejected racial zoning in 1917 in Buchanan v. Warley,32 its
decision was based on interference with the rights of a white property owner. The Court found
that Louisville, Kentucky's ordinance restricting where one could live based on race violated the
rights of a white property owner to dispose of his property to a buyer of his choice, who in this
case was a black man. While the Supreme Court clearly addressed the "inviolability of property
rights" in this case, it did not address the "white supremacist underpinnings of racial zoning."33
Despite invalidating racial zoning, the Buchanan decision did not end racially exclusionary
zoning ordinances. They continued to be adopted by cities, only to be struck down by
appropriate state courts.34 Following the Buchanan decision, cities began employing
professional planners to develop "racially informed zoning"35 plans and utilizing land use
planning as a means to create completely separate African-American communities.36 This use of
planning in "the service of apartheid ... helped to create the racially bifurcated social geography
of most contemporary American cities."37
Utilizing this tactic, Baltimore officials again were the first to adopt a comprehensive zoning
ordinance in 1923, assisted by New York planning consultant Robert Whitten, who advised a
number of cities on such ordinances. The previous year, Whitten had counseled Atlanta officials
that "home neighborhoods had to be protected from any further damage to values resulting from
inappropriate uses, including the encroachment of the colored race.' As a result, "the south
and southeast of Baltimore tenement districts which housed first-generation immigrants, and the
alley districts which housed poor blacks, were placed in industrial districts so as to encourage
their displacement by factories."39 Professor Yale Rabin, of the Massachusetts Institute of
Technology, has called this phenomenon "expulsive zoning."40 Low-income or people-of-color
residents who were not displaced eventually found their homes were next to "a junk yard, an
incinerator, a factory, or truck depot..., [while] white neighborhoods were consistently protected
from intrusive traffic, noise, and pollution generated by such nonresidential uses."41
Professor Rabin has further described the failure of zoning to fulfill the expectations set forth in
Euclid as "an impermissible use of police power, in violation of the rights of those who are thus
adversely affected."42 He also found evidence that, even after the Supreme Court's 1917
rejection of racial zoning, some cities continued throughout the 1930s, and possibly much later,
to zone the neighborhoods of low-income or African-American residents for industrial or
commercial uses.43 In addition to industrial or high-density designations, many African-
28
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LEARNING FROM THE PAST AND PLANNING FOR THE FUTURE
The American Planning Association has acknowledged some current inadequacies of zoning for
preventing these problems. They found, among other concerns, that zoning has:
• Failed to deliver on its loftier promises of producing high quality working and living
environments;
• Been misused by suburban communities to exclude low-income and minority
families;
• Engendered corruption, because the basic concept of uniform treatment within and
among districts has been frequently undercut by issuance of variances, exceptions,
and special permits; and
• Not dealt adequately with regional problems, because zoning is viewed as a strictly
local power and opportunities for intelligent regional solutions to planning problems
have been missed.71
Environmental justice presents many challenges and many opportunities for local planning and
zoning officials. The concerns of people-of-color and low-income communities challenge local
governments to find ways to prevent and solve problems that create disproportionate impacts. In
a few localities, tools and techniques have emerged for reducing risk, achieving informed and
effective community participation, and providing access to information. These initiatives will
enable federal, state, and local authorities to provide better health and quality of life to their
citizens.
Although land use planning and zoning are not the only reasons for the environmental problems
that currently exist in people-of-color and low-income communities, they have, in some
instances, continued to be significant barriers to addressing environmental justice concerns.
Planning and zoning are also important tools for making positive local changes, and some states
and local governments are trying to do just that. As one expert has noted, "the distribution of
environmental benefits and burdens needs to be an explicit and well-considered element of the
79
environmental policy debate." These issues also need to be discussed and addressed explicitly
and effectively when localities undertake land use planning and zoning. In Chapter Four, this
report analyzes how localities can use planning and zoning authorities to help resolve current and
prevent future environmental justice problems.
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ENDNOTES
1 Juliana Maantay, "Zoning Law, Health, and Environmental Justice: What's the Connection?" Journal of Law,
Medicine & Ethics, 6 (December 22, 2002).
2 Yale Rabin, "Expulsive Zoning: The Inequitable Legacy of Euclid," in Zoning and the American Dream: Promises
Still to Keep, eds. Charles M. Haar and Jerold S. Kayden, 107 (American Planning Association, 1989).
3 Richard J. Lazarus, "Pursuing 'Environmental Justice: The Distributional Effects of Environmental Protection,"
Northwestern University Law Review, 4 (Spring 1992).
4 Ibid., 4.
5 Maantay, 6.
Haar and Kayden, eds., Zoning and the American Dream, ix.
7 Rabin, 105.
8 Maantay, 5.
9 Jon C. Dubin, "From Junkyards to Gentrification: Explicating a Right to Protective Zoning in Low-Income
Communities of Color," Minnesota Law Review, 4 (April 1993).
10 See U.S. Department of Commerce, A Standard State Zoning Enabling Act, Under Which Municipalities May
Adopt Zoning Regulations, 1 (1926).
11 Ibid.
12 Ibid.
13 Gerald E. Frug, "Rethinking the Local," Boston Review, 1 (April/May 1998). Available at
(visited July 2003).
14 Dubin, 3.
15 "Redlining" is the practice of refusing to serve a particular geographical location because of the race or income of
the area's residents.
16 Dubin, 4.
17 Ibid.
lglbid
19 Ibid., 4-5.
20 Yale Rabin, Testimony, EPA National Environmental Justice Advisory Committee, 1-165 to 1-168 (November 30,
1999).
21 Christopher Silver, "The Racial Origins of Zoning in American Cities," in. Urban Planning and the African
American Community: In the Shadows, eds. June Manning Thomas and Marsha Ritzdorf, 23 (Sage Publications,
1997).
22 Ibid.
23 Ibid.
24 Dubin, 3.
25 Ibid.
26Ibid., 1-2, quoting the Euclid decision.
27 Silver, 24.
2*Ibid.
29 Rabin, "Expulsive Zoning," 106.
30 Ibid.
31 Silver, 27.
32 Buchanan v. Warley, 245 U.S. 60 (1917). Available at
http://www.usembassy.de/usa/etexts/crights/scdec/buchanan.htm (visited July 2003).
33 Dubin, 3.
34
Ibid
35 Silver, 26.
36 Ibid.
37 Ibid.
38 Rabin, 107-108.
39 Ibid.
40Ibid, 101.
41 Rabin, Testimony, 1-165 to 1-168.
42 Rabin, "Expulsive Zoning," 101.
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• Ongoing problems of housing affordability,
• Lack of housing diversity,
• Exposure of life and property to natural hazards, and
• The obligation to promote social equity—"the expansion of opportunities for
betterment, creating more choices for those who have few"—in the face of economic
and spatial separation.
Various planning and zoning enabling statutes have had an impact on the ability of local
governments to consider and address environmental justice concerns by controlling land use.
At the start of the 21st century, there is a renewed interest in modernizing and reforming many
states' outmoded planning and zoning laws. This interest presents a unique opportunity for
environmental justice advocates to provide leadership by securing the passage of revised state
enabling statutes that will empower local governments to address these issues more effectively
through land use planning and zoning.
COMPREHENSIVE LAND USE PLANS
Although zoning is one of several legal techniques for controlling the use of land within a
municipality, it is usually based on a comprehensive plan. Such a plan is generally defined as
"an official public document, preferably (but often not) adopted as law by the local government,
[that serves] as a policy guide to decisions about the physical development of the community."
The process of developing a locality's comprehensive land use plan "provides a chance to look
broadly at programs a local government may initiate regarding housing, economic development,
provision of public infrastructure and services, environmental protection, and natural and
manmade hazards and how they relate to one another."
The language of the early federal model—the Standard State Zoning Enabling Act—allowed,
rather than mandated, planning. Due to its influence, some states required that local zoning be
implemented in accordance with a local comprehensive plan. However, many of these state laws
failed to provide specific statutory guidance to local governments about what a comprehensive
land use plan is or should be. States often failed also to provide a statutorily prescribed process
for adopting a local comprehensive plan.21 In fact, the majority of states maintain that adoption
of a comprehensive plan is not necessarily a prerequisite for adopting and enforcing local
zoning.22
Although the 1928 Standard City Planning Enabling Act did set forth certain "elements" of
comprehensive plans, this Act made plans optional and did not define the legal relationship
between plans and zoning ordinances.23 Yet, this first step in local control over land use is
critical for achieving environmental justice. Ideally, during the initial community visioning or
planning stages, citizens can come together to decide how and where they want their community
to grow. Then through the goals and vision articulated in the planning process, localities can
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adopt other legal requirements and zoning ordinances to implement the plan in ways that will
promote environmental justice.
Beginning in the 1950s, under the auspices of the U.S. Department of Housing and Urban
Development's Section 701 Program, state, regional, and local governments were influenced to
craft local land use plans that met minimum considerations.24 To qualify for federal funds for
urban renewal and other community development initiatives over a span of almost three decades,
local governments have been required to prepare and adopt comprehensive plans that contain the
following elements: land use, housing, circulation, public utilities, and community facilities.25
State governments typically leave the detailed contents of comprehensive plans to individual
local governments. But suggestions or guidelines about the elements of a plan may be adopted
by state statute. This approach, together with a requirement that localities adopt zoning districts
that comply with their comprehensive plans, is finding its way into more recent state statutory
reforms.26
The APA's Growing Smart Legislative Guidebook offers model state legislation for adopting
^1
comprehensive plans, and provides for both required and optional elements of a local plan.
Some of these elements can be important for ensuring that local officials at least consider
environmental justice principles when crafting the content of comprehensive land use plans.
Figure 4-1 is adapted from the Growing Smart Guidebook's table of proposed comprehensive
plan elements.
Figure 4-1
Mandatory Elements
Issues and Opportunities
Land Use
Transportation
Community Facilities
Housing
Program Implementation
Mandatory with
Opt-Out Alternative Elements
Economic Development
Critical and Sensitive Areas
Natural Hazards
Optional Elements
Agriculture, Forest, and Scenic Preservation
Human Services
Community Design
Historic Preservation
Subplans (as needed)
Source: American Planning Association, Growing Smart Legislative Guidebook (2002).
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New York recently enacted another approach by offering topical guidance to local officials in the
development of comprehensive land use plans. Specifically, New York's three enabling acts
provide that comprehensive plans may include the following topics, at the level of detail
appropriate for the requirements of each locality:
a) General statements of goals, objectives, principles, policies, and standards to form the
basis of proposals for the immediate and long-range enhancement, growth, and
development of the town;
b) Consideration of regional needs and the official plans of other local government units
and agencies within the region;
c) The existing and proposed location and intensity of land uses;
d) Consideration of agricultural uses, historic and cultural resources, coastal and natural
resources, and sensitive environmental areas;
e) Consideration of population, demographic, and socio-economic trends, as well as
future projections;
f) The locations and types of transportation facilities;
g) Existing and proposed general locations of public and private utilities and
infrastructure;
h) Existing housing resources and future housing needs, including affordable housing;
i) The present and future general locations of educational and cultural facilities, historic
sites, health facilities, and facilities for emergency services;
j) Existing and proposed recreation facilities and parkland;
k) The present and potential future general locations of commercial and industrial
facilities;
1) Specific policies and strategies for improving the local economy in coordination with
other plan topics;
m) Proposed measures, programs, devices, and instruments to implement the goals and
objectives of the various topics within the comprehensive plan;
n) All or part of the plan of another public agency; and
o) Any and all other items that are consistent with the orderly growth and development
of the town.28
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In keeping with the APA's guidance, one specific goal of planning for smart growth should be to
incorporate environmental justice concerns into any list of factors and/or topics that should be or
may be addressed in local comprehensive plans. This goal can easily be accomplished through
training, education, and technical assistance for local planners and other officials. For example,
in California, recent legislation requires the Governor's Office of Planning and Research to adopt
guidelines by July 1, 2003, for local agencies to follow when addressing environmental justice
issues in their general plans.29 At the time of this writing, draft guidelines have been distributed
for public comment.30 But some local governments, including the City of Los Angeles, have not
waited for the state to act. The General Plan for Los Angeles already establishes "physically
balanced distribution of land uses"31 as a goal of its land use policies, thus providing a
foundation for the city to ensure that its future zoning ordinances take into account
environmental justice issues.
CITIZEN PARICIPATION CAN PLAY A MEANINGFUL ROLE
IN DEVELOPING COMPREHENSIVE PLANS
One barrier to ensuring consideration of environmental justice concerns in local decisions can be
removed by making certain that local officials provide traditionally under-represented
populations with a meaningful role in the future development of their neighborhoods and
communities through active citizen participation in the development of comprehensive land use
plans. For most localities, municipal officials are already empowered to ensure that effective
citizen participation can occur, because state enabling statutes usually give local officials broad
authority to develop their plans. However, the laws give them little or no guidance, other than
often minimal references to the process by which such plan are developed and adopted.
Traditionally, however, citizen participation in the development of comprehensive plans and in
the process for adopting zoning ordinances has been limited to participation in the single public
hearing that is typically required by state law prior to the local legislative body's official
adoption of the plan or zoning ordinances.32 The APA's Growing Smart Legislative Guidebook
urges local officials to do more:
The processes for engaging the public in planning are not made clear in many
planning statutes. Requirements for public notice, public hearings, workshops,
and distribution and publication of plans and development regulations are often
improvised. Consequently, the public may find its role and the use of its input
uncertain, and it may be suspicious of plans and decisions that emerge. Planning
should be doing the opposite; it should be engaging citizens positively at all steps
in the planning process, acknowledging and responding to their comments and
concerns. Through collaborative approaches, planning should build support for
outcomes that ensure that what the public wants indeed will happen.33
While APA's observations are certainly true, environmental justice issues require an even more
careful and proactive approach to ensuring effective participation by all citizen interest groups.
Otherwise, "ensuring what the public wants" may not offer a level playing field for local low-
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income and people-of-color communities, who are often disillusioned—and sometimes actually
disenfranchised—by most local decision-making processes.
States have taken varied approaches when adopting statutes to encourage or require effective
citizen participation in local land use planning. Maine and Arizona offer two examples of these
laws. Maine's statute provides:34
In order to ensure citizen participation in the development of a local growth
management program, municipalities may adopt local growth management
programs only after soliciting and considering a broad range of public review and
comment. The intent of this subsection is to provide for the broad dissemination
of proposals and alternatives, opportunity for written comments, open discussions,
information dissemination and consideration of and response to public comments.
(30-A Me. Rev. Stat, sec. 4324(3)(1995)).
When preparing a general land use plan, local planning agencies in Arizona are required to:
(S)eek maximum feasible public participation from all geographic, ethnic, and
economic areas of the municipality and consult and advise with public officials
and agencies, public utility companies, civic, educational, professional and other
organizations, and citizens generally to the end that maximum coordination of
plans may be secured and properly located sites for all public purposes may be
indicated on the general plan. (Az. Rev. Stat. sec.9-461.05(e) (1996)).
Moreover, the APA's Growing Smart study proposed the following model state statute on public
participation and public hearings for comprehensive plans.
The public participation procedures shall provide for the broad dissemination of
proposals and alternatives for the local comprehensive plan or such part or other
amendments in order to ensure a multidirectional flow of information among
participants in advance of and during the preparation of plans. Examples of
measures contained in such procedures may include, but shall not be limited to:
a) Surveys and interviews of the local government's residents and business
owners, operators, and employees;
b) Communications programs and information services, such as public
workshops and training, focus groups, newsletters a speaker's bureau, radio
and television broadcasts, and use of computer-accessible information
networks;
c) Opportunity for written comments on drafts of the plan or such part or other
amendment;
d) Appointment of a person to serve as a citizen participation coordinator for the
planning process; and/or
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35
e) The creation of advisory task forces.
Ideally, a requirement to ensure meaningful citizen participation by all cross-sections of the local
population should be included in all state planning and zoning enabling statutes. Providing for
active involvement by people-of-color and low-income residents in developing the goals of a
locality's comprehensive plan, at least as it relates to their own neighborhoods, will help to
ensure that local zoning laws or ordinances are developed and/or amended to reflect the desires
of these communities. Once their concerns are part of the comprehensive plans, contrary local
zoning ordinances will run the risk of being invalidated if they do not accomplish the goals of the
comprehensive plans for addressing the environmental justice concerns.36
ADOPTING LOCAL ZONING LAWS OR ORDINANCES
When a local government is ready to implement its plan or vision, it typically does so by
enacting a zoning law or ordinance. Zoning is a process whereby land in a locality is organized
into any number of districts. These districts are then labeled, and the text of the zoning law
describes what uses are allowable within each district. Localities can have multiple districts with
the same label, e.g., three R-l (residential one family) districts or two M-l (light manufacturing)
districts. In these cases, the zoning requirements for districts with the same label must be
uniform. However, regulations may vary from one type of district to the next, e.g., the R-l
district may differ from the R-2 (residential two-family) or R-3 (multi-family) districts.
This form of zoning—also called "Euclidean zoning" from the famous Supreme Court case
upholding the constitutionality of zoning37—is designed to separate different land uses that are
believed to be incompatible. What has emerged, however, is a pattern of land uses that has
produced neighborhoods where different groups live, often identifiable based on race or socio-
economic status. Specifically, the "haves" who can afford the proverbial American Dream of
owning a single-family detached home are able to live next door to others similarly situated.
Likewise, those who rent, because they cannot afford to own their own homes, rarely live next
door to single-family homeowners. Rather, lower income families tend to live among those of
similar economic status and are concentrated together in the same areas, because Euclidean
zoning has separated single-family residential use into one or more zoning districts that are
separate from the multi-family or apartment housing in other districts.
To overcome these unfortunate effects of traditional approaches to zoning, state zoning reforms
must include methods for environmental justice principles to be adequately addressed as part of
the process for revising and adopting local zoning laws. Disparate environmental impacts often
develop even in the absence of any intent to create those effects. One author explains the
potential promise of effective coordination among local zoning, comprehensive land use plans,
and environmental justice concerns:
First, an owner or operator of a prospective LULU [sic Locally Unwanted Land
Use] would have much more difficulty obtaining approval for siting the LULU in
a minority or low-income neighborhood, if the comprehensive plan and zoning
ordinances prohibited the LULU in that neighborhood than if they allowed the
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LULU, either by right or conditionally.. .Second, land use planning and regulation
create greater certainty about what land uses will or will not be allowed in a
neighborhood...Third, land use planning and [zoning] regulations improve the
community's capacity to achieve its goals....
Typically, the only state statutory mandates that govern local rezoning or amendments to zoning
simply require that any reforms be enacted by following the same process as adoption of the
original local zoning ordinances or laws, and that any changes in the zoning be consistent with
the current local comprehensive plan.
Amendment of zoning ordinances offers another significant opportunity to address
environmental justice concerns.39 Because planning, by definition, requires prospective thought
and future vision, rezoning consistent with updating a plan is essential for a locality to achieve its
articulated goals and to remedy any ongoing environmental justice problems that are allowed or
were caused by current zoning.40 As one author has recently explained:
Low-income and minority neighborhood groups will be more successful in
achieving valid rezoning of neighboring properties from more intensive to less
intensive uses if they follow four guiding principles: (1) seek rezoning before
controversial specific land use proposals arise; (2) carefully document the
incompatibility of existing high-intensity use designations and their impact or
potential impact on the health and safety of local residents, as well as community
character; (3) seek rezoning for all neighboring parcels with similar use
designations and similar impacts (do not leave a landowner the argument that only
his or her property has been downzoned while neighboring parcels remain zoned
for more intensive uses); and (4) do not downzone so greatly that the landowner
suffers a substantial diminution in the property's value (leave the owner some
economically viable use—for example, downzone from industrial use to a
commercial use, instead of all the way to a single-family use).
ELIMINATING NONCONFORMING USES
When localities adopt zoning codes, they often "grandfather" existing uses that were allowed
prior to the adoption or amendment of new zoning laws. These nonconforming uses typically
include facilities that are no longer consistent with the current land use goals for the future of the
community and may represent operations that pose significant environmental and health
hazards.42 There is little statutory authority for addressing nonconforming uses; most states and
local governments usually follow common law or case law on this subject. Nevertheless,
unwanted nonconforming uses can often be eliminated in one of two ways: through adopting a
local amortization law to eliminate the use,43 or through a local finding that the use constitutes a
public nuisance and obtaining a court order to cease operations. One strategy to address
environmental justice issues would be for states to require that localities "survey their
nonconforming uses and determine whether any of them pose such health and environmental
problems that they should be targeted for closure."44 Local governments can then effectively
amortize the use, thereby beginning the process of improving conditions in people-or-color
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or low-income communities and starting to create neighborhood-based solutions to
environmental justice problems.
RELATIONSHIP BETWEEN ZONING AND ENVIRONMENTAL REVIEW
The APA has noted that state environmental policy acts "bring a new dimension to land use
planning and regulation."45 Its Growing Smart Legislative Guidebook for model statutes to
reform state planning and zoning laws devoted an entire chapter to discussing the need for
integrating state environmental policy acts - called "little NEPAs" after the National
Environmental Policy Act (NEPA) - local planning, as well as advocating environmental reviews
for key elements of proposed comprehensive plans prior to their adoption.46 The Guidebook
emphasizes strategies for streamlining environmental impact reviews and combining them with
local land use planning and zoning decisions so these considerations are integrated and
duplication of the two review processes is avoided.
Little NEPAs and Local Land Use Actions That Could Trigger Environmental Review
Only 15 states, the District of Columbia, and the Commonwealth of Puerto Rico have adopted
state environmental review laws (little NEPAs) requiring advance environmental reviews of
projects that may have significant environmental impacts. 7 These "state environmental policy
acts bring a new dimension to land use planning and regulation" because these acts require an
environmental review of certain types of proposed land uses, facilities, or developments. States
have adopted these policies "in part, because planning failed to consider the environmental
effects of the role of planning in evaluating environmental impacts."49
Although less than half of the states have enacted specific statewide authorities for local
governments to conduct local environmental impact assessments, localities in other states may
find authority under state municipal home rule laws or planning and zoning enabling acts to
adopt then- own locally developed environmental impact laws.50 As one leading environmental
lawyer has said: "It is unrealistic to expect many municipalities that do not now require
environmental impact statements (EIS) to start doing so in order to address environmental justice
concerns.... [but] where EISs are already prepared, they could be required to address
demographics and other environmental justice matters in a manner similar to what is now
required under NEPA."51 However, because comprehensive planning by its nature does not
usually include site-specific development proposals, state-level legislation to expand the scope of
planning and require effective local environmental reviews, particularly hi those states that do
not yet have little NEPAs, would enable community residents to have greater influence on
proposed uses that may cause adverse environmental impacts.52
Community Impact Statements
One variation on local environmental reviews is the community impact statement (CIS).53 A CIS
provides a mechanism for local officials to formulate then- own statement of what they believe
impacts will be if a particular use is newly approved or allowed to expand.54 Local reliance on
the CIS process could be authorized by state legislatures or, in some cases, local governments
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may already possess the necessary power to adopt local laws or ordinances authorizing the CIS
process. One potential benefit of preparing a CIS is that it can be a stand-alone review, totally
separate from an environmental impact review, which may not always be conducted under the
control of the impacted community. If conducting CIS reviews becomes a routine part of local
zoning reviews, local officials could be required take the results of a community group's CIS
into consideration, to hold one or more public hearings on the document, and to use the CIS as a
vehicle for negotiating on behalf of residents of the impacted community with the applicant for a
new or expanded facility.55 A state requirement that CISs be prepared and used in local zoning
decisions could be an important tool for protecting adversely impacted community residents who
might not otherwise have access to, or influence over, local decision-makers and the results of
other environmental reviews.
OTHER OPPORTUNITIES TO ADDRESS ENVIRONMENTAL JUSTICE CONCERNS
Local Level
There are numerous other opportunities to utilize existing land use planning and zoning
techniques to address environmental justice concerns. Professor Craig Anthony Arnold has
catalogued these options in a recent article discussing, among other things, flexible zoning
techniques:56
• Conditional uses—imposing certain restrictions on uses that could create environmental
justice concerns.
• Overlay zone— imposing further requirements over an existing zoning district to ensure,
for example, additional environmental protections, and could be used, for example, to
impose a variety of specific requirements on industrial and commercial activities in
predominantly low-income and minority neighborhoods.
• Performance zoning—a technique used not to regulate the land use but rather to regulate
the impacts of land uses by, for example, providing standards to limit certain nuisance-
like activities.
• Buffer zone—usually local zoning districts that buffer or serve as a transitional area
between two or more uses that might be considered incompatible. Professor Arnold notes
that these zones could address the principal reason industrial and commercial uses were
historically located next to low-income or people-of-color communities, rather than siting
of undesirable uses near moderate or middle-income single-family housing. However, he
also notes that buffer zones could include physical screening, landscaping, significant set-
backs, open spaces, and even other lower-intensity commercial uses that might serve as
better transitions from residential neighborhoods to more industrial areas.
• Floating zones—these districts are often described in the text of a zoning ordinance but
not specifically placed on the zoning map so they can "float" until they are placed in a
specific location based on the presence of certain identified criteria and a request from a
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landowner to locate that type of district at a specific site for a particular development or
facility. Professor Arnold warns, however, that community advocates need to keep
careful watch over these floating districts because it can be difficult to predict where they
will land.
• Exactions and mitigation fees—localities can assess fees on developers to reimburse the
costs associated with their new developments and thus fund, subject to constitutional
limitations, important public infrastructure needs in low-income or people-of-color
communities.
Most of these tools are not specifically authorized by state statute, but have been recognized over
the years by the courts as valid exercises of local police power, enabling these techniques to be
used by localities with little statutory guidance.
In most states, many other decisions about planning and land use requirements that could address
environmental justice concerns are left to the discretion of local officials. They include:
membership on planning commissions, planning boards, and zoning boards; investments in
training for zoning officials, planners, and other local decision-makers; and commitments to
conduct more effective community outreach and information sharing.
State Level
Training for Members of Planning and Zoning Boards
Typically, members of local planning and zoning boards, as well as members of local legislative
bodies, such as city councils or county commissioners, are not required to receive any specific
training on planning and zoning laws. Yet, scholars have documented the fact that zoning and
other land use controls—such as large lot zoning, minimum floor area requirements, large set-
backs, low density zoning and restrictions on manufactured housing and multi-family housing—
have been used to exclude certain populations from settling in a particular area through
exclusionary zoning.57 These uses may be purposeful or unintentional. The fact remains,
however, that exclusionary zoning is illegal and a violation of civil rights, often resulting in legal
judgments or costly settlements against local governments. Some of the local decisions that
produced these court rulings could have been avoided by proper training for members of local
land use planning and zoning boards.
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Case Study
Cadillac Heights, Dallas, Texas
Residents of the Cadillac Heights neighborhood in Dallas, Texas—a predominantly low-income
African-American and Hispanic neighborhood—have sued the city alleging that its zoning laws
have intentionally discriminated against them in the following ways:
• The areas immediately adjacent to their neighborhood were zoned heavy industrial, thereby
subjecting Cadillac Heights to blighting influences and the noxious effects of various
allowable uses, such as a meat packing plant, animal rendering plants, the city's sewage
treatment plant, and a junkyard.
• The city intentionally discriminated by denying these minority and low-income residents
protection from industrial nuisances such as smelting operations; the only two smelting
plants in the city have been located in predominantly minority residential communities.
• The city used its zoning powers and other city laws to protect predominantly white
neighborhoods from the harmful effects of these uses, causing disproportionate impacts on
Cadillac Heights and other mostly minority areas.
• The city failed to enforce its zoning and land use laws, allowing an illegal landfill in
Cadillac Heights to continue operating while taking enforcement action against illegal
landfills in predominantly white neighborhoods.
• The city followed a pattern of classifying areas with high concentrations of African-
Americans as "areas in advanced decline" or "advanced decline with abandonment."
In ruling on the history of land use planning and control in Dallas, the federal court for the
Northern District of Texas noted that in 1945, the City Plan Commission recommended that a
racial ownership map and a racial residence map be prepared for certain areas of the city. In 1947,
the City Engineer referred to Cadillac Heights as "suitable for Negro Subdivision Development."
City historical records indicated that the racial make-up of neighborhoods was a contributing factor
in city decisions about how to classify land for zoning purposes. The court thus found: "The sordid
history of the city's decision-making process regarding racially-segregative zoning and related
policies, when viewed in conjunction with the discriminatory effects of zoning decisions, industrial
nuisances, and landfill practices, offers substantial circumstantial evidence of discriminatory
intent." In denying the city's request for summary judgment, the court concluded: "There is a
genuine issue of material fact whether the city has discriminated against residents of Cadillac
Heights on the basis of race...."
This case is still currently being litigated. See, Miller v. City of Dallas, 2002 U.S. Dist. LEXIS
2341 (N.D. Tx., Dallas Div. 2002).
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Access to important environmental information is also key for local regulators. To address
environmental justice issues effectively, local officials must have access to reliable information
and sound science. They also need the capacity to incorporate this information into carefully
designed land use plans, zoning ordinances, and regulations.58 In part, this need relates to
training because, in some instances, the information exists if local officials know where and how
to find and use it. But in other respects, it is a separate issue that calls for state and federal
agencies to provide local officials with access to meaningful data on public health and
environmental impacts so they can make better-informed land use and zoning decisions. One
proponent of local environmental law offers the following suggestions:
1) Follow the example of environmental impact assessment laws in California and New
York, which "require local governments with actions subject to these review laws to
obtain the necessary expertise and information and to assure that it is paid for - often
by project proponents in the case of privately initiated projects;59
2) Provide special funding to local governments when they seek and use high quality
environmental information;
3) Incentivize or require local officials to acquire good environmental information; and
4) Establish statewide clearinghouses of geographic information systems (CIS) that can
supply local governments with significant environmental information prior to
adopting local zoning laws and land use plans, thereby also enabling states to play a
more meaningful role in improving the quality of local land use decisions.
However, because local governments are likely to vary widely in their indigenous technical
capacity and access to environmental information, "the states and federal government will need
to play major roles in assuring that they have the information they need to make local
environmental law an effective—indeed central—partner in the effort." l
Appointment of Individual Community Representatives to Planning and Zoning Boards
In most localities, environmental justice considerations will be factored into local land use
planning, zoning, and siting decisions only where the impacted communities are represented on
the bodies empowered to make these critical decisions. A 1987 APA survey on the composition
of planning commissions revealed that:
• Nearly eight out of 10 members of planning boards were men;
• More than nine out of 10 members were white, although in some larger cities
the number was closer to seven out often;
• Almost eight out often were 40 years of age or older; and
• Most board members were professionals, such as businesspeople, lawyers,
engineers, educators, and real estate agents.62
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This survey confirmed the findings of planning consultant Harvey S. Moskowitz, who examined
the characteristics of New Jersey's planning boards between 1981 and 1982. He concluded that
the members of these boards differed from the general population and were drawn from more
elite groups. Specifically, Moskowitz found that board members were predominantly white
professional males whose family incomes were considerably higher than the median family
income of the general population. They were also married, owned their own homes, and had
dependent children at home.64 This arguable elitism in the composition of local boards is thus a
major barrier to addressing environmental justice concerns and promoting effective citizen
participation for all communities in local planning and zoning decisions. These data also explain
and substantiate the fact that marginalized citizens are not sufficiently empowered to impact
community decisions on environmental problems or economic development.65
To address this situation, states could advocate or require that localities appoint board members
who represent the diversity of the entire community population with regard to race, gender,
income, home owners, and renters, and age. There is also precedent for states to authorize, but
not require, that municipalities appoint individuals to planning boards to serve in a representative
capacity. For example, New York statutes authorizing the creation of planning boards provide
that, in certain situations (where there is a locally established agricultural district pursuant to
state law), municipalities may appoint one or more members of local planning boards who derive
a certain threshold of their income from agricultural pursuits in the same municipality.66
The APA's Growing Smart Legislative Guidebook also offers states an option for modernizing
their planning statutes in this regard by recommending appointment of at least one member "who
lives [or who will represent the viewpoint of those who live] in rental, affordable, or multi-
family housing."67 The Guidebook stops short, however, of identifying any other members who
should be appointed to serve in other representative capacities. Examples might include
specifically selecting a board member to represent any ethnic or cultural groups that comprise a
certain percentage of the local population, appointing board members who could represent the
interests of community residents with incomes below a certain level, or selecting a board
member to represent the interests of residents in a neighborhood or area that already suffers
serious environmental exposures from nearby facilities or land uses.
Because the studies documenting membership on planning boards are now 15 to 20 years old and
did not include examination of membership on zoning boards of appeal or other local land use
bodies, a new nationwide study is needed to determine the current extent to which low-income or
people-of-color residents are under-represented among the members of local planning and
zoning bodies. A new survey would not only yield updated data, but it could also include an
explanation of environmental justice concerns and how they relate to the planning and zoning
process, thus providing another opportunity for educating local officials about how they can
address these issues.
Federal Level
Although land use planning and zoning authority and decisions rest with state and local
governments, various federal agencies have had an increasing influence on land use reforms,
through myriad regulations, funding incentives, and other agency-level technical assistance
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programs.68 More than 10,000 units of local government across the country have authority for
planning and zoning decisions, so the challenges that confront the federal government are
enormous. After all, local officials cannot begin to address their environmental justice problems
unless they understand them.
One expert has suggested that local regulators are in great need of information regarding "best
practices" by their counterparts in other jurisdictions and that "national internships, training
sessions, fellowships, and awards programs should be established."70 Furthermore, the federal
government should, from agency to agency, reinforce the nation's commitment to environmental
justice by requiring state and local governments to adopt policies or commitments to address
environmental justice issues through local planning and zoning decisions as a pre-requisite for
obtaining federal funds under any land use, transportation, or environmental grant program.
Engaging the Nonprofit Sector
It is essential to launch outreach programs and targeted policy initiatives that will sensitize local
planning and zoning officials about environmental justice principles. These programs can be
developed by working in partnerships and collaborations with national and statewide
associations and organizations that represent or work with constituencies of local officials. The
following examples are initiatives that could be undertaken by the nonprofit sector to accomplish
sustained training and education of local planning, zoning, and land use officials regarding how
community environmental justice concerns can be addressed.
• Educational programs for state officials about the role, impacts, and
opportunities presented through local land use planning, zoning, and other
land use controls to address environmental justice concerns. The National
Governors' Association and the National Conference of State Legislatures would
make ideal partners for this initiative. Presentations at national and regional
meetings of these organizations, articles in their publications, sponsored research
or policy guidebooks, and links from these organizations' websites to federal
environmental justice resources are all possible outlets for educating state
executive and legislative leaders. The existing network71 of statewide
environmental justice coordinators can also serve as another point of entry to
access state executive branch decision-makers.
• Educational programs for local officials about the relationship between
environmental justice problems and local land use controls and decisions.
Developing partnerships with national associations of local officials to educate
their membership about these issues is important. Such organizations include the
National Association of Counties, the National League of Cities, the U.S.
Conference of Mayors, the League of Cities, the National Conference of Black
Mayors, the National Association of Towns and Townships, the International
Municipal Lawyers' Association, the International City/County Management
Association, and the American Planning Association. Collectively, these
organizations cover a wide array of individuals at the local level who make
decisions about developing and adopting comprehensive land use plans, designing
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zoning laws or ordinances and other land use controls, siting new or expanded
facilities, decisions, and selecting individuals to serve on local planning or zoning
boards and other bodies that make land use decisions. The federal government
should consider developing a training curriculum that could be offered at national
and regional meetings of these organizations, as well as an on-line tutorial that
individual officials could retrieve from the Internet.
• National environmental justice awards for zoning and planning. National and
statewide associations of local governments should consider developing a
recognition program for states and municipalities that amend or adopt state or
local statutes, plans, ordinances, or regulations designed to address environmental
justice issues. These actions could then become national models for others to
emulate, and case studies of how they accomplished effective results could be
posted on the Internet. Citizen activists and others could nominate their state or
local governments for recognition. The formal awards could range from a simple
citation and visit by an appropriate high visibility official, to small planning
grants that fund targeted local efforts to implement further the plans, laws, or
ordinances recognized as model approaches.
• On-line clearinghouse for environmental justice planning and zoning. A
nationwide on-line clearinghouse could complement local smart growth,
sustainable development, or livable community initiatives by specifically
highlighting the interplay between local land use controls and environmental
justice principles. The federal government and several states that have assumed
leadership roles in addressing environmental justice concerns at state levels have
already established their own valuable websites with a wealth of information on
environmental justice. However, current government websites contain very few
resources explaining how local governments' land use planning, zoning, and other
decisions may affect environmental justice issues. Advocacy organizations
should also be encouraged to provide examples of the connection between
environmental justice and local land use planning and zoning on their websites,
and those sites should be linked to the government sites. In addition, the
clearinghouse should publish model language that can be incorporated into local
plans and zoning ordinances, as well as a sample checklist of issues to be
addressed at the local level, to help local officials work toward achieving
environmental justice.
Passing the Community Character Act and Related Initiatives
Potential partners for more formally incorporating environmental justice considerations into land
use policies are the Congressional task forces and caucuses that have been created to address
smart growth, livable communities, and improved community development.72 Federal
legislation has been recently proposed to start addressing sprawl, community development, and
smart growth. The legislation would encourage or require federal agencies' siting decisions to
be consistent with local zoning and comprehensive plans, and would provide funding for state
and local governments to modernize their land use plans. The Community Character Act of 2000
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and 2001 is one example of proposed legislation. This Act has not yet been passed, but in 2002,
it was reported out of the Senate committee. If this bill is re-introduced in this or future
Congresses, it could provide an opportunity for environmental justice principles to be
incorporated into state and local land use plans by offering financial incentives for planning.
Many national and statewide advocacy organizations have already testified at Congressional
hearings on the bill and have participated in drafting legislation and lobbying Congress to
support these initiatives, even though environmental justice issues have not been their main
focus.
CONCLUSION
Planning experts, professors of environmental and land use law, and community advocates have
only recently started to write about the critical connections between environmental justice
problems and local land use planning and zoning decisions. While there are significant
challenges to incorporating environmental justice principles into the nation's planning and
zoning system, in large part due to the fragmented nature of local land use decisions, there are
many opportunities to do so and the potential rewards are great. Given the magnitude of local
land use planning and zoning efforts, environmental justice advocates should not ignore this
critical step in community decision-making and economic development.
Professor Arnold argues that "land use planning and regulation foster choice, self-determination,
and self-definition for local neighborhoods, not paternalism that insists that there is a single
correct environmental justice goal."75 From a timing perspective, the opportunity has never been
better for obtaining changes that address environmental justice concerns, due to the currently
active national movement for modernizing state planning and zoning statutes. Significant
investments in training and education through a network of partnerships are necessary, but they
can yield substantial returns by enabling local officials to address environmental justice
problems. There is already a growing network of public, private, and nonprofit interests all
committed to ensuring that environmental justice issues are taken into account through local
planning and zoning. Increasing collaboration, cooperation, sharing resources, and working on
joint efforts will help to remedy past environmental justice problems and prevent their repetition
in the future.
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ENDNOTES
1 Patricia E. Salkin, "Land Use," in Stumbling Towards Sustainability, ed. John Dernbach, 374 (Environmental Law
Institute 2002), citing Robert R. Kuehn, "A Taxonomy of Environmental Justice," Environmental Law Review,
10681 (September 2001); Robert Bullard, "Leveling the Playing Field Through Environmental Justice," Vermont
Law Review, 453 (1999). See also, Paul M. Hendrick, "Racism in American Land Use Decisions: The Slicing of
the American Pie," Florida Coastal Law Journal, 395 (2001); and Craig Anthony Arnold, "Land Use Regulation
and Environmental Justice," Environmental Law Review, 10395 (June 2000).
2 Michael B. Gerrard, "Environmental Justice and Local Land Use Decision-Making," in Trends in Land Use Law
from AtoZ :Adult Uses to Zoning, ed. Patricia Salkin (American Bar Association, 2001).
3 Juliana Maantay, "Zoning Law, Health, and Environmental Justice: What's The Connection?" Journal of Law,
Medicine and Ethics, 572 (December 2002).
4 Clifford Rechtschaffen and Eileen Gauna, EnvironmentalJustice: Law, Policy & Regulation, 297 (Carolina
Academic Press 2002).
5 Craig Anthony Arnold, "Planning Milagros: Environmental Justice and Land Use Regulation," Denver University
Law Review, 1 (1998).
6 Village of Euclid v Ambler Realty Co., 272 U.S. 365, 47 S. Ct. 114, 71 L.Ed. 303 (1926).
7U.S. Department of Commerce, Advisory Committee on City Planning and Zoning A Standard City Planning
Enabling Act (Government Printing Office (GPO), 1928); and U.S. Department of Commerce, Advisory Committee
on City Planning and Zoning, A Standard Zoning Enabling Act (GPO, 1926 revised edition).
8 Maantay, "Zoning Law," 572.
9 Richard F. Babcock, The Zoning Game: Municipal Practices and Policies, 145-6 (University of Wisconsin Press,
1966), citing Alfred Bettman, City and Regional Planning Papers, 55 (Harvard University Press, 1946).
10 For example, the January 2002 report of the Environmental Justice Advisory Group in New York, entitled
Recommendations for the NYS Department of Environmental Conservation 's Environmental Justice Program., ends
with a strong recommendation for New York to follow the lead of California in adopting legislation and/or executive
orders to get the local governments more involved with environmental justice. Available at
.
11 Salkin, "State Enabling Statutes That Move Beyond Traditional Zoning," in New Ground: The Advent of Local
Environmental Law, 170.
12 Glen T. Bruening, "Environmental Justice May be Coming to a Planning or Zoning Board Meeting Near You,"
New York Zoning Law and Practice Report (March/April 2002).
13 Advisory Committee of the U.S. Department of Commerce drafted the Standard City Planning Enabling Act. See,
Rodney L. Cobb, "Toward Modem Statutes: A Survey of State Laws on Local Land use Planning," Planning
Communities for the 21st Century (American Planning Association, December 1999).
14 Ibid., 9.
15 Ibid
16 Stuart Meek, gen. ed., Growing Smart Legislative Guidebook (American Planning Association 2002) xxviii.
18 Professor Craig Anthony Arnold has extensively studied the relationship between local land use planning and
zoning and environmental justice and offers details on the following five case studies of grassroots environmental
justice land use strategies: (1) rezoning to limit industrial and commercial uses in neighborhoods of East Austin,
Texas; (2) rewriting Denver, Colorado's industrial zoning code by a North Denver community group; (3) St. Paul,
Minnesota, West Side Citizens Organization's successful efforts to pass a citywide ordinance banning metal
shredders; (4) adoption of a comprehensive land use code and development code by the Confederated Tribes of the
Colville Reservation in Washington; and (5) involvement of grassroots groups from San Antonio, Texas, barrios in
the formulation of overlay zoning to protect the Edwards Aquifer. See, Craig Anthony Arnold, "Land Use
Regulation and Environmental Justice," Environmental Law Review, 10395, 10408, et. seq. (June 2000).
19 Julian Jurgensmeyer and Thomas Roberts, Land Use Planning and Control Law, 26 (West Group 1998).
20 Meek, Smart Growth, 7-6.
21 Jurgensmeyer and Roberts, Land Use Planning, 30.
22 Meek, "The Legislative Requirement that Zoning and Land Use Controls Be Consistent with an Independently
Adopted Local Comprehensive Plan: A Model Statute," Washington Unviersity Journal of Law and Policy, 305
(2000).
23 Jurgensmeyer and Roberts, Land Use Planning, 30.
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See generally, Meek, Growing Smart. Chapter 7 at 7-58 discussing the history of local comprehensive planning
and citing for a history of the HUD 701 planning program. See also, Carl Feiss, "The Foundations of Federal
Planning Assistance," Journal of 'the American Planning Association 175 (Spring 1985).
25 Ibid.
26 Meek, "The Legislative Requirement," 306. Meek reviews revised statutes in 12 states that have attempted to
overcome the ambiguous language in the Model State Zoning Enabling Act that provides that zoning be adopted "in
accordance with a comprehensive plan."
27 Meek, Growing Smart, 7-61.
28 N.Y. Town Law Section 272-a (3) (McKinneys 2002); N.Y. Village Law Section 7-722(3) (McKinneys 2002);
and N.Y. Gen. City Law Section 28-a (4) (McKinneys 2002).
29 Chapter 762 of the California Laws of 2001.
30Governor's Office of Planning and Research, California Planning Guidelines (2002). Available at
.
31 Ibid.
32 Meek, Growing Smart, 7-195.
Salkin, "Collaborative Processes for Preparing and Adopting a Local Comprehensive Plan," in The Growing
Smart Working Papers, Planning Advisory Service Report No. 480/48 1 (American Planning Association, 1 998).
35 Ibid., 151-152.
36
Arnold, "Planning Milagros."
7 See Euclid, supra, note 6.
38 Arnold, "Land Use Regulation," 10407-8.
39 Arnold, "Planning Milagros."
40 Arnold, "Land Use Regulation," 10404.
41 Arnold, "Planning Milagros," reprinted in part in Rechtschaffen and Gauna, Environmental Justice, 299.
4 Gerrard, "Environmental Justice," 148.
43 See, Margaret Collins, "Methods of Determining Amortization Periods for Non-Conforming Uses," Washington
University Journal of Law & Policy, 215 (2000).
44 Gerrad, "Environmental Justice," 148.
45 Meek, Growing Smart, 12-3.
46 Meek, Growing Smart, Chapter 12.
47 See, Daniel R. Mandelker, "Melding State Environmental Policy Acts with Land use Planning and Regulations,"
Modernizing State Planning Statutes: The Growing Smart Working Papers, Planning Advisory Service Report No.
480/481 (American Planning Association 1998). Professor Mandelker identifies the following states as having little
NEPAs: California, Connecticut, Georgia, Hawaii, Indiana, Maryland, Massachusetts, Minnesota, Montana, New
York, North Carolina, South Dakota, Virginia, Washington, and Wisconsin.
48 Meek, Growing Smart, 12-3.
49/Wrf.,12-4.
50 Kathryn C. Plunkett, "The Role of Local Environmental Impact Review," in New Ground: The Advent of Local
Environmental Law, 299.
51 Gerrard, "Environmental Justice," 147.
52 Meek, Growing Smart 12-7.
53 Sara Pirk, "Expanding Public Participation in Environmental Justice: Methods, Legislation, Litigation and
Beyond," Environmental Law and Litigation, 207, 235 (2002).
54 Ibid.
55 Ibid.
56 Arnold, "Land Use Regulation," 10415-10420.
51 Ibid.
58 James M. McElfish, Jr., "Learning from the Past and Looking Towards the Future," in New Ground: The Advent
of Local Environmental Law, 404.
59Ibid., 406.
60 Ibid., 404-406.
61 Ibid., 406.
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62 Meek, Growing Smart, Chapter 7, citing Welford Sanders and Judith Getzels, The Planning Commission: Its
Composition and Function, Planning Advisory Service Report No. 400 (American Planning Association 1987), 4-6
(based upon 4,380 nationwide questionnaires).
63 Ibid., Chapter 7, citing Harvey S. Moskowitz, Planning Boards in New Jersey: Current Realities and Historical
Perspectives, ii (unpublished. Ph.D. dissertation, Rutgers University, 1983).
64 Ibid.
65 See, for example, Ora Fred Harris, Jr., "Environmental Justice: The Path to A Remedy That Hits the Mark,"
Little Rock Law Review, 797 (University of Arkansas, Summer 1999).
66 N.Y. Town Law Section 271(11) (McKinneys 2002); andN.Y. Village Law Section 7-718(11) (McKinneys
1996).
67 Meek, Growing Smart, 7-32. The Guidebook notes that the bracketed language is "targeted to those small
communities where the number of persons who live in rental, affordable, or multifamily housing is limited and
where residents may not be willing to volunteer."
68 Salkin, "Smart Growth and Sustainable Development: Threads of a National Land Use Policy," Valparaiso Law
Review, 381 (Spring 2002).
69 Gerrard, "Environmental Justice," 147.
70Michael Allen Wolf, "Earning Deference: Reflections on the Merger of Environmental and Land Use Law," in
New Ground: The Advent of Local Environmental Law, 360.
71 Salkin, "Congress Misses Twice With the Community Character Act: Will Three Times Be A Charm?" Real
Estate Law Journal, 167 (2002).
72 Salkin, "Smart Growth," 403, discussing the Senate Smart Growth Task Force, the House Sustainable
Development Caucus and the House Livability Communities Task Force.
73 Ibid. See also, Salkin, "State Enabling Statutes."
74 Salkin, "Congress Misses Twice," 167.
75 Arnold, "Land Use Regulation," 10427.
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CHAPTER FIVE
HUNTINGTON PARK, CALIFORNIA
FINDINGS
Finding 1: Past zoning decisions set the foundation for current environmental justice
concerns in Huntington Park, California, because they did not prohibit residences from being
built in manufacturing zones, and the city did not correct this problem until the 1960s. By that
time, residences and manufacturing facilities coexisted in the areas zoned for manufacturing.
Over time, the demographics of the area changed from predominately white to predominantly
Hispanic; the public, state agencies, and local governments became increasingly aware of the
health consequences of pollution; and by the mid-1990s, citizens in Huntington Park became
organized to seek remedies for the adverse impacts of excess pollution.
Finding 2: Huntington Park has used its general zoning authority to respond to environmental
justice concerns. The city revised the zoning ordinance for its commercial/office/mixed use
zones to enhance the city's ability to condition environmental permits based on the proximity of
a facility to residences and the level of adverse impact it presents. As part of this effort, the city
has taken action to reduce risks from diesel emissions because they present the greatest health
risk to residents in the area. Additionally, the city developed an air quality task force to develop
strategies to reduce air toxics. The task force developed recommendations for federal, state,
county, and city agencies that emphasize the need for cross-jurisdictional problem-solving to
address the area's air quality issues, including establishing a stronger working relationship
between the city and the South Coast Air Quality Management District (AQMD) to make better
use of its technical expertise.
Finding 3: South Coast AQMD has responsibility for issuing air permits in Huntington Park.
Although the District has not changed its basic permitting procedures, it has a demonstrated
commitment to environmental justice, as evidenced by implementing a robust set of measures to
reduce risk; improve community access to information and public participation, and develop
tools to address concerns raised by people-of-color and low-income communities, as well as
other communities that may have high levels of exposure to pollution.
Finding 4: Effective problem-solving to address air quality concerns in Huntington Park
required integrated strategies that include cross-jurisdictional coordination and assistance from
government at all levels: federal, state, county, and city.
Finding 5: Community activism by Huntington Park residents was the initial catalyst that
focused the attention of local officials on the need to address environmental justice concerns.
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INTRODUCTION
In the mid-1990s, environmental justice concerns came to the attention of local officials in
Huntington Park in much the same way it has happened in other communities—through the
repeated and persistent complaints of citizens concerned about potential health effects and the
erosion of their quality of life as a result of the impacts of adjacent industrial operations.
Although the initial reaction of city officials was that of discomfort when confronted with the air
pollution incident that prompted citizen activism, they quickly came to understand that the
concerns about impacts to their health and environment were legitimate, that they went beyond
the immediate incident, and that the city had to act.
As the city decided how it would tackle the problem of the effects of its siting decisions on its
citizens, 95 percent of whom are Hispanic, it found it had a tremendous resource and partner in
the regional air district. In 1999, the South Coast Air Quality Management District (AQMD)
provided Huntington Park with an air quality assessment that further convinced the local City
Council of the seriousness of the problems and the need to take action. The District also
provided valuable technical support to the city and the community because the District had a
clear environmental justice policy. The District recognized the concerns about localized impacts
and understood that providing improved community access to information as integral to its job of
protecting public health and the environment. Moreover, the District already had an agenda that
included activities to reduce risk, improve means of interacting with the public, and provide
better public access to important environmental information. The District's agenda also included
developing tools to improve air quality, such as guidance for local governments on air quality
that they could incorporate into their general plans to begin addressing siting concerns.
Citizens, the city, and South Coast AQMD officials all now recognize that coordinated strategies
are needed to resolve the air quality issues in the area, while also enhancing economic
development. This chapter examines how these roles emerged in Huntington Park and what
resulted from the city's and the air district's efforts. The Academy's previous study, Models for
Change: Efforts by Four States to Address Environmental Justice, also features California
programs, including the South Coast AQMD; and Appendix C of the current report contains the
California Environmental Protection Agency's (CAL/EPA) environmental justice policy.
BACKGROUND
Los Angeles County is marked by extremes in political power
and wealth that are perhaps most apparent in Southeast Los
Angeles (SELA).1 The county is the largest industrial center in
the nation with over 880,000 manufacturing jobs;
approximately 61,000 jobs are located in SELA, employing
almost 40 percent of the residents.2 In addition to a significant
industrial base, SELA is a densely populated area with a large
Spanish-speaking immigrant population.3 SELA makes up
approximately one percent of the county's area, but contains
six percent of the manufacturing facilities—including many
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high polluting industries, such as over 11 percent of the county's chemical producers and almost
19 percent of the primary metal industries.4 The concentration of these industries in SELA is 18
and 32 times more, respectively, than in the rest of the county.5
Incorporated as a city in 1906,6 Huntington Park is located in the SELA area, six and a half miles
southeast of downtown Los Angeles.7 SELA also includes seven other cities: Bell, Bell Gardens,
Commerce, Cudahy, Maywood, South Gate, and Vernon.8
Huntington Park is three square miles in size and has a population of slightly more than 60,000,
95.6 percent of whom are Hispanic.9 Huntington Park has a median household income of
$28,941, an unemployment rate of 6.5 percent, and a poverty level of 25.2 percent.10 The area
is densely populated and largely residential, although it also contains a strong industrial base11
that includes fabricated metal, aircraft parts, and oil field equipment manufacturers.12 More
recently, some national retail chain _
outlets have expressed an interest in
locating in the city.13 The city is
also currently marketing a $259
million plan for redeveloping 90
acres of brownfields and
underutilized property into a retail
center to be called El Centre that
will be occupied by major national
tenants.
14
Figure 5-1
Huntington Park, California—Demographics
Size:
3.00 square
miles
61,348
Total Population:
Race and Ethnicity*:
African-American: 0.8 percent
White: 41.4 percent
Hispanic: 95.6 percent
"Some other race": 51.1 percent
Unemployment Rate: 6.5 percent
Median Household Income: $28,941
Individuals Below the Poverty Level: 25.2 percent
High School Graduate or Higher: 32.2 percent
Totals do not add up to 100 percent because some individuals specified more
than one race.
Source: U.S. Census Bureau, Census 2000
During the early 1930s and 1940s,
SELA was a predominantly white,
suburban area that provided stable,
unionized factory jobs for tens of
thousands of workers.15 White flight
from the region began in 1965,
encouraged by the riots in Watts and
the closure of 10 major factories, including steel, tire, and automobile manufacturers that either
relocated or closed due to global competition. In total, 204,000 whites left the region between
1965 and 1990; and 50,000 well-paying factory and trucking jobs disappeared.16
By the 1990's, the region had recovered from these initial losses, regaining approximately 80 to
85 percent of it previous high employment from the 1970s. This growth was accomplished by
attracting smaller industrial sources, including waste handlers that were attracted by the lower
costs of leases, city tax incentives, and the growing low-wage immigrant work force, among
other reasons.17
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ENVIRONMENTAL SETTING
Geography
Reducing air pollution in the Los Angeles basin is a challenging process because the area is
ringed by mountains and has weather conditions that concentrate air pollution in the basin, even
without the millions of vehicles that clog area highways.18 Local lore is that "early inhabitants
referred to the San Gabriel Valley as the 'Valley of Smokes.'" That description remains apt,
even though many emission control efforts have resulted in substantial air quality improvements
over the past 30 years.19
Multiple Air Toxics Exposure Study (MATES II)
Los Angeles County is not only a nonattainment area for ozone, carbon monoxide, and
particulate matter, but it also has some of the worst air quality in the nation in terms of number of
days it exceeds federal standards.20 The area of the county where Huntington Park is located has
air quality that is even worse than the county overall. These localized air problems were
documented in November 1999, when South Coast AQMD released the results of the Multiple
Air Toxics Exposure Study II (MATES II), which monitored more than 30 toxic air pollutants
and assessed their potential risk at various locations in the SELA area.21 The study concluded
that diesel emissions were the greatest health risk for the greater Los Angeles area, which
includes Huntington Park, and that there were also significant risks attributable to benzene and
1.3 butadiene, both of which are found in gasoline.22 Although "monitoring did not identify air
emissions that exceeded health standards at most of the 14 locations evaluated, [it did document]
TT
that local hot spots may exist."
In response to the MATES II study, the city council convened the Huntington Park Air Quality
Improvement Task Force to develop a comprehensive plan to reduce air toxics.24 The Task Force
noted;
The average cancer risk from toxic air pollutants, when continuously exposed
over a 70-year lifespan, in the entire South Coast Air Basin is approximately one
(1) in 715 people. For comparison, the risk to residents specifically in the
Southeast Los Angeles County area is approximately one (1) in 589.25
The Task Force produced over 40 recommendations for federal, state, county, and city agencies,
and they were all adopted by the Huntington Park City Council.26 The recommendations to other
agencies emphasized the need for greater cooperation and collaboration for regional problem
solving. The recommendations included using consistent approaches, improving communication
among organizations and with the public, increasing the monitoring of all existing stationary
sources, implementing a variety of measures to reduce mobile emissions, targeting resources to
address high risk areas, and improving data sharing.27
The city recommended that South Coast AQMD "implement a more comprehensive review
process with stricter regulations (i.e., a model air quality ordinance) for stationary sources
emitting pollution, for all cities in the Southeast Los Angeles area ... [that would] be
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TO
implemented equally on a regional basis." Regional consistency is very important for the city
because individual cities that may take stricter measures to address what is a regional air quality
problem may lose badly needed development opportunities if potential businesses decide to shop
for cities in the region that are not as strict.29
The Task Force recommended that cities and South Coast AQMD consider:
• Various permit review changes.... with the assistance of South Coast AQMD,
such as providing for longer public notice periods and use of additional
noticing methods for projects or businesses that would emit toxics;
• Stricter zoning requirements;
• Bilingual notices of public meetings when relevant;
• More detailed environmental reviews and conditional use requirements for
certain types of businesses;
• Use of the California Environmental Quality Act as a base tool for additional
review procedures;
• Use of environmental checklists that include questions about emissions from
diesel vehicles;
• Monetary fines for gross polluters;
* Swift and strong enforcement methods; and
• Prohibiting idling by diesel vehicles.
Additionally, South Coast AQMD should:
• Provide cities with a list of all establishments requiring South Coast AQMD
permits, primarily potential toxic air emitting establishments so that cities can
designate them in appropriate zones; and
• Adopt a more stringent rule to lower the threshold of air toxics risk per facility
to one in a million cancer risk and a hazard index of one.30
See Appendix D for complete Task Force recommendations.
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Alameda Corridor Project
Both the Alameda Corridor project and the expansion of the Port of Los Angeles have significant
environmental implications for Huntington Park. The $2.4 billion Alameda Corridor project will
improve rail transportation of goods to and from the area's major ports.31 Huntington Park is one
of nine communities along the original Alameda Corridor, which contained an above-ground rail
line parallel to Alameda Street, a major artery for thousands of trucks that travel daily to and
from the Ports of Long Beach and Los Angeles.32 Other communities along this corridor are Los
Angeles, Vernon, South Gate, Lynwood, Compton, Carson, Wilmington, and Long Beach.33 The
ports and related activities support a significant number of secondary industries and businesses
along the route that also produce pollution in the region.34
The ports of Los Angeles and Long Beach are not only important to the area, they are also
important to the national economy. Nearly one-quarter of all products arriving in the United
States moves through these ports, which are the two busiest container ports in the country.35 By
2020, the cargo volume through these two ports is expected to triple, to an equivalent of 24.3
million containers a year.36
To keep the region's competitive advantage, the Alameda Corridor Transportation Authority
(ACTA) initiated the Alameda Corridor project to move cargo entering the United States and
goods being exported to overseas markets more efficiently.37 The project is the first rail link of
its kind that consolidates the ports' access lines into a single, 20-mile express cargo railway.38
The railway begins at street level in the southern end of the Corridor (Long Beach, Wilmington,
and Carson); moves into a 33-foot deep, 50-foot wide trench through the mid-corridor section
(Compton, Lynwood, South Gate, Huntington Park, and Vernon); and emerges at street level at
the north end, in downtown Los Angeles.
For the ten-mile trench between Compton and the borders of Vernon and Los Angeles, the tracks
are beneath the street, thus reducing congestion, emissions, and noise. The new railway also
increases safety by removing rail crossings from public access and facilitates the mobility and
access of emergency response vehicles. The trench accommodates two sets of railroad tracks
and a service road, with the possibility of accommodating a third set of tracks in the future.40
Bridges now carry vehicles over the mid-portion of the Corridor, resulting in a complete
separation of rail and motor vehicle traffic.41 Additionally, the project widened Alameda Street
to six lanes, with intersection improvements.42
Environmental impact statements for the Corridor estimated that it would:
• Reduce emissions from idling automobiles, trucks, and buses by 54 percent, by eliminating
over 200 train/traffic crossings;
• Reduce emissions from trains by up to 28 percent;
• Decrease noise pollution by 90 percent along the Corridor, since 10 miles of the project
lies underground and trains no longer have to blow the train horns to signal their arrival;
and
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Reduce traffic congestion at crossings and greatly improve public safety.
43
44
In addition, over one million tons of hazardous waste along the right-of-way was removed.
The project also included a job training and development element.45 The job-training program
has graduated 880 Alameda Corridor residents from the pre-apprenticeship training program and
another 401 residents have graduated from the non-trade training program. ACT A also agreed to
hire at least 30 percent of its new construction workers from low-income communities
surrounding the Corridor.46
Huntington Park officials acknowledge that the Corridor project has reduced traffic congestion
and improved current air quality.47 A resident from the community, who has lived there for
more than 38 years within a few blocks of the Corridor, affirmed that there have also been
tremendous improvements in noise reduction, such that he can no longer hear the trains.
Concerns remain, however, that the volume of rail traffic alone could increase by six-fold over
the next ten years.49 Further, truck traffic associated with the expanded activity generated by the
Corridor and the expansion of the Port of Los Angeles could increase, which could present
challenges to communities like Huntington Park that are also near major interstate highways.50
Another concern is that the new below-grade rail lines accommodate double-decker trains
carrying twice as much cargo as the former above-grade rail lines.51 Communities for a Better
Environment (CBE), a California-based "environmental health and justice non-profit
organization that promotes clean air, clean water, and the development of toxin-free
communities,"52 has objected to the amounts and types of materials these trains will be carrying
and what that may mean for potential risks associated with derailments, hazardous material
spills, or other accidents.53 CBE has also noted the increased traffic generated by the growth of
the ports and related plans for expansion of nearby highways, such as Interstate 710. An
additional worry is that clean fuel for the diesel-operated trains will not be available until 2020.
Thus, combined with the increased tram traffic, the railway will subject neighboring
communities to high levels of diesel emissions.55
Los Angeles Port Expansion
In 1994, the Port of Los Angeles initiated a multi-year, multi-phased expansion project to
dramatically expand its ability to handle containerized cargo, which has increased over 50
percent in recent years.56 One phase of the project, begun in 2001, was the construction of a
174-acre container complex.57 The Port development hit a snag in 2001, when Los Angeles was
sued by environmental and community groups near the Port for "failing to assess the
environmental impact of the expansion." In March 2003, the parties reached a establishing "a
$50 million fund to address impacts of Port operations in the community, fully evaluate and
mitigate the impacts of the proposed terminal, and commit to specific steps to address terminal
pollution."59
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Impacts on the local community of Wilmington, California will be reduced by:
• Providing electric power for ships berthed at the China Shipping terminal so they do
not run their diesel engines while docked;
• Requiring the use of cleaner alternative fuel heavy-duty yard trucks at the
terminal; and
• Developing and implementing a traffic plan for the terminal and other Port
operations.60
Ten million dollars of the total $50 million mitigation fund will also be used for incentives to
clean up independently owned diesel trucks serving the Port.61 Court documents noted that "as
many as 250 of the world's largest container vessels would call at the terminal—with cargo to be
moved by as many as one million trucks every year."62 Many of those trucks may also be using
highways and streets adjacent to Huntington Park, which is approximately 18 miles from
Wilmington.63
ENVIRONMENTAL JUSTICE CONCERNS
Health Issues
The major environmental health concerns for Huntington Park residents are associated with air
pollution. Interviews with city officials, community members, and research done by an area
environmental organization also confirm that air pollution is the top environmental justice
concern.64
As noted earlier, the MATES II study identified diesel emissions as the major health risk for this
area. According to a recent EPA health assessment on diesel emissions:
Long-term (i.e., chronic) exposure to DE [diesel exhaust] is likely to pose a lung
cancer hazard as well as damage the lung in other ways depending on exposure.
...Short-term (i.e., acute) exposure can cause transient irritation and inflammatory
symptoms, although the nature and extent of these symptoms are highly variable
across the population. ... [Ejvidence is emerging that diesel exhaust exacerbates
existing allergies and asthma symptoms.65 ... [S]hort-term exposure can cause
acute irritation (e.g., eye, throat, brochial), neurophysiological symptoms (e.g.,
lightheadedness, nausea), and respiratory symptoms (cough, phlegm).
Given existing evidence, the EPA assessment notes it is a "prudent health choice [to presume] a
cancer hazard for [diesel exhaust] at environmental levels of exposure."67 For these reasons, the
South Coast AQMD took a number of actions to reduce air toxics in response to the results of
MATES II, including:
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Focusing more on reducing diesel emissions;
Adopting a new source review program for sources of air toxics;
Developing an air toxics control plan that is likely to use existing legal authorities to
adopt a series of new rules addressing dry cleaning solvents, the film cleaning
industry, and methylene chloride emissions; and
Initiating a program to assess cumulative risks at large facilities and require them to
go on an "air toxic diet" if their total health risks exceed 25 in 1,000,000.
Figure 5-3
Zoning Codes
Sourae: Citv /oni
Heavy inmism
El Light industry
• Cosmncrcia!
D Residential
Schools
Source: Communities For A Better Environment
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The study also prompted South Coast AQMD to develop an air toxics control plan "to reduce
toxics by an additional 31 percent beyond what would be expected by 2010 under existing local,
state, and federal control programs."69 In addition to the measures noted above, the plan
includes:
• Implementing the proposed new source review program for toxics and
strengthening the facility-wide permitting program for toxic air contaminants;
• Developing new rules to control air toxics from chrome plating and dry
cleaning, and new permitting guidelines for stationary source diesel
generators;
• Increasing controls of toxic air emissions from consumer products;
•
Developing a bus fleet rule that will encourage transit operations to retire
dirtier buses or purchase alternative fuel buses; and
70
• Developing more stringent emission standards for new bus engines.
Because Huntington Park is in an ozone (O3) nonattainment area, city residents are exposed to
the health effects associated with ozone exposure. A recent EPA report about short-term (less
than eight hours) exposures to ozone concluded:
Recent epidemiology studies addressing the effects of short-term ambient
exposure to O3 in the population have yielded significant associations with a wide
range of health outcomes, including lung function decrements, aggravation of
preexisting respiratory disease, increases in daily hospital admissions and
emergency department visits for respiratory causes, and increased mortality.71
Additionally, "available data indicate that exposure to O3 for months and years causes structural
changes in several regions of the RT [respiratory tract];" and "the apparent lack of reversal of
effects during periods of clean air exposure raises concern that seasonal exposures may have a
cumulative impact over many years."
Another study on the health effects of long-term exposure to ambient air pollution found:
Areas...[where] either ozone or particulate matter levels are high...[are]
associated with substantial morbidity including possible development of asthma,
development of chronic bronchitis, and retardation of lung development in
children. High daily ambient concentrations of ozone and/or particulate matter
were associated with increased school absenteeism, acute reductions in lung
function and increases in symptoms, and increased hospitalization rates.73
Los Angeles County is also a nonattainment area for carbon monoxide. A recent EPA report
notes more research is needed to understand more reliably chronic exposure "to low
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concentrations from either ambient population-exposures studies or from occupational studies."
However, health effects of exposure to carbon monoxide may include:
• Decreased exercise performance in healthy individuals;
• Increased cardiovascular hospital admissions and daily mortality, especially
for individuals over 65 years of age;
• Increased cerebral blood flows in healthy subjects, even at very low exposure
levels; and
• Reduction in birth weight at high levels, though pregnant women and
75
developing fetuses have been identified as being at risk to ambient levels.
Although most studies show that air pollution does not appear to cause asthma directly, asthma
in children is exacerbated by air pollution.76 There is currently no tracking system for asthma in
California, so the exact number of children who have the illness is unknown.77 However, the
prevalence of self-reported asthma, especially among children, has risen dramatically in the
United States over the past 20 years.78 A University of Southern California Children's Health
Study showed that children with asthma develop more symptoms of bronchitis (cough and
phlegm) as levels of particulate air pollution increase.79 As a result, the National Institute of
Environmental Health Sciences, the South Coast AQUM, EPA, and others are supporting
research on health effects associated with air pollution for this region of the country.
Environmental Justice Assessment—Los Angeles County and Huntington Park
Research by Communities for a Better Environment has cited a number of studies on Los
Angeles County that mirror assessments in other areas of the country documenting correlations
between people-of-color communities and the location of large polluting facilities. A 1993 study
"concluded that the per capita income and the percentage of people-of-color have a statistically
significant relationship with the number of TRI [Toxics Release Inventory] facilities in a census
track" in Los Angeles County and that "Latinos were the group most likely to be
disproportionately exposed" to these facilities.81 In that same year, researchers at the University
of California at Santa Cruz came to similar conclusions when their research demonstrated that
"race was statistically more important than income in relation to toxic emissions." A 1997
study by researchers at Occidental College also demonstrated that the two most important
demographic variables in the location of hazardous treatment and storage facilities in Los
Angeles County were the percentage of minority residents and the percentage of land dedicated
to industrial use.83 The study also noted "that minorities are more than twice as likely to live in a
census tract located within one mile of a [hazardous treatment and storage facility] than
whites...."84
Huntington Park drew the attention of CBE, which has studied the city as an example of
environmental injustice in SELA, because of the health risks posed by polluting facilities
combined with impacts from mobile sources85 and the disproportionate impacts in many people-
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of-color and low-income communities.86 CBE's 1998 report Holding Our Breath, featured
Huntington Park as a cumulative risk case study and found that:
• There are severe data gaps with regard to facility data;
• Despite regulation, some facilities are exposing people to unacceptable health
hazards; and
• Even facilities that do not individually present high health risks collectively produce
fi"7
significant health hazards in the surrounding community.
Non-cancer risks are characterized by the hazard index, and a hazard index of 1.0 "corresponds
to the maximum level determined to be safe by the state of California."88 CBE examined the
emissions from a number of permitted and non-permitted facilities emitting toxics in Huntington
Park and found that hazard levels of the various facilities, combined with background levels of
pollution in some areas of the city, resulted in hazard indices ranging from 1.8 to 74—with no
values below l.O.89 They also found that none of the facilities presented a "significant health
impact individually," but cumulative impacts from three facilities produced a cancer risk of ten
in one million. California state law (Proposition 65) requires that the affected public be notified
at these risk levels.90 However, because the risk came from three individual facilities, rather than
from a single source, the public had not been notified. The 1998 CBE study argued for a
cumulative approach to risk assessment to account for impacts from multiple sources. South
Coast AQMD has responded to these concerns about the need to do cumulative assessments and
is currently investigating regulatory options for addressing cumulative impacts from air toxic
emissions. 2
"Asthmatown"
In the 1980s, residents of Huntington Park began describing the northernmost area of the city,
which is zoned industrial with scattered residential areas, as "Asthmatown" because so many of
the neighborhood's children suffered from asthma.93 This neighborhood also borders the
adjacent jurisdiction of Vernon, which is a predominantly industrial area that includes large and
highly toxic manufacturing facilities and very few residents. Vernon's city motto—
"Exclusively Industrial"—emphasizes this reality. Residents are often separated from industrial
operations by only a chain link fence or a sheet metal divider.95 According to Huntington Park
sources, this area was zoned for manufacturing early in the city's history, but the zoning
ordinances did not prohibit residential development until the 1960s. The result was housing
interspersed with industry.96
"La Montana"
It was not until the mid-1990s that Huntington Park residents began an organized effort to
address environmental justice concerns. The impetus for this organization began in 1993, when
a company was granted a Conditional Use Permit by the Huntington Park City Council to
operate a heavy processing recycling facility for concrete and asphalt materials in an industrially
zoned area adjacent to residences.97 The conditions of the permit included "processing of
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other plans" in addition to the general plan, but these other plans must be consistent with the
general plan.124 Furthermore, although regional plans may be developed and adopted by the
regional planning districts, such plans are "advisory only and shall not have any binding effect
on the counties and cities located within the boundaries of the regional planning district for
which the regional plan is adopted."125
In an effort to facilitate "effective and harmonious" planning, all city, county, and other local
planning agencies are required to submit their general plans and/or master plans, zoning
ordinances, and subdivision regulations to the regional planning board; a similar filing
requirement, for informational purposes, exists for the state agencies with respect to the regional
planning boards.1 Cities and counties may submit local planning and zoning proposals to the
regional planning board for advice; and such advice "shall consist of a report as to the
conformance of such proposals to the regional plan, the possible effect of such proposals on
other portions of the region, and any other matters which in the judgment of the board may be of
assistance to the body requesting such advice."127
Public Participation Requirements for Localities
The California Assembly has specifically recognized the importance of public participation in
land use planning, declaring state policy to be that "each state, regional and local agency
concerned in the planning process involve the public through public hearings, informative
meetings, publicity and other means available to them, and that at such hearings and other
forums, the public be afforded the opportunity to respond to clearly defined alternative
objectives, policies and actions."128 Specifically in the area of local plan development, the
enabling statute requires that that the planning agency provide opportunities for the involvement
of citizens; public agencies; public utility companies; and civic, education, and other community
groups.129
Reporting Requirements for Localities
City and county planning agencies are required to report annually to the City Council, the state's
Office of Planning and Research, and the state's Department of Housing and Community
Development.130 The regional planning board is also required to report annually to the
legislative bodies and to the planning agencies of all of the counties, cities, and other
governmental agencies within the region for the purpose of reporting on the status of the regional
plan, notifying recipients of amendments and revisions within the past year, and providing a
report of other major activities.131
Updates of Plans
Local planning agencies are required to "periodically review, and revise, as necessary" local
general plans.132 There is no specified statutory timeframe for such periodic review, although the
Office of Planning and Research is required to notify cities and counties that their plans have not
been revised within eight years, and the Attorney General is to be notified when plans are not
revised within 10 years.133 The only other timeframe for plan revisions relates only to the
housing element, and requires updates to that element at least every five years.134
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Coordination with Environmental Justice
The Office of Planning and Research is California's state agency responsible for coordinating
environmental justice programs.135 No later than July 1, 2003, the Office is required to
incorporate environmental justice guidelines into the next edition of the general plan guidelines
for cities and counties.136 See Appendix E for the general plan guidelines. The guidelines
recommend that general plans include methods for:
• Planning for the equitable distribution of new public facilities and services that
increase and enhance community quality of life throughout the community, given the
fiscal and legal constraints that restrict the siting of these facilities;
• Locating industrial facilities and uses (if any) containing or producing materials that
pose a significant hazard to human health and safety (even with the best available
technology) because of their quantities, concentrations, or physical or chemical
characteristics in a manner that seeks to avoid over-concentrating these uses in
proximity to schools or residential dwellings;
• Locating new schools and residential dwellings in a manner that seeks to avoid
locating their proximity to industrial facilities and uses that containing or producing
material that poses a significant hazard to human health and safety because of their
quantities, concentrations, or physical or chemical characteristics; and
• Promoting more livable communities by expanding opportunities for transit-oriented
development so that residents minimize traffic and pollution impacts from traveling
for purposes of work, shopping, schools, and recreation.
See Appendix F for more details on California State planning requirements.
Local Governance, Planning, and Zoning in Huntington Park
Governance
Huntington Park, like most California cities, is a general law city. It is incorporated and
functions under the general laws of the state, most of which are found in California's
Government Code.138 The city a has a five-member City Council comprised of a Mayor, Vice
Mayor, and three council members who are elected at large by registered voters of the city. Each
council member serves a four-year term and the terms are staggered.139 In the 2003 General
Municipal Election, voters limited council members to three consecutive terms, with a proviso
that a member could hold office again after being out of office for at least one general municipal
election.140 The city currently has only 12,000 registered voters.141
The city manager is appointed by the City Council to carry out their policies and is responsible
for the overall city administration of the city.
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Planning and Zoning
The Huntington Park planning division is responsible for implementing the city's goals and
objectives, as outlined in the general plan, including reviewing development requests and then-
impacts on the environment and compatibility with neighboring uses.1 The division provides
information and support to the Planning Commission and the City Council.144 Elements of the
Huntington Park general plan include land use, housing, circulation, open space, conservation,
safety, noise, public facilities, and urban design.145 The Planning Commission is made up of five
members from the community, who are appointed by the City Council.146 The city currently has
three planners and a manager for its planning and development activities, which are a high
priority for the City Council.147
Huntington Park's zoning codes were updated in October 2001.148 The new code, which revised
a code from the 1980s, includes specific changes designed to address the concerns that have led
to the city's environmental justice problems. The new code now includes language in the section
on commercial/office/mixed use zones to enhance the city's ability to condition permits based on
a facility's proximity to residential areas and the level of adverse impacts.149 The city has also
adopted a limited idling ordinance for diesel vehicles, and is currently studying its primary
manufacturing zone to determine what will be the best use for this area, given the city's desire
for more commercial development.150
When combined with the city's existing authority under the California Environmental Quality
Act (CEQA) to consider environmental impacts, the city believes it has effective tools within its
current authorities to address environmental justice concerns.151 State and local agencies have,
in fact, been required to utilize CEQA since its enactment in 1970. The law was designed to
improve and maintain the quality of the environment by instituting a system of "checks and
balances for land use development and management decisions hi California."152 It requires
agencies to:
• Identify the significant environmental effects of their actions;
• Avoid those significant environmental effects where feasible; or
• Mitigate those significant environmental effects, where feasible.153
If an action will have significant impacts, the state or local agency with the lead must revise the
project to mitigate those impacts. While there is no precise definition of "significance," general
guidelines are provided to assist agencies in making determinations.154
In the past, Huntington Park officials would have more automatically approved a manufacturing
function for a manufacturing zone, without regard for what the local impacts might be. Now
they evaluate projects more closely for site-specific impacts, like diesel emissions from truck
traffic, before making a determination on a siting proposal.155 Also, South Coast AQMD permit
approval does not automatically mean approval for siting. The city may grant approval with
conditions for mitigation of impacts.156 The community activism around the cement recycling
76
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facility and the 1999 results of the MATES II study educated local government officials to the
need to address more localized impacts.
Where formal means and authorities do not exist, the city has attempted to use informal avenues
for resolving environmental justice problems. A case in point concerns a neighboring
jurisdiction where there are plans to build a gas-fired electric power plant. The City Council
authorized the planning division to recommend mitigation measures for the plant because the
city is not in attainment for particulate matter, and the plant would produce particulates
equivalent to 15-20 idling trucks.157 The City Council further authorized a letter to the California
Energy Commission requesting: 1) that there be a net overall reduction in pollution if the facility
is built; 2) that the reduction be made in the local impact area; and 3) that there be no deferred
acquisition of credits, although otherwise permitted by California's Regional Clean Air
Incentives Market (RECLAIM) program for emissions trading.158
City officials think the project will probably be approved because South Coast AQMD found the
project had met all regulatory concerns, and there is no requirement for reductions in the local
impact area. Huntington Park officials have informally appealed to officials in the the adjacent
city who have committed to trying to reduce local impacts. A city official offered this as an
example of the need for regional approaches. This example also illustrates that existing rules and
programs often do not take localized impacts into consideration.159
Huntington Park has not instituted any formal changes in its relationship with South Coast
AQMD. The city's continuing understanding of the problems created by air pollution and their
concern about improving the health of their community's air has lead them to seek the District's
technical assistance more than they had in the past. According to a city official, the District has,
in turn, been very responsive to city concerns.1 °
ENVIRONMENTAL PERMITTING
California's Requirements for Environmental Justice
Between 1999 and 2001, the California Legislature passed six bills dealing with environmental
justice, creating the foundation for state agency responsibility for the issue. These bills:
• Defined the term "environmental justice;"
• Authorized the state Office of Planning and Research, located in the governor's
office, to coordinate environmental justice initiatives;
• Required the California EPA to consider environmental justice issues when designing
and operating its own programs and those of its boards, departments, and offices;
• Required California EPA to convene an interagency working group and advisory
council on environmental justice to provide information and recommendations to the
working group;
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• Required the South Coast AQMD, based on the results of the MATES II study, to
spend not less than 50 percent of the funding appropriated through the year 2007 for
three diesel mitigation programs "in a manner that directly reduces air contaminants
or the public health risk associated with air contaminants, in communities with the
most significant exposure to air contaminants or localized air contaminants, in
communities with the most significant exposure to air contaminants or localized
contaminants...including communities of minority populations or low-income
populations or both;" and
• Required the Office of Planning and Research to include guidelines for addressing
environmental justice matters in city and county general plans in its next edition, no
later than July 1,2003.161
South Coast Air Quality Management District
South Coast AQMD has responsibility for environmental permitting within its boundaries, which
include Huntington Park. The District adopted environmental justice principles in 1997, two
years before the legislative mandate, and adopted a set often initiatives to ensure environmental
equity.162 They also developed a series of action items, the first set of which were accomplished.
Progress on these items is routinely reported to the District's governing board and made
available to the public through their website.163
The District provides critical technical resources for local governments because of its overall
commitment to environmental justice, its concrete actions to develop and refine rules to further
risk reduction, its development of tools for District staff and local officials, and its efforts to
improve communication with the public. Progress on the District's environmental justice efforts
is reported in three categories: further reduced health risks; greater community access and
involvement; and economic incentives for accelerated mitigation.
Figure 5-4 contains excerpts from the April 2003 update on the District's progress and illustrates
the level of thoroughness with which the agency has pursued its environmental justice mandate.
The District's performance-based approach has made it an important asset for Huntington Park
and other cities in the area.
Public Participation
Huntington Park officials have made some efforts to improve public participation, like working
with South Coast AQMD on their town hall meetings with the community; but they acknowledge
that more could be done.164 One community resident suggested that one way to improve
outreach would be to conduct door-to-door distribution of information.165 The city is working to
develop neighborhood commissions as part of an ongoing neighborhood improvement program.
The neighborhood commissions could help to engage more residents in civic issues by providing
organized vehicles for them to work with the City Council. These commissions could also serve
as another mechanism for raising environmental justice issues.
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South Coast AQMD
Fi8Ure 5~4 Progress Update on Environmental Justice-2003 (excerpts)
.finery to enhance its existing safety systems and reduce volatility and
ur quality element for use by local governments in their
ses" model to address and mitigate significant air quality
impacts in specific areas; Alame^°™^ telolds^or subregions; projects over the threshold
wSneTto^onsider mitigation ^^^^^^^^ in 2003 for the clean school bus
. APProvedaHocationof70percentof^ he lty will go toward.to
prcgram. For settlements B^^^S^L^
purfhase of clean school buses or retrofi c^™^ collected during the first six months of
facility paying the penalty. Ten P^ent ^^^e u Consortium and another 10
*»*.
Environmental Quality Act alternatives.
„»!,, « d|kt
a working group to e»
Mitigation" actions.
Source: South Coast Air Quality Management Distirct
•
79
sibleenvironmental justice concerns
— for °ff-road
pedite CEQA analysis of any major project implement^ "Super
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ANALYSIS AND RECOMMENDATIONS
Leadership and Accountability
P.* count 10 ,o,k „ bolt lo md
, who raM )hem
cm»' ">'
, =, ,n
«™en»'"'', «Wi«S fc M.yor and Cto
. EstabHshing prionties based on mventorying
• Implementing stricter standards where needed;
• Increasing efforts to reduce diesel emissions;
• Improving monitoring; and
• Improving communication with the public and local government
The CIty also reused its poH.es and processes to address env,onmental Justice concerns by:
of adverse impact;
to
neighborhoods and level
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• Instituting an ordinance limited diesel vehicle idling;
• Improving the city's relationship with South Coast AQMD, especially by utilizing the
technical services they provide more effectively; and
• Working informally with adjacent jurisdictions to reduce emission impacts from
sources outside city boundaries.
Additionally, the City Council has attempted to influence decisions by adjacent jurisdictions to
prevent further local impacts. The result is an informal agreement to develop trading credits
locally so they can reduce impacts on Huntington Park.
South Coast AQMD officials have demonstrated leadership by adopting a policy and
implementing an agenda for environmental justice. The District's agenda includes three major
categories of effort:
• Risk reduction;
• Greater community access and involvement; and
• Economic incentives for accelerated mitigation.
Moreover, the District has made itself accountable by:
* Developing quantifiable measures for progress;
• Reporting progress routinely to its governing board;
* Making information on its activities available to the public through its website and
"clean air data depositories" located at eight community sites in the district; and
• Using a stakeholder advisory group and otherwise engaging the community and other
stakeholders in critical projects, such as a current project on assessment of cumulative
risks.
South Coast AQMD has also been a willing, effective partner for Huntington Park and has
provided it with technical support. The city and the District have also conducted joint town hall
meetings.
Permitting and Planning and Zoning Authorities
Nothing has changed about the permitting process as administered by South Coast AQMD. The
District has, however, enhanced other activities that support this process by:
• Enhancing monitoring, including purchasing new equipment and exploring technical
innovations that show promise for future application in monitoring local impacts;
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* Initiating guidance for local governments on air quality to assist them in making
better local decisions;
• Beginning to conduct an evaluation of a feasible least-toxic alternative for all rules
that require California Environmental Quality Act (CEQA) alternatives;
• Conducting environmental justice training for staff;
• Improving the availability of data to the public on "hot spot" risk assessments,
Notices to Comply, and Notices of Violation;
• Enhancing public notification procedures;
• Surveying stakeholders to identify their website information needs; and
• Improving outreach techniques, including developing new partnerships with
community organizations and translating information into other languages.
Huntington Park officials have also made several notable changes in how the city approaches
permitting. A South Coast AQMD approved permit is no longer automatically a "green light"
that allows permit holders to locate in an appropriately zoned area. Using its authority under
CEQA and its revised zoning code, the city now considers localized impacts, particularly from
diesel emissions, and may require mitigation measures before it approves a permit.
Setting Priorities and Reducing Risk
Huntington Park officials now recognize the air quality risks affecting city residents and are
committed to reducing these hazards with local initiatives such as:
• Revising zoning ordinances to address localized impacts;
• Instituting an ordinance limiting idling by diesel vehicles;
• Requiring mitigation measures, particularly for diesel emissions, because they
represent the greatest health risk for the region; and
• Reviewing permits approved by South Coast AQMD for local impacts, and
requiring mitigation before issuing final siting permits.
The city has also issued a set of recommendations to other local, regional, and federal agencies to
coordinate solving air quality problems on a regional basis, so that no one jurisdiction will
appear more stringent than the other and each jurisdiction will make maximum efforts to reduce
risk. South Coast AQMD is now working to address the city's recommendations.
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Public Participation
Public participation in Huntington Park has been critical for educating city officials about their
responsibility for addressing localized impacts of polluting activities.
City officials acknowledge they need to continue improving how the city engages the public on
environmental justice and other issues. While the city has participated with South Coast AQMD
m town hall meetings, the city hopes to set up neighborhood commissions that will enhance
opportunities for citizens to participate in local decisions.
The South Coast AQMD continues to improve its ability to engage and inform the public by
conducting better community outreach, building partnerships, enhancing its website, and making
information available at local information depositories.
Integration and Coordination
The Huntington Park case study highlights the importance of coordination to address localized
impacts. Acting alone, the city cannot fully address the air quality issues that are the major
environmental justice concern for both the city and the region. The South Coast AQMD which
develops local regulations and enforces federal requirements for the region, cannot resolve air
quality problems affecting environmental justice communities without the help of local
jurisdictions, because they make the siting decisions.
Thus South Coast AQMD has begun to develop air quality guidance that will help local
jurisdictions make more informed air quality decisions in their general plans. Huntington Park
has begun coordinating its efforts with the South Coast AQMD more effectively. Solving the air
quality problems in the region will require the coordinated efforts of other localities state
agencies, and federal authorities.
RECOMMENDATIONS
• The Huntington Park city government should continue to improve public participation
and share information on environmental and health impacts. Local officials have
recognized the need for additional work in this arena, and their efforts to date with the
South Coast AQMD and their plans to establish neighborhood commissions could serve
as a good foundation for farther progress.
• South Coast AQMD should consider how the policies, implementation strategies,
accountability measures, and tools the District has developed could be shared more
widely with other state air planning and local government agencies. Practical tools, such
as the air quality land use planning guidance that is being developed and the District's
work m response to the MATES II study, could be used as models for other state, county
and local organizations to address local sources of air pollution in people-of-color or low-
income neighborhoods.
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R
of Huntogton
ENDNOTES
^hipra Bansal and Sam Davis, Holding Our Breath: Environmental Injustice Exposed in Southeast Los Angeles,
17 (Communities for a Better Environment, July 1998),
2 Ibid.
3 Ibid.
"Ibid.
5 Ibid.
6 Ibid.
1 City of Huntington Park, "About Huntington Park,' website,
(visited June 2003).
8 Bansal and Davis, Holding Our Breath, 17.
9 U.S Census Bureau, "Your Gateway to Census 2000," website,
(visited May 2003),
10 Ibid.
11 Bansal and Davis, Holding Our Breath, 18.
<2 Greatest Cities, "Huntogton Park," website,
13 Henry Gray, Assistant Director, Community Development and Redevelopment,
Interview (April 30, 2003).
14 City of Huntington Park, "El Centre Project Description, 1 (undated).
!S Bansal and Davis, Holding Our Breath, 18.
16 Ibid
» tdrea Hricko, Mm Preston, Hays Witt, and John Peters, "Air PoMon and Children's HeaKhT Chapter excerpt
from the Health Atlas of Southern California, 1 (Umvenaty of Southern Cahforma, 1999). Available at
<^:/^Sc^^
/scehsc/atlaschap.htrnl> (visited April 2003).
» South Coast Air Quality Management District (SCAQMD), On* Air Quality and ^J^^M^
2i The South Coast Air Basin is comprised of Orange County and the non-desert portions of Los Angeles, Rivers.de,
and San Bernardino Counties, ...
22 National Academy of Public Administration, Models for Change: Efforts by Four States to Address
EnvironmentalJustice, 106 (June 2002).
24 City of Huntington Park, Air Quality Improvement Task Force Report (January 1 8, 2000).
25 Ibid., I.
26 Henry Gray, Interview (April 30, 2003).
27 City of Huntington Park, Air Quality Improvement Task Force Report,
™Ibid., 3-4.
29 Henry Gray, Interview (May 8, 2003).
30 Cirv of Huntington Park, Air Quality Improvement Task Force Report
* VeltalZ Business Outeach Manager, Alameda Corridor Transportation Authonty, In.erv.ew (August 13,
2002)
32 Alameda Corridor Transportation Authority (ACT A), "ACTA Origin," website,
(visited May 2003).
33 Ibid.
35 ACTA, The Alameda Corridor: A Project of National Significance, 1 (undated brochure).
36 ibid.
37 Ibid.
"Ibid.
*> Cari Peter Ripaldi "A Comprehensive Environmental Management Program with Regulatory Oversight for the
Alameda Corridor Transportation Project," Soil, Sediment and Water (August 2001).
41 ACTA, The Alameda Corridor; A Project of National Significance, 1 (undated).
84
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Ibid,
Carl Peter Ripaldi, "A Comprehensive Environmental Management Program."
45 Larry Wiggs, Consultant, Tutor Saliba, Interview (August 12, 2002).
ACTA, "Job Development & Training," website,
(visited May 2003); and "The Alameda Corridor Jobs Coalition Hits a Gold Mine!"Organizing, 8 (April 1998).
Jessica Maes, Councilwoman; Gregory Korduner, City Manager; Jack Wong, Assistant City Manager; Henry
Gray, Assistant Director, Community Development and Redevelopment; Manuel Acosta, Business Development
Specialist; and Bill Chow, Redevelopment/Economic Development Manager; City of Huntington Park, Interviews
(August 12,2002).
48 Dean Hickman, Community Resident, Huntington Park, Interview (March 20, 2003).
49 Veronica Soto, Interview (July 30,2002).
50 Henry Gray, Interview (April 30, 2003).
51 Veronica Soto, Interview (July 30, 2002).
Communities for a Better Environment, "About Us: Our Mission," website,
(visited July 2003).
Yuki Kidokoro, Lead Organizer and Jesus Torres, Community Organizer, Center for a Better Environment,
Interviews (August 12,2002).
54 Bahram Fazeli, Staff Researcher, Center for a Better Environment, Interview (February 28,2003).
55 Ibid.
56 City of Los Angeles, "The Port of Los Angeles- Pier 400," website,
(visited June 2003).
57 Ibid.
58 Barbara Whitaker, "Deal Clears Way for Los Angeles Port Project," New York Times (March 3, 2003).
Natural Resources Defense Council, City of Los Angeles and Community and Environmental Groups Reach
Record Settlement of Challenge to China Shipping Terminal Project at Port, Press Release (March 5, 2003).
Available at (visited July 2003).
60 Ibid.
61 Ibid.
62 Ibid.
63 Mapquest, "Mapquest," website, (visited May 2003).
See Jesse Maes, Gregory Korduner, Jack Wong, Henry Gray, Manuel Acosta, and Bill Chow, Interviews (August
12,2002); Jorge Villanueva, Interview (March 20,2003); and Bahram Fazeli, Interview (February 28, 2003).
U.S. Environmental Protection Agency (EPA), Health Assessment Document for Diesel Engine Exhaust, 1-3
(May 2002).
66 Ibid., 1-4.
67 Ibid., 1-5.
68 National Academy of Public Administration, Models for Change, 107.
69 Ibid., 108.
70 Ibid.
EPA, Air Quality Criteria for Ozone and Related Photochemical Oxidants, 1-28 (undated). Available at
(visited July 2003).
72 Ibid.
EPA, Health Effects of Long-Term Exposure to Ambient Air Pollution: Results of Ozone Epidemiology Research
Program, (undated). Available at
(visited June 2003).
74 EPA, Air Quality Criteria for Carbon Monoxide, 1-7 (June 2000).
75 Ibid., 1-8.
76 Andrea Hricko, et al., 'Air Pollution and Children's Health," 1.
Ibid.
65
11
Ibid.
"Ibid.
80 See websites for National Institute of Environmental Health Sciences, SCAQMD, and EPA for research supported
by these organizations.
85
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81 Bansal and Davis, Holding Our Breath, 13. The authors cite Lauretta Burke, Environmental Equity in Los
Angeles (Santa Barbara: National Center for Geographic Information and Analysis, July 1993), Technical Report
93-6.
82 Ibid, 14. The authors cite Andrew Szasz et. al., "The Demographics of Proximity to Toxic Releases: the Case of
Los Angeles County," paper presented at the 1993 Meetings of the American Sociological Association in Miami,
Florida (University of California, Santa Cruz: 1993).
83 Ibid The authors cite J. Tom Boer, Manuel Pastor, Jr., James L. Sadd, and Lori D. Snyder, "Is There
Environmental Racism? The Demographics of Hazardous Waste in Los Angeles County," Social Science
Quarterly, 793-810 (December 1997),
"Ibid
85 Ibid, 7.
86 Ibid, 13-15.
87 Ibid., 42.
88 SCAQMD Rule 1401, New Source Review of Toxic Air Contaminants. Available at
(visited June 2003).
89 Bansal and Davis, Holding Our Breath, 47.
90 Ibid.
91 Ibid., 49.
92 SCAQMD, White Paper on Regulatory Options for Addressing Cumulative Impacts from Air Toxic Emissions
(April 2003).
93 Bansal and Davis, Holding Our Breath, 42.
94 Ibid,, 18.
95 Ibid., 42.
96 Henry Gray, Interview (April 30,2003).
97 City of Huntington Park, Historical Chronology - Aggregate Recycling Systems, 8 (October 11,2000).
98 Ibid.
"Ibid.
mlbid.
101 Henry Gray, Interview (April 30, 2003).
102 Bansal and Davis, Holding Our Breath, 6-7.
103 Henry Gray, Interview (April 30,2003).
104 Ibid., 7.
105 Historical Chronology, 8.
106 Ibid, 7.
107 Bansal and Davis, Holding Our Breath, 8.
108 Ibid.
109 Ibid, 9.
110 Historical Chronology, 7.
111 Henry Gray, Interview (April 30,2003).
112 See generally, West's Ann. Cal. Gov. Code sec. 65100 et. seq., (establishment of planning agencies,
commissions, departments); West's Ann. Cal. Gov. Code sec. 65800 et. seq., (general plan and specific plan
requirements); West's Ann. Cal. Gov. Code. Sec. 65800, et. seq. (zoning regulation); and West's Ann. Cal. Gov.
Code sec. 66410, et. seq. (subdivision regulation).
113 Ibid., Sec. 65035.
114 Ibid
115 Ibid Sec. 65300.
116 Henry Gray, Interview (April 29,2003).
117 West's Ann. Cal. Gov. Code Sec. 65301 (1997).
mlbid. Sec. 65302.
119 Ibid., Sec. 65303.
120 West's Ann. Cal. Gov. Code Sec. 65352 (1997).
121 Ibid.
122 Ibid., Sec. 65455 and Sec. 65860.
123 Ibid., Sec. 65455.
124 Ibid., Sec. 65359.
86
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125 Ibid., Sec. 65060.8.
126
Ibid., Sec. 65067.
127 Ibid., Sec. 65067.2.
128 Ibid., Sec. 65033.
129 Ibid., Sec. 56351.
130 Ibid., Sec. 65307 and Sec. 65400.
131 Ibid., Sec. 65067.3.
132 Ibid., Sec. 65103.
133 Ibid., Sec. 65040.6.
134 Ibid., Sec. 65588.
135 Ibid., Sec. 65040.12 (Cum. Supp. 2002). The Office is also charged with reviewing and evaluating information
from federal agencies obtained as a result of their respective regulatory activities under federal Executive Order
12898, and from the State Working Group on Environmental Justice that was established pursuant to Public
Resources Code Sec. 72002.
136 Ibid.
137 Ibid.
138 Henry Gray, E-mail (May 1, 2003).
139 City of Huntington Park, "City Council, "website,
(visited July 2003).
140 Ibid.
141 Ibid., "Demographics," website, (visited July 2003).
142 Ibid.
143 Ibid., "Planning and Zoning Division," website, http://www.huntingtonpark.org/com_dev/plan_zone/pl_zn.htm>
(visited July 2003).
145 Ibid.
146 Henry Gray, Interview (March 25, 2003).
147 Ibid., (May 8, 2003).
148 Huntington Park Zoning Code, Title 9, Planning and Zoning Regulations (October 15, 2001).
149 Ibid., IV- 25-26.
150 Henry Gray, Interview (May 8, 2003).
151 Ibid., (March 25, 2003).
1 ^9
California Environmental Resources Evaluation System, "California Environmental Quality Act." Available at
(visited May 2003).
153 Ibid.
154 Ibid.
155 Henry Gray, Interview (March 25, 2003).
156 Ibid
157 Ibid.
mlbid.
159 Ibid.
160 Ibid.
161 National Academy of Public Administration, Models for Change, 89-91 .
SCAQMD, Guiding Principles ofEnvironmentalJustice (1997). Available at
(visited July 2003).
163 Ibid
164 Ibid.
165 Jorge Villanueva, Interview (March 20, 2003).
166 Henry Gray, Interview, (May 8, 2003).
87
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CHAPTER SIX
AUSTIN, TEXAS
FINDINGS
Finding 1. Mandated racial segregation, historic zoning patterns, and changing economies
have created many of the environmental justice problems that East Austin faces today. In the past,
segregation required non-whites to live in East Austin; and cumulative industrial zoning focused
economic growth in East Austin, allowing homes to be built next to factories so that workers
could walk to work. Strong community pressure in the early 1990s, spearheaded by People
Organized in Defense of Earth and her Resources, motivated the city to address environmental
justice.
Finding 2. Using its planning and zoning responsibilities, the city of Austin responded to
environmental justice concerns of its citizenry by rezoning incompatible uses in East Austin,
adopting a neighborhood approach to planning, enacting overlay ordinances, expanding public
participation, and addressing environmental and public health risks at city-owned properties.
Finding 3. The Texas Commission on Environmental Quality (TCEQ) has responsibility for
environmental permits for all facilities located in Austin. TCEQ does not believe it has authority
to consider environmental justice concerns in the permitting process. Additionally, TCEQ and the
city of Austin do not communicate regarding their separate duties (sitting and pollution
permitting) where they overlap, namely with regard to protection of public health and welfare.
Finding 4. Solving the problems of declining air quality as well as possible future water
scarcity in Austin and the central region of Texas will require cross-jurisdictional coordination
among municipalities, counties, and the state.
Finding 5. Organized and dedicated community activism, coupled with a local government
that is willing to be responsive, can bring about mutually beneficial change and progress.
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INTRODUCTION
In this case study of Austin, Texas, persistent pressure by community groups—specifically People
Organized in Defense of Earth and her Resources (PODER)—brought environmental justice
concerns, such as proximity to hazardous land uses, unequal exposure to environmental pollution,
and lack of community consultation and advice, to the attention of the local government. Faced
with these concerns, the city of Austin, in time, choose action over indifference. The
collaborative effort that resulted is somewhat unique, and has been beneficial to both the city and
the citizenry.
Working with a local government that is willing to be responsive allows community groups to
direct their energies towards creating beneficial change, rather than having that same energy used
less purposefully and/or drained through constant conflicts. The collaborative relationship
between citizens and Austin officials has created opportunities to mitigate or remove some locally
unwanted land uses, for local community groups to be further involved in the decisions of local
government, and for on-going high levels of citizen participation and local officials' awareness of
environmental justice concerns.
In 1995, a committee of 22 citizens chosen by the Austin City Council presented the Council with
its Citizens Planning Committee Report.1 The report detailed 12 recommendations, followed by
several actions for implementation that ".. .represent the most useful set of actions that need to be
undertaken at this time in order to begin to improve the livability of [Austin]." The Committee
believed Austin was on the "wrong road," and that their recommendations were crucial for Austin
to "follow another way" towards growth and prosperity.2
In the context of this Academy study, two of the Committee's recommendations are especially
relevant. The Committee's seventh recommendation was that "reinvestment, redevelopment, and
remediation in East Austin must be encouraged and
facilitated by the city's planning and development process.
Austin cannot sustain growth and will become less
attractive unless the total conditions are corrected and the
quality of life for East Austin communities is improved."3
The eighth recommendation read: "consideration needs to
be given to the disproportionate impact of negative
environmental facilities on low-income neighborhoods and
communities of color."4 The Committee then outlined four
actions that Austin should take to achieve this
recommendation:
• Municipal governments, in conjunction with neighborhood residents, need to
conduct land use compatibility assessments, with rollback zoning as an option
to address land use incompatibility.
• Cumulative impacts of emissions from pollution sources/facilities need to be
considered in the siting, location, and permitting of facilities.
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• The city should inventory all city-owned land, check for potential
environmental pollutants, and remediate—with priority given to areas with the
greatest potential for harm.
• Potentially hazardous or nuisance-generating development initiatives need to
include environmental and public health provisions, such as environmental
impact statements and site demographic statements, to provide the community
and governmental decision-makers with a factual basis to consider the human
impacts of a proposed development.5
The Citizens' Planning Committee Report proposed both the vision and action necessary to guide
Austin to a strong and vibrant future. The report firmly tied the resolution of environmental
justice issues to forward-looking city planning, directly linking planning and zoning with the
achievement of environmental equity.
This chapter analyzes how Austin is moving toward this vision, as well as where it has failed, and
vividly illustrates how addressing environmental justice is neither simple, nor insurmountable.
This analysis also shows how history lives as changes in planning concepts, race relations, and
economies, among other influences, continue to mold the growth or decay of modern cities in this
country.
BACKGROUND
About Austin
Austin, the capital of Texas, lies just southeast of the center of the state in Travis and Williamson
Counties. Austin occupies 272 square miles, but the city has extraterritorial jurisdiction for
planning and zoning in unincorporated areas up to five miles outside the city borders, so the city's
entire jurisdictional area covers 355 square miles.6
In the 1970s and 1980s, urban core population declined, but the 1990s saw that trend reversed—
with growth in almost every part of the city. The U.S. Census for 2000 measured the population at
656,562. Over half are renters,7 due to the fact that Austin is home to the University of Texas and
its many students.8
The U.S. Census for 2000 also reports that Austin's major industries are: education, health and
social services (17.6 percent); professional, scientific, management, administrative, and waste
management services (13.8 percent); manufacturing (12.6 percent); retail trade (10.9 percent); and
all other categories at less than ten percent each.9 The top five employers are the city of Austin,
the state of Texas, the University of Texas at Austin, Motorola, and Dell.10 High-technology
industries are increasingly drawn to Travis County to tap into its young (average age is 30),11
highly educated, non-unionized workforce.12 Austin is very automobile-dependent; only seven
percent of all workers take public transportation or walk to work regularly.13
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The city operates several revenue-generating facilities, including water and electric utilities, a
hospital, an airport, and waste hauling operations. These revenues expand the city's general fund,
enhancing the city's ability to
provide a high level of services Figure 6-1
through its 12,000 city
employees.
14
Austin, Texas—Demographics
Size
Location:
Total Population:
Race and Ethnicity*:
African-American:
White:
Hispanic*:
"some other race":
Unemployment Rate:
Median Household Income:
Individuals Below the Poverty Level:
High School Graduate or Higher:
272 square miles
Travis, Williamson
Counties
21,216
10 percent
65 percent
30 percent
16 percent
3.1 percent
$42,689
20.7 percent
83.4 percent
Austin is a multi-racial city. As
shown in Figure 6-1, whites
comprise 65 percent of the
population; Hispanics (any race)
30 percent, African-Americans
10 percent, and 16 percent
identify themselves as "some
other race."15 One-third of
Austin's residents speak a
language other than English.16
Educational attainment is
generally high: 40 percent of
residents have earned a
bachelor's degree, while 83.4 percent of the population has earned high a school diploma or
higher.17 The median household income is $42,689 per year, but pockets of poverty coexist
alongside relative affluence, with approximately 20 percent of households making less than
$25,000 per year.18 Roughly 14 percent of the general population (16.5 percent of children) lives
below the poverty line.
*Totai does not add up to 100 percent because some individuals specified
more than one race.
Source: U.S. Census Bureau, Census 2000
19
Today, Austin is still largely segregated, with the east side home predominately to Hispanics and
African-Americans, and the west side home predominantly to whites. For example, while only 16
percent of Austin's population lives in East Austin, 46 percent of the total African-American
population and 29 percent of the total Hispanic population reside there.20 East Austin also has a
30 percent poverty rate, more than double the city's overall rate.21
Economic History
Texas was annexed by the United States in 1845. In 1871, the railroad linked Austin to Houston
and the Gulf of Mexico, bringing the industrial boom to Austin, and in 1872, Austin was
permanently designated the capital of Texas. For many years, Austin's economy relied heavily on
government, agriculture, the University of Texas (founded in 1881), and music, which made it
possible for Austin "...to ride out the inconsistent economic activities, and avoid the inhuman
living conditions, that the Industrial Era brought with it."22 In fact, the railroad actually brought
culture and an increase in the standard living in Austin, culminating in "massive economic
growth" and an "unprecedented governmental and private sector building boom" starting in the
1880s.
23
Austin's ability to attract industry was hampered by limited supplies of electricity. Although, the
Colorado River was dammed in 1893 to produce electricity and industrial opportunities, the dam
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was swiftly destroyed by flood in 1900. Between the dam's construction and destruction, steel
and iron companies opened and operated successfully. After the flood and loss of electricity, the
industries left; and Austin fell back upon its strong government and education economies.24
The 1920s were marked by national highway construction and an oil discovery at the University
of Texas, which briefly delayed the economic impact of the Great Depression. Although delayed,
the Depression did arrive in Austin. After struggling economically, not unlike most of the country,
Austin's economy gained jobs and vitality with President Roosevelt's New Deal. Specifically, the
New Deal and many programs such as the Public Works Administration brought funds to the
University and state government.25
Environmental Setting
Austin lies amidst a network of canyons that have the potential to cause localized flash floods and
erosion damage even during small, two-year storms.26 Whereas East Austin has many small
watersheds, West Austin has few watersheds and becomes very flat and level, exacerbating runoff
and its environmental impacts. West Austin is also the location of the Edwards Aquifer —a water
supply source—in addition to several vulnerable species of amphibians and birds. In recent years,
to protect the water supply and vulnerable species, Austin has strictly limited, through
conservation plans and their supporting ordinances, commercial and industrial development hi
West Austin.
Air Quality
The air quality in central Texas has been declining due to the growing number of polluting
activities in the area.28 Higher ozone levels are driven by increases in vehicle traffic and an
expanding regional population. 29 In 1999, the Central Texas Air Quality Region exceeded the
eight-hour ozone standard for ground-level ozone. For this violation, the region was designated as
a nonattainment area by the EPA.30
ENVIRONMENTAL JUSTICE CONCERNS
Environmental Justice Organizations
Austin has a politically active citizenry, with many community groups and neighborhood
associations. The pre-eminent citizens' group is People Organized in Defense of Earth and her
Resources (PODER).31 The organization's mission is to "redefine environmental issues as social
and economic justice issues, and collectively set their own agenda to address these concerns as
basic human rights. They seek to empower their communities through education, advocacy and
action." PODER and other community groups have forced the city to address environmental
justice issues in East Austin neighborhoods. The efforts of PODER and other groups helped move
the city of Austin and Travis County to address a series of environmental justice problems.
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Health Concerns
Two investigations regarding the possible exposure of Austin residents to toxics have been
conducted over the last several years. In 1993, the county probed contamination from the local
tank farm; and in 1999, Austin's Health and Human Services Department (HHS) worked with the
Texas Department of Health (TDH) to study impacts of the Holly Street Power Plant. Tests at the
tank farm found evidence of contamination, while no urgent hazards at the power plant were
found.33
The state health department has also collaborated with the Community Action Network (CAN)34
on a recent health assessment looking at gaps in services and the present state of health in Travis
County and Austin.35 In April 2001, CAN released Prescription for Wellness: Physical, Mental
Health, and Substance Abuse to provide "credible data on the community's physical health,
mental health, and substance abuse status for the purpose of future planning, policy
recommendations, issue solutions, and resource allocations."36 That study found:
The health of most Austin and Travis County residents is good; however this good
health is not shared equally by all citizens...the leading causes of death vary
among age groups and by race/ethnicity. In fact, significant disparities exist
between racial/ethnic populations, with minorities having higher rates of disease
incidence for many physical health problems in comparison to whites. For
example, the Travis County ten-year average (1989-1998) age-adjusted mortality
rates for stroke in Blacks is 65.3 percent higher than that of white non-Hispanic
and that of Hispanics is 19.4 percent higher than that of whites.37
The report also considered health effects related to water quality, solid waste, sewage/wastewater
disposal, and air quality. The report did not find significant problems with regard to water quality,
solid waste, or sewage/wastewater disposal; but the report did raise several questions about air
quality.38
The Austin/Travis County Health Department39 operates health clinics throughout low-income
and minority neighborhoods. Austin and Travis County fund medical assistance programs to give
underserved populations access to regular, preventative, and urgent health care services. The
health department is also working with the Community Action Network to address gaps in
services for different communities.
The Health Department is further collaborating with the Centers for Disease Control and
Prevention (CDC) on a local version of CDC's program, Healthy People 2010.40 The Department
is working with the private sector, planners, and hospital administrators to promote the program.
All concerns and complaints about industrial issues are funneled through the Health Department,
which determines the most appropriate follow-up measures, including contacting appropriate state
authorities. As part of this project, the Department is also undertaking a health study on the
impacts of various industrial exposures.41
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Impacts of Zoning
Segregation Through Zoning Laws
When the city's first comprehensive plan and zoning laws were passed in 1928 and 1931,
respectively, segregation in Austin was mandatory.42 Public services were set up for non-white
residents in East Austin, thus reducing the need to duplicate structures and services—one for
whites and one for non-whites—such as schools, libraries, and parks.43 The public housing
authority segregated Anglos, African-Americans, and Mexican-Americans into different housing
projects.44 Additionally, restrictive covenants were placed on the deeds for many parcels of land in
the white areas, prohibiting people-of-color (predominantly African-Americans and Mexican-
Americans) from buying there.45 These actions directed African-Americans and Mexican-
Americans to settle in East Austin.
In 1931, the zoning regulations required industrial uses to be placed in East Austin, where the
workers lived. Placing residents near employment was a common planning principle of the time.
Residents in these non-white communities could either walk to their industrial jobs, or take a bus
to domestic jobs in West Austin. 46 This racial, ethnic, and industrial segregation was physically
reinforced when Austin was bisected by the construction of Interstate 35 in the 1950s, creating
both a physical and visual barrier between East and West Austin.
The Civil Rights Act of 1964 made such zoning and segregationist policies unenforceable.
Nevertheless, many of the same racial patterns that existed prior to 1964 remain in Austin today.
It is this history of racial segregation and past planning techniques that gave rise to today's
environmental justice issues in Austin. People-of-color neighborhoods continue to host
contaminated sites and sources of industrial pollution, just as they did prior to 1964.
Cumulative Zoning
While historic zoning practices created the base
for many other environmental justice problems,
such as unwanted land uses and disproportionate
pollution, Austin's move from cumulative
zoning to restrictive zoning was problematic.
Prior to 1986, the Austin planning ordinance
called for cumulative zoning. Cumulative
zoning allows any use "lower" than that defined
in the category to be built; the basic zoning
categories, ranked from highest to lowest use,
are industrial, commercial, and residential.
Under cumulative zoning, residential homes
could be built on land zoned industrial, but an
industrial facility could not be built on land
zoned residential.
Figure 6-2
Land Use Patterns Resulting From Cumulative
Zoning Ordinance in East Austin, Texas (1996)
Zoned Commercial:
20 percent used for commercial
15 percent used as single-family
18 percent vacant
Zoned Industrial:
32 percent used for industrial
12 percent as single-family
29 percent vacant
*Source: East Austin Land Use/Zoning Report.
February 20,1997
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In 1997, the East Austin Land Use/Zoning Report found:
The cumulative nature of the old zoning ordinance allowed residential develop-
ment in areas zoned for commercial and industrial uses. In some cases street
layout and orientation of lots also encouraged the confusion between residential
and non-residential uses. These and other factors led to a deterioration of
neighborhoods, which abutted the commercial and industrial districts. Residential
areas in the eastern portion [of East Austin] of the study are freely mixed with
large scale and industrial uses.48
Over the years, many homes were built in East Austin on property zoned commercial or industrial
(see Figure 6-2). After 1986, the city abandoned the cumulative zoning ordinance for a restrictive
zoning ordinance. Restrictive zoning allows for only the use as defined (i.e., only industrial uses
can be built on property zoned industrial, only commercial uses can be built on property zoned
commercial, etc.). When the zoning ordinance was changed, the cumulative designations became
restrictive designations, resulting in many properties where the current use and the zoning
designation were no longer compatible.
Changing the zoning ordinance from cumulative to restrictive negatively impacted some residents
of East Austin by restricting their access to home improvement equity loans. Some homeowners
in East Austin were unable to obtain these loans because their current, existing use of the property
(residential) was not consistent with the new local zoning ordinance (restrictive industrial).
Likewise, homeowners whose houses burned down could not rebuild because their properties
were now excluded from residential use. To resolve these problems, two local community groups,
PODER49 and El Pueblo,50 worked together to encourage the first "Green" City Council, headed
by Mayor Kirk Watson, to establish an East Austin Overlay area allowing the land to be rezoned
consistent with its existing use and to minimize incompatible uses:51
The East Austin overlay ordinance, approved in July 1997, requires LI [light
industrial], CS (commercial) and CS-1 (...liquor stores...) property owners to get a
conditional-use permit before they can develop or redevelop any of 14 different
types of uses, even though the zoning normally permits all. (A conditional-use
permit is generally required to do something that is not allowed by the zoning... .)52
However, some members of the East Austin community did not want to see their properties down-
zoned for a lower use. The city's legal department has received petitions from property owners
and community organizations to keep the current zoning status of specific properties.53 Some
residents want to keep their industrial status because they may have an existing, small industrial
use on the property, and others may believe that at a future date their property would be more
valued if zoned as industrial. In at least one instance, PODER researched comparative values and
found that, on a per square foot basis, a residential family unit was worth more than an industrial
unit. On a broader level, any new future industrial use would have to achieve specified setback
limits, and achieving such limits in a pre-existing, mixed-use neighborhood would be very
difficult.55
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Addressing Unwanted Land Uses
Strong community pressure and a responsive city government have worked together to address
many of the existing unwanted land uses in East Austin, although some solutions have not been
completely successful. Some recent examples follow.
• A fuel tank farm was closed. In 1993, community groups led by PODER and Travis County
successfully closed a 52-acre fuel storage tank area that encroached on East Austin.56 The
farm contained large above-ground tanks used by six oil companies, with some of the pipes
running under nearby houses. 57 Local residents believed they were experiencing chronic
illnesses due to toxics being emitted from the tank farm. In 1992, the Travis Central Appraisal
District reduced the value of about 600 adjacent homes by 50 percent or more, citing fears of
pollution.58 In 1993, environmental tests showed that the farm left contaminated groundwater
on the site.59 Since the tank farm closed, the property has been downzoned from light
industrial to community commercial-mixed-use-conditional60 while the city and residents
consider future uses and zoning patterns for the property.61
• Pollution from a power plant was mitigated, and the plant is slated to close. The Holly Street
Power Plant, a natural gas-fired plant built in East Austin in the 1950s, is owned and operated
by the city. In 1994, the Texas Department of Health (TDK) was contacted by East Austin
residents concerned about possible adverse health effects from living in close proximity to the
plant.62 TDH investigated the concerns and determined that there was no public health hazard;
but when evidence of noise pollution, short-term sulfur dioxide exposure, and polychlorinated
biphenyls was found, mitigation measures were instituted to reduce or eliminate them.
Recently, the City Council adopted an ordinance to close the Holly Street facility by 2009.64
• The municipal airport was moved, but noise still affects many residents. The Robert Mueller
Municipal Airport in East Austin brought noise and pollution from cargo planes and other
aircraft into East Austin. The city closed Mueller Airport and moved it to the former
Bergstrom Air Force Base south of town, reopening it as the Austin-Bergstrom International
Airport. This relocation has reduced the number of residents who live in the airport's noise
area from over 30,000 to approximately 1,500.65 However, the flight paths to the new airport
are substantially similar to those for the old Mueller Airport.66 Additionally, East Austin
roads are being used as a cut-through for vehicular traffic, despite the city's efforts to re-route
traffic for Austin-Bergstrom International Airport.67
Three years before the new airport opened for air cargo operations in 1997,68 the city enacted
compatibility zoning ordinances requiring that new noise sensitive land uses cannot be
established within the airport's noise impact area.69 Homeowners whose homes lie within the
"noise impact area" are now considered a non-compatible use and are restricted from building
new or expanding current "noise sensitive" land uses by the city's compatibility zoning
ordinance. These non-compatible land uses include residences and churches north of the
east and west runways. To PODER, the relocation of the Mueller Airport did not solve the
environmental justice problem: "it just moved it from a poor African-American community to
a poor Hispanic community."71
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• The city purchased and moved a recycling center. The city of Austin bought and moved
Browning Ferris Industries' recycling center to a location close to the Austin-Bergstrom
International Airport. The recycling center had been bringing extensive truck traffic, refuse,
and rats into East Austin.
• The city bought a distribution center for city functions and eliminated truck traffic. Austin
purchased a beer distribution center that brought heavy truck traffic into East Austin and
replaced the business with city functions for which it had been leasing space elsewhere. The
facility now houses a uniform shop for parks and recreation staff, storage for police evidence,
maintenance and repair equipment, a utility bill drop-off center, and community meeting
rooms.
• A highway will be lowered to remove a barrier between East and West Austin. Austin's
transportation department is planning to drop Interstate 35 below grade over the next ten years
to remove that physical barrier between East Austin and West Austin.
Unequal Protection of Communities
Most of Austin's environmental protection resources have been devoted to improvements on the
west side of the city, and have primarily been designed to protect the Edwards aquifer and
vulnerable wildlife species in the area. Protecting the Edwards aquifer is a high priority because it
is a source of drinking water for all of Austin. Thus, on the west side, the city government bought
large tracts of land, put easements on deeds, and re-sold the parcels to the original owners or to
land trusts in order to protect the aquifer and wildlife. Consequently, fewer funds were available
to reduce the pollution affecting people in East Austin.72
City Intervention in Longhorn Pipeline Case
On April 22, 1998, property owners joined the Barton Springs-Edwards Aquifer Conservation
District in filing suit under the National Environmental Policy Act of 1969™ (NEPA), seeking
injunctive relief requiring the federal government to perform a full review of the environmental
consequences of the Longhorn Pipeline project.74 The City of Austin and the Lower Colorado
River Authority were allowed to intervene as plaintiffs.
The pipeline was constructed in 1950s, running through East and West Austin shipping crude oil
until around 1995. The pipeline was purchased and extended in 1997 by a partnership of pipeline
and energy companies (Longhorn Partners L.P.) to ship gasoline from Houston to El Paso. The
reactivation of this pipeline was a concern for East Austin residents because proposed investments
in improvements and safety measures on the pipeline to protect of water resources and vulnerable
species in West Austin were not going to be mirrored with similar protections for the health and
safety of residents in East Austin.
The court found that the defendants—U.S. Department of Transportation (DOT), EPA, and U.S.
Department of the Army—had not fulfilled their obligations under NEPA. On March 1, 1999, the
parties entered into a stipulated settlement, in which EPA and DOT agreed to prepare an
environmental assessment of the pipeline. The environmental assessment was conducted,
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contested, and made final. The court then upheld the "Finding of No Significant Impact," relying
on certain mitigation measures to reduce environmental impacts. However, the portions of the
pipeline in West Austin are now receiving more upgrades, replacements, and security mitigation
measures than pipeline sections that run through East Austin.
New Pipeline Ordinance
In a broader effort to ensure public safety, on April 10, 2003, Austin's City Council adopted an
ordinance to limit new development around pipelines transporting hazardous materials, such as
the Longhorn Pipeline.77 Highlights of the ordinance include the following:
• A use requiring evacuation assistance [i.e. convalescent services, hospital, education
facilities, etc.] is prohibited within 500 feet of a hazardous pipeline.
• No one may build new construction within 200 feet of a hazardous pipeline.
• No structure can be built and no excavation can occur within a restricted pipeline area
(25 feet from a hazardous pipeline plus any area within a hazardous pipeline
easement).
• Proximity to a hazardous pipeline does not cause a structure or area to be non-
complying.
This city ordinance reflects a commitment to minimize future conflicts between incompatible uses
while protecting citizens from possible environmental hazards.
Concerns About High Technology Industry
Austin is fast becoming the second Silicon Valley, with many high technology firms firmly
established in Austin.78 While the city is concentrating on bringing less heavy industry into the
area by recruiting high technology firms, PODER is concerned about locating them in East
Austin. PODER contends that the limited number of jobs created by high technology companies
predominantly utilize highly skilled and well-educated employees, and do not provide
opportunities for those under-skilled East Austin residents who need employment.79 Also, they
argue that these industries are not really as low polluting as they claim to be, as evidenced by
* * &0
Toxics Release Inventory statistics.
While there is less concern about emissions from high technology industries as compared to
traditional heavy industries, there are strong concerns about high technology's use of water
resources:
By the time the high tech industry migrated to Austin.... the risks associated with
contamination of groundwater were already well known. Mechanisms to mitigate
this were put into place, though groundwater contamination is still occurring. The
greatest form of cost externalization related to water in these newer areas are much
more complex.... They come in the form of water price subsidies, water delivery
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and treatment infrastructure subsidies, and restricted access to traditional and low-
income water uses caused by the massive water use by this industry.81
In this case, it is clear that PODER's concerns over high technology in Austin have broad
environmental justice implications that affect local employment, local toxic pollution, and local
water availability.
Concerns About Gentrification
Gentrification in East Austin is being fueled by rising property taxes. Property values, as well as
property taxes, are being driven skyward by a very competitive housing market, limited
availability of land for development, and "historic" home tax exemptions. The demand for
housing continues to grow, as does the value of real estate in Austin. Smart growth planning in
Austin has restricted development in West Austin, while encouraging development in East Austin.
Finally, historic designations for homes entitle the owner to a lifetime exemption from property
taxes. The direct result of these economic forces is rising real estate values and rising property
taxes.83
Rising property taxes are a substantial burden for the low-income and people-of-color
communities in East Austin. Texas has no personal income tax. "State revenues come largely
from sales, excise, and property taxes—all of which weigh heavily on low-income people."84
Additionally, as a means to provide some economic relief, Austin cannot limit the upward value
or taxing of properties, as such actions are prohibited by Texas law.85 The result is East Austin
residents with low or fixed incomes, and an increasing number of people-of-color, are being
priced out of their neighborhoods.86
Community groups, such as PODER, have asked the city to impose a moratorium on new historic
designations pending further exploration of the unintended consequence. Meanwhile, the city has
convened a task force from the Community Development and Housing Department to investigate
gentrification issues in Austin.87
PLANNING, ZONING, AND GOVERNANCE IN TEXAS
Texas Planning and Zoning Laws
State Planning Laws
Although Texas did not adopt comprehensive planning regulations until 1997, the state has had
subdivision laws since the late 1920s.88 Municipal governing bodies may adopt comprehensive
plans for long-range development,89 define the relationship between comprehensive plans and
development regulations, and provide standards for consistency.90 If a comprehensive plan is
adopted, however, then municipal zoning regulations must be adopted in accordance with it/'
91
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Local comprehensive plans may include, but are not limited to, the following elements:
• Land use, transportation, and public facilities;
• Plan(s) organized by subject and geographic area; and
• Coordinate and guide the establishment of development regulations (concurrency).
Municipal plans do not require state approval and may be adopted or amended by ordinance,
following a public hearing and review by the local planning commission, if one exists. Thus,
the at-large Austin City Council has full responsibility for adopting and/or modifying Austin's
plan.
While they are not required to create them, counties have authority to adopt comprehensive plans
for certain areas.93 As with municipalities, county-zoning regulations must be adopted in
accordance with the county comprehensive plan. Authority to create county comprehensive
plans and zoning ordinances rests with the County Commissioner's Court.94 The County
Commissioner's Court is comprised of four commissioners and one county judge. "In addition to
assuring that county roads are maintained, commissioners vote with the county judge to set the
budget for all county departments and adopt a tax rate."
• State Guidelines and Incentives for Planning
Texas' Local Government Code addresses several aspects of planning. It authorizes planning for
housing and other structures, including authority to secure substandard buildings, preserve historic
buildings, adopt energy conservation measures, control rent, and adopt fair housing ordinances.
Municipal Urban Renewal provides for the improvement of slum or blighted areas.
Neighborhood Empowerment Zones may be created by municipal governing bodies to serve the
following purposes: create and rehabilitate affordable housing; increase economic development;
improve the quality of social services and education; or provide public safety to residents. In
addition, the North American Free Trade Agreement (NAFTA) Impact Zone promotes
opportunities for developers, local businesses, and residents of the zone and requires certain
businesses to hire NAFTA displaced workers." Austin has taken advantage of Municipal Urban
Renewal, but not of Neighborhood Empowerment Zones or NAFTA Impact Zones.
Various state agencies and departments offer incentives for local planning. Through local
enterprise zones, the Texas Department of Economic Development offers incentives for capital
improvement and job creation.1*1 The Office of Community and Rural Development offers grant
programs, such as the Colonia Planning Fund,102 to promote the development of viable
communities thorough affordable housing and increased economic opportunities for persons of
low to moderate income.103 Also, the Texas Historical Commission provides technical assistance
and preservation grant priority for localities participating in Commission programs, and Austin
has obtained technical assistance from the Texas Historical Commission.
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State Zoning Laws
Under state law, the governing body of a Texas municipality must establish procedures for
adopting, amending, and enforcing zoning regulations, after holding public hearings and providing
public notice in a local newspaper.1 Municipalities without a zoning commission must provide
notice to appropriate property owners. The municipal board of adjustment hears zoning
appeals. County zoning procedures are similar to those set forth for municipalities, although
counties may zone only in specific areas as allowed by the Local Government Code.108
• Municipal Management Districts
In Texas, municipal management districts are created to supplement the services provided by a
municipality. They provide funding for metropolitan areas to preserve, maintain, and enhance
economic health and vitality; assistance for public transport and pedestrian facilities; and help in
restoration, preservation and enhancement of scenic and aesthetic beauty.110 Provisions for
"disadvantaged businesses" are also included.111 Municipal management districts may be created
only in areas devoted to commercial development and business activity.112
Before municipal governments create such a district, they must petition the Texas Natural
1 1 ^
Resource Conservation Commission, and must also give public notice and hold a public
hearing. The Commission or municipal governing body then chooses a board of directors to
govern the district.115 Board members must have experience in one or more of the following
areas: energy matters, commercial banking, real estate development, finance and insurance
matters, retail services, and utilities.116
• Regional Planning Commissions
Any combination of counties and/or municipalities may agree to establish a regional planning
commission. The planning commission may develop regional planning recommendations, which
participating local governing bodies may adopt by ordinance.117 Where there is a regional
planning commission, it must advise the local governing body if a proposed project is regionally
significant118 and, if so, the commission will review the proposed project and determine if the
project conflicts with the regional plan or policy.119
Municipalities, counties, and other local governments in Texas may impose impact fees to finance
new capital improvements or public facility expansions.120 Within the North American Free
Trade Impact Zone or a Neighborhood Empowerment Zone, a municipality may waive or adopt
fees (including impact fees) related to the construction of buildings.121 No impact fees are
collected in Austin, because Austin does not currently participate in either program.1 2
See Appendix G for more details on planning requirements under Texas statutes.
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Local Governance in Austin
Structure
Austin has a council-manager form of government, with a mayor and six council members elected
at large. The City Council appoints the city manager and two assistant city managers, whose
responsibilities are divided according to departments.123
One distinguishing feature of Austin's government is its success in retaining management
personnel. Many department heads have worked in Austin's government for many years, serving
in various departments. This results in tremendous institutional knowledge in the city
government, and its managers have a broad cross-functional understanding of the city
government.
At-Large Election System
Austin is one of only a few large cities that still uses an at-large election system.124 PODER is
campaigning to remove the system and to replace it with one based on geographic representation.
They believe that the at-large elections make it very difficult for citizens to be fairly represented
on the City Council.125 This difficulty is well known:
The major characteristic of multi-member at-large elections, in contrast to single
member district elections, is that a spatially concentrated group of voters—
economic groups, party supporters, racial and ethnic groups—may not be able to
elect candidates of their choice because their votes are "swamped," "absorbed,"
"submerged," or "diluted"...by votes cast outside their area for competing
candidates. This major feature of at-large elections has long been recognized.126
Vision of Environmental Justice
The city of Austin has articulated a vision of environmental justice and is working toward
equitable service delivery. Each fiscal year, the City Council adopts a theme. Three years ago,
the city council adopted "Social Fabric" for its budget process, to focus the city government on
social equity and environmental justice. The theme for the 2002-2003 fiscal year is "Bridging the
Gap," addressing the city's budget deficit as well as the gap in the provision of services and
resource allocation among different socio-economic groups and neighborhoods.127
Austin Planning and Zoning
Austin Planning Commission
The Austin Planning Commission is composed of nine members appointed by the Austin City
Council, each serving two-year staggered terms. The Commission exists to:
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.. .make and amend a master plan, recommend approval or disapproval of proposed
zoning changes and control land subdivision within neighborhood planning areas
1 1 X
and submit, annually, a list of recommended capital improvements.
Environmental Board
Austin's Environmental Board was established by city ordinance to promote close cooperation
between the city, its citizens, and institutions and agencies interested in or conducting
environmental activities. The board advises the City Council, city manager, and planning and
watershed departments on all policies, projects, and programs affecting quality of life.
The City Council appoints the nine-member Board. Four members with expertise in geology,
hydrology, civil engineering, land planning, or ecology serve two-year staggered terms. The Board
reviews policy and decisions as they pertain to the environment and makes recommendations to the
Council. The Board appoints an environmental officer to investigate citizen complaints and to
report to the city manager and Council. Although the Board can make recommendations to the
1 OQ
Council, it does not have any implementation authority.
Austin Plans
• Comprehensive Plans
Austin developed a comprehensive plan in 1982, which tended to be very general and
concentrated heavily on watershed conservation and historic preservation. 13° City staff now
recognizes the need for more specific planning goals and standards. The plan did not include
111
zoning changes or recommendations for development. As a result, planning has been
decentralized over several departments, and each produces its own plan. They include the
Watershed Protection and Development Review Department's Watershed Protection Master Plan
plus the Transportation, Planning and Sustainability Department's Transportation Plan, Pedestrian
Plan, and Bicycle Plan. The Neighborhood Planning and Zoning Department also develops
separate neighborhood plans for each of the 54 neighborhoods in East and West Austin. These
plans are described in more detail below.
• Neighborhood Plans
To remedy existing zoning problems and to improve community outreach and communication,
Austin embarked on a program to develop neighborhood plans. The Neighborhood Planning and
Zoning Department identified 54 urban core neighborhoods, and the Department works with
residents on a zoning and development plan for each one. Plan development takes about a year,
with several plans underway at the same time. As of August 2002, the Department had finished
12 of 54 plans and was currently working on eight more. Each neighborhood plan represents
about 10,000 citizens. Of these, between 30 and 100 citizens are actively engaged in the planning
process. Transportation and design guidelines, future land use maps for planned growth, and
appropriate zoning are developed concurrently with neighborhood plans.132
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Additionally, local neighborhoods can organize and form neighborhood associations, which can
then register with the city. Registered associations within a specified radius of a property to be
rezoned must be notified by the city of the proposed change. Austin boasts over 300 such
organizations, and the number is expanding as PODER works to organize neighborhood
associations where none existed previously.
• Smart Growth
Austin's Smart Growth Initiative encourages downtown development and discourages recruitment
of more polluting industry. 133 Its goals are to:
• Determine how and where to grow by identifying a desired development zone and
drinking water protection zone;
• Improve quality of life by preserving and enhancing neighborhoods, protecting
environmental quality, improving accessibility and mobility, and strengthening our
economy; and
• Enhance the city's tax base through strategic investments, efficient use of public funds,
and regional partnerships.
The Smart Growth Matrix is a tool to assist the City Council in analyzing development proposals
within a particular development zone. The matrix measures how well a development project
meets Austin's smart growth goals regarding:
• Location of development;
• Proximity to mass transit;
• Urban design characteristics
• Compliance with nearby neighborhood plans;
• Increases in tax base; and
•
Other policy priorities.
134
Austin also uses several incentives— such as road construction and improvement and extension of
utilities — to attract business, as do many other cities. However, unlike most cities, Austin is
adamant about not offering tax abatements.135
Zoning Changes in Austin
Austin originally developed zoning regulations in 1936, revised them in 1953, and removed
gender-specific references in 1985. In 1986, Austin amended its zoning laws to eliminate
cumulative zoning. All of the municipal laws pertaining to comprehensive planning and the land
development process, including zoning regulations, were rearranged and re-numbered to create
the Land Development Code of the City of Austin of 1994. The Land Development Code
purports to achieve "reverence to the dignity and enrichment of all people . . .[and] to assure
economic, environmental, and cultural prosperity throughout our community."136
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• Impetus for Zoning Reforms
1 ^7
In 1995, Austin officials received the Citizen's Planning Committee Report. The report
explained how status quo planning would affect the long-term growth of Austin. The Committee
rejected existing planning efforts, and offered 12 recommendations, along with multiple
implementation actions, as essential parts of a comprehensive strategy "to introduce a different
way of looking at the city, its form, and the forces that shape it." In April 1996, the Committee
issued a second report, From Chaos to Common Ground: A Blueprint for Austin. The report
reiterated the previous 12 recommendations and proposed "dozens of detailed actions for re-
engineering the city's development and planning process to inject more predictability,
accountability, and local responsibility for future projects."
In 1996, the City Council directed planners to conduct a study of land use patterns in East Austin,
"noting the present zoning of all land parcels within the area and the location, size, and ownership
of the property zoned."139 The study revealed that:
Over-zoning affects a majority of the East Austin community, but each area has
been affected in different ways....140 Significant portions of the study area can be
characterized as industrial and residential decline. Little new construction has
occurred for any major land use category over the last five years. Earlier efforts
attempted to eliminate perceived conflicts in land use by promoting industrial
activity along the Southern Pacific Railroad at the expense of adjacent
neighborhoods.141
Many changes in the industrial zoning of East Austin have resulted from that study. Instead of
changing all of the zoning at one time, however, the city has tried to rezone and implement land
use plans on a neighborhood-by-neighborhood basis. Current industrial uses are grandfathered in
with limits on expansion, and zoning is changed with plan approval. When new plans are made,
zoning is adopted at the same time, because the plan is not enforceable without a corresponding
• j- 142
zoning ordinance.
• East Austin Overlay District
In 1997, the city created the East Austin Overlay District. In the overlay district, a new use that is
more intense than commercial use requires a special use permit and extensive notification of local
residents. When current industrial owners leave, the zoning is changed to a less intense use
through a City Council ordinance. Additionally, the City Council placed a temporary moratorium
on permitting in the overlay area. As each neighborhood plan is approved by the City Council,
that neighborhood is removed from the overlay area because the requisite zoning changes have
been made. PODER argues that certain aspects of the overlay requirements should stay in place,
even after the neighborhood plan is finished—such the requirement that city planners must notify
residents of any proposed new use-to keep the community informed about local development.
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Sustainable Communities Initiative
Austin's Sustainable Communities Initiative was created in 1996 to achieve economic prosperity,
social justice, and ecological health. Programs and policies are designed to make the city more
sustainable and livable over the long term. Activities have included conducting sustainability
workshops for city staff, sponsoring community workshops and seminars, initiating a pilot
sustainability assessment of city departments, and participating in green economic development
efforts.144
Smart Housing
Austin's Neighborhood Housing and Community Development Office and the Austin Housing
Finance Corporation oversees the "Safe, Mixed-income, Accessible, Reasonably-priced, Transit-
oriented" (SMART) housing program to develop better housing for Austin's low and moderate
income population. The program assists developers who include subsidized housing in their
developments by offering fee waivers, expedited permitting, and zoning changes where needed.
According to city staff, developers have been willing to comply with SMART housing standards
to take advantage of these incentives. When the program began, the city had hoped to add 600
new affordable housing units per year; but the program has been so successful that, in the first
year, 6,000 new units were in the review or inspection process.145
Recently, the City Council allocated an additional $3 million for acquiring property to be set aside
for future SMART housing construction.146 This allows the city to acquire land before
developers are ready to begin building housing, whereas housing construction must begin
immediately with any land purchased using U.S. Housing and Urban Development funds. The
city is also aggressively working to develop affordable housing with several nonprofit
organizations. Some of these partners include the Community Development Corporation, Habitat
for Humanity, American Youth Works, Community Partners, Volunteers for America, and
Foundations Communities. Since April 2000, the Austin Neighborhood Housing and Community
Development Office has offered a $1 million annual Housing Trust Fund to provide gap financing
for developers who construct new multi-family housing that serves families at or below 50 percent
of the median family income. The Department also completes impact statements assessing any
new regulation's impact on affordable housing so they can stop any provision that will have a
negative impact.147
ENVIRONMENTAL PERMITTING
Local Permitting Agencies
The city of Austin does not have authority to issue pollution control permits; that authority rests
with the Texas Commission on Environmental Quality. However, Austin does have authority over
local land use decisions and building permits.
Approval of building permits in Austin requires, among other things, compliance with zoning and
neighborhood plans as well as compliance with utility and site plans. The application must:
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• Demonstrate compliance with zoning requirements;
• Contain a utility plan review to assure appropriate access to utilities, etc.; and
• Contain a site plan for any building or improvement greater than 999 square feet,
including impervious surfaces, which is checked against neighborhood plans for
compliance.
State Permitting Agencies
The Texas Commission on Environmental Quality (TCEQ) administers pollution control
programs and issues pollution control permits in the State of Texas.148 TCEQ officials do not
believe the agency has the legal authority to consider environmental justice when reviewing
permit applications.149 Additionally, TCEQ is not involved in environmental justice issues related
to planning and zoning at the local level. Within TCEQ, the Environmental Equity Program and
the Office of the Public Interest Counsel offer the best opportunities to vet claims of
environmental inequity.
Environmental Equity Program
In 1993, TCEQ's Office of Public Assistance established the Environmental Equity Program for
the purpose of helping to avoid the development of hostilities between industry and/or facilities
and people in "low-income and minority communities [who] often believe that they are burdened
with a disproportionate share of environmental risks."150 The program concentrates on fostering
communication and effective dialogue between industry, a specific facility, TCEQ, and the
affected community.
Office of the Public Interest Counsel
The Office of the Public Interest Counsel is an independent program within the TCEQ; the
Counsel does not report directly to TCEQ's Executive Director. The Texas Legislature created
this Office to "...ensure that the Commission promotes the public's interests and is responsive to
citizens' concerns regarding environmental quality and consumer protection."
The Public Interest Counsel has a full-time, permanent staff that is hired by TCEQ. The Office
assists citizens by providing technical and legal explanations covering the TCEQ's procedures,
state law, and public participation procedures. The Counsel cannot provide legal representation to
individuals but is party to, and may comment on, all TCEQ proceedings, including rulemaking
and permitting. Given the breadth of its responsibilities, the Counsel sets priorities for its
caseload, giving particular priority to protection of public participation procedures.
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ANALYSIS AND RECOMMENDATIONS
Leadership and Accountability
Action by the city of Austin is still driven by community pressure. The presence of organized
community pressure, exemplified by PODER, has been a key factor in getting some
environmental justice problems in Austin resolved, such as the tank farm, the power plant, and the
recycling center.
The city has shown leadership on environmental justice with regard to some of its planning
processes. Over the last ten years, Austin has actively investigated and reviewed its planning
goals and initiatives.153 The city has pressed ahead to prepare neighborhood plans with active
community involvement and is investigating gentrification in East Austin. Most importantly, the
city agrees there are valid environmental justice concerns that need to be addressed. However,
there appears to be no mechanisms for holding city planning or zoning officials accountable for
progress.
Permitting and Zoning
Austin's permitting process and development fees can be simplified and reduced by participating
in a city-sponsored program that supports environmental justice, such as the SMART housing
program.
However, the success of many of the city's planning programs will be constrained by Austin's
ability to enforce existing regulations. Due to the cumbersome and expensive nature of permit
applications, citizens often choose not to apply for the proper permits.154
Lastly, officials in TCEQ and Austin apparently do not communicate effectively regarding their
separate duties (siting, pollution permitting) where they overlap, namely with regard to the
protection of public health and welfare.
Setting Priorities and Reducing Risk
Austin does not appear to have a priority list for reducing risks to public health or the
environment. The city has set a strong priority for protecting the drinking water supply, but this
commitment does not seem to extend to issues beyond drinking water. Overall, risk reductions
have occurred throughout East Austin, as evidenced by the relocation of the airport and recycling
station and closing of the tank farm. However, the city took these actions in response to
community pressure; they were not initiated on the basis of an overall plan to reduce risks, starting
with the most serious risks first. Finally, the city's lack of an active relationship with the Texas
Commission on Environmental Quality means there may be lost opportunities for cooperating to
control future pollution sources.
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Public Participation
The citizenry of Austin is very active and drives change in the city's operations. The East Austin
Overlay District requires more extensive neighborhood notice of proposed zoning changes than
are required in other areas of the city. Additionally, registering neighborhood associations
empowers local neighborhoods in the planning and zoning process.
The city offered a program, the Neighborhood Academy, "to provide education to citizens and
neighborhood groups that they can be more knowledgeable of city services and other factors
affecting the quality of life in their neighborhoods."15 A sample of the free courses included
"Zoning 101," "How to Get Complaints Resolved;" "Effectively Representing Your
Neighborhood before [City] Council and [Texas] Commission [on Environmental Quality]."
Unfortunately, this innovative program has recently been cancelled due to budget constraints.156
Austin also has an extensive website where meetings are announced; meeting agendas and
minutes are posted; and city publications, city ordinances, and other information is readily
available. This is a great source for citizens who have Internet access. Nevertheless, regular City
Council meetings last an entire day. Although the long sessions may allow more time for
discussion of issues, it can be difficult for working people to attend the meetings.
RECOMMENDATIONS
• Austin has made commendable progress in addressing some environmental justice issues.
However, the city needs a clearly articulated policy, program, and priorities for addressing
environmental justice problems to ensure that, in the future, no group of citizens has to
bear a disproportionate share of environmental burdens and that all citizens will have
opportunities to be meaningfully involved in decisions that affect their environment and
health.
• TCEQ should look broadly at its existing legal authorities for addressing environmental
justice concerns, including those related to environmental permitting. TCEQ's
environmental justice program should include commitments to reduce risk, improve
communication, and provide greater public access to information. TCEQ should consider
working with other state environmental agencies that have developed environmental
justice programs and tools so it can benefit from their successful experiences.
• TCEQ should also provide guidance and other assistance to local Texas governments to
help them understand and address the potential public health and environmental
implications of their land use decisions.
Ill
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ENDNOTES
1 Citizens' Planning Committee, "Citizens'Planning Committee Report" (Austin City Council, January 19, 1995).
Available at (visited May 2003).
2 Ibid. ,1.
3 Ibid., 19.
4 Ibid., 21.
5 Ibid.
6 Austin City Connection, "Demographics with Census 2000 Data, Maps and Analysis," website,
(visited May 2003).
7 U.S. Census Bureau, "American Fact Finder," website,
(visited May 2003).
8 Stuart Hersh, Development Services Manager, City of Austin, Interview (August 15,2002).
9 U.S. Census Bureau, "American Fact Finder."
10Austin City Connection, City of Austin—Austin's Major Employers in 2000, The Top 40 (July 2000), website,
(visited May 2003).
11 U.S. Census Bureau, "American Fact Finder."
12 Stuart Hersh, Interview.
13 U.S. Census Bureau, "American Fact Finder."
14 Alice Glasco, Director, Neighborhood Planning and Zoning Department; Ricardo Soliz, Manager, Neighborhood
Planning Program; and Greg Guernsey, Manager, Zoning Changes, City of Austin, Interviews (August 15, 2002).
15 U.S. Census Bureau, "American Fact Finder."
16 Ibid
17 Ibid.
18 Ibid.
19 Ibid
20 U.S. Environmental Protection Agency (EPA), "Brownfields Cleanup Revolving Loan Fund Pilot Fact Sheet,"
website, (visited May 2003).
21 Ibid.
John Blunt, Brett Walker, and Christopher Frye, City of Austin Planning Project, (Community and Regional
Planning Program, University of Texas at Austin, February 2002). Available at
(visited May, 2003).
Ibid.
Ibid
23
24
25 Ibid.
26 Mike Heitz, Director of Watershed Protection and Development, City of Austin, Interview (August 15, 2002).
See also, Austin City Connection," City of Austin—Watershed Master Plan," website,
(visited April 2003).
Alice Glasco, Ricardo Soliz, and Greg Guernsey, Interviews.
28 The area measured is the Austin-San Marcos Metropolitan Statistical Area which includes Bastrop. Caldwell,
Hays, Travis, and Williamson counties. Community Action Network (CAN), Prescription for Wellness: Physical
Health, Mental Health, Substance Abuse, 34 (April 2001). Available at
(visited June 2003).
29 Community Action Network (CAN), Prescription for Wellness: Physical Health, Mental Health, Substance
Abuse, Executive Summary, 1, (April 2001). Available at
(visited June 2003).
30 Ibid
31 People Organized in Defense of Earth and her Resources (PODER), "[About] People Organized in Defense of
Earth and her Resources, " website (visited March 2003, unavailable July 2003).
32 Ibid.
33 Details about the tank farm and the Holly Street power plant are discussed hi the section on "Addressing
Unwanted Land Uses."
34 Community Action Network (CAN) is composed of 14 major community organizations. For more information
see the organization's website, (visited July 2003).
35 CAN, Prescription for Wellness: Physical Health, Mental Health, Substance Abuse, Executive Summary.
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36
Ibid, Chapter II, 1.
37 Ibid., Executive Summary, 1.
38 Ibid., Chapter VI, 31-37.
39 The City of Austin/Travis County Health department is a combined department. The City of Austin actually
provides the function on behalf of the Travis County. Trish Young, Chief Executive Officer, Austin/Travis County
Community Health Centers, E-mail (May 16, 2003).
40 Ibid.
41 Trish Young, E-mail.
42 Stuart Hersh, Interview.
"This plan began the segregation of three ethnic groups; Chalmers Court for Anglos, Rosewood for African
Americans and Santa Rita Courts for Mexican Americans." Susana Almanza., "Racism in Austin " (Austin
Chamber of Commerce, October 1993).
45 Stuart Hersh, Interview.
46 Ibid.
47 Ibid.
48 City of Austin, Planning, Environmental and Conservation Services Department, East Austin Land Use/Zoning
Report (February 20, 1997). Available at (visited July 2003).
"People Organized in Defense of Earth and her Resources (PODER), whose name means "power" in Spanish.
The organization was formed in 1991 by a group of East Austin Latino activists and community leaders, after a
national meeting with SEMATECH, a non-profit research consortium funded by the U.S. government and the
superconductor industry. Local participants attending this meeting organized to address the social, economic and
environmental impacts and health hazards of industries on communities of color in East Austin." PODER, "People
Organized in Defense of Earth and her Resources."
50E1 Pueblo is a network of East Austin neighborhood groups. Leadership for a Changing World, "2002 Award
Recipients: People Organized in Defense of Earth and her Resources (PODER), Austin, TX" (2002). Available at
(visited March 2003).
51 PODER, "Accomplishments., " website, (visited March 2003, unavailable July 2003), and Susana Almanza,
Executive Director, PODER, Interview (April 23, 2003)..
52 Mike Clark Madison, "East Austin is Fighting Its Way Out of Industrial Zone Heavy Mettle," Austin Chronicle,
(March 1999). Available at (visited July, 2003).
Mitzi Cotton, Attorney, Law Department, City of Austin, and Marty Terry, Attorney, Law Department, City of
Austin, Interviews (August 16, 2002).
54 Susana Almanza, Interview (April 23, 2003).
"Because so much of the LI property is actually used for housing, any adjacent industrial project now has to
conform to city compatibility standards, which dictate setbacks and buffers so wide as to make many such lots
impossible to develop as anything but housing," Madison, "East Austin is Fighting Its Way Out of Industrial Zone
Heavy Mettle."
56 Susana Almanza, Interview (April 23, 2003).
57 Lisa Gordon, Assistant City Manager, City of Austin, Interview (August 16, 2002).
58 Susana Almanza, Interview (April 23, 2003).
59"A 1993 study conducted for [Travis County Attorney Ken] Oden found contamination in 71 of 1 1 6 water wells
tested in the area. One had 7, 1 00 times the federally defined safe level of benzene, a chemical in gasoline . . . .Toxic
and carcinogenic chemicals migrated underground from the tank farm property to surrounding residential areas. . . ."
Mike Todd, "Oil Companies Go On Trial; Austin Residents Blame Gasoline Tank Farm for Lower Property Values,
Health Problems," Austin American-Statesman, R\ (January 21, 1996).
60 Lauri Apple, "Visualize Whirled Tank Farms," Austin Chronicle, (June 7, 2002). Available at
(visited April 2003).
61 Susana Almanza, Interview (April 23, 2003).
62 Texas Department of Health, "Environmental Health Issues Near Power Plant," Epidemiology in Texas 1999
Annual Report (1999). Available at (visited
July 2003).
Based on the finding of the report, the power plant switched to low sulfur oil, a power line was moved, noise
abatement materials were installed, and additional fire and spill response measures were implemented. Texas
Department of Health, "Environmental Health Issues Near Power Plant."
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64 Susana Almanza, Interview (April 23, 2003).
65 Austin City Connection, "ABIA (Austin-Bergstrom International Airport) Environmental Initiatives" (March
1998), website, (visited July 2003).
66 Susana Almanza, Interview (April 23, 2003).
"Ibid
68 The rezoning initiatives occurred in 1994. Austin City Connection, "Milestones for Austin-Bergstrom
International Airport," website, (visited July, 2003).
69 Austin City Connection, "ABIA Environmental Initiatives."
70 Susana ALmanza, Interview (April 23, 2003).
71 Ibid
72 Alice Glasco, Ricardo Soliz, and Greg Guernsey, Interviews.
73 42 U.S.C. Sections 4321-4370d.
74 Spttler v. Walker, 2002 LEXIS 13194 (W.D. Tx July 19,2002).
75 Susanna Almanza, Interview (August 15,2003).
16 Ibid.
77 Ordinance No. 030410-12. Austin City Code (adopted April 10, 2003). Available at
(visited July 2003).
78 Austin is home to Dell, IBM, Motorola, Advanced Micro Devices, Applied Materials, Texas Instruments and two
major computer industry consortiums: the Microelectronics and Computer Technology Consortium and
SEMATECH. In all "more than 350 software companies make their home in Austin. IC2 Institute of the University
ofTexas, The Greater Austin Software Industry Report (1993).
Available at (visited July, 2003).
79 Southwest Network for Environmental and Economic Justice and Campaign for Responsible Technology, Sacred
Waters: The Life-Blood of Mother Earth (el agua es de todos): Four Case Studies of High-Tech Water Exploitation
and Corporate Welfare in the Southwest (1997). Summary available at
(visited June 6, 2003).
80 "According to the EPA's Toxic Release Inventory for 1989, Austin's high-tech industry legally emitted over
730,000 pounds of toxics into the environment, about a ton of toxics per day. Almost 216,000 pounds of waste were
disposed of by underground injection.... Over five hundred thousand pounds of toxics were disposed of into the air,"
Sacred Waters, 97.
81 Ibid., 15.
82 Neil Carlson, "What Happens When a Neighborhood Starts to Sell Its Soul?" Ford Foundation Report (Spring
2003).
83 PODER, "Neighborhood Groups to Protest Heritage Homes Tour 2002," Press Release (May 2002).
84 Ibid.
85 Mitzi Cotton and Marty Terry, Interviews.
86 Susana Almanza, Interview (April 23, 2003).
87 Stuart Hersh, Interview.
88 American Planning Association, "Planning for Smart Growth: 2002 State of States - Texas " (2002). Available
at (visited July 2003).
89 Local Government Code (LGC), Title 7, Chapter 213.002.
90 The "Home Rule Provision" of the Texas Constitution, Article 11, Section 5, allows cities to enact and amend
ordinances as long as they do not conflict with the state constitution or other state laws.
91 LGC, Title 7, Chapter 211.004, and Title 12, Chapter 371.042-.043. If adjacent municipalities have zoning
commissions and exercise zoning authority, these municipalities may form a joint planning commission, adopted by
participating local governments. The commission would have representatives from each municipality and must
complete a master plan with stipulated elements.
92 Title 7, Chapter 213.003. A municipality may also enact by charter or ordinance a procedure for adopting and
amending a comprehensive plan.
93 Title 7, Chapter 231. See Also, Chapters 232 and 242 on the subdivision powers of a county.
94 Title 7, Chapter 231.
95 "Among other responsibilities, the commissioners court: sets the yearly property tax rate and approves the budget
and employment level for the county; establishes long-range thoroughfare, open space, land use, financial and law
enforcement/jail needs plans; acquires property for rights-of-way or other uses determined to be in the public's best
interest; reviews and approve subdivision platting and wastewater treatment for rural areas; and fills vacancies in
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elective and appointive positions." Texas Association of Counties, 'TAC: About Counties—County Offical
Information—County Commissioner," website, (visited
July, 2003)."
96 Title 7, Chapter 214; Title 9, Chapter 302; Title 9, Chapter 318.
97 Title 12, Chapter 374 and Chapter 375.001 (a) (3).
98 Title 12, Chapter 378.
99 Title 12, Chapter 379.005.
100 Stuart Hersh, E-mail (May 5,2003).
101 Texas Department of Economic Development, "Texas Enterprise Zone—Texas Economic Development,"
website, (visited July 2003).
102Office of Rural Community Affairs, "Texas Community Development Program (TCDP) Application Guide for
the Colonia Planning Fund," website, (visited July, 2003).
Ibid.
For more information, see the Texas Historical Commission website. Available at
(visited June 30,2003).
105 Alice Glasco, Director, Neighborhood Planning and Zoning Department, City of Austin, E-Mails. (May 2003).
106 Title 7, Chapter 211.006, 211.006 (b) and211.007(c).
i07Title7,Chapter211.008.
108 Title 7, Chapter 231. See also, Chapters 232 and 242 for further discussion of the subdivision powers of a county
that, in some ways, seem similar to traditional "zoning" powers; note extraterritorial jurisdiction, unincorporated
municipalities, and the Interlocal Act.
109 Title 12, Chapter 375.001(a) thru (1).
Title 12, Chapter 375.001 (i) and (j); Impact fees in relation to improvements, including transportation may be
imposed; municipalities and counties are exempt unless such fees have been adopted by the particular governmental
entity.
111 Title 12, Chapter 375.003 (4).
112 Title 12, Chapter 375.021.
113 Title 12, Chapter 375.003 (3) and 375.002. On September 1, 2002, the Texas Natural Resource Commission or
Texas Natural Resource Conservation Commission was renamed the Texas Commission on Environmental Quality
(TCEQ) (see ). TCEQ provides technical assistance to local
governments related to permits and environmental issues.
Title 12, Chapter 375.022. Petitions must include signatures of the owners of a majority of the assessed real
property value in the proposed district or the signature of 50 persons who own property in the district.
115 Title 12. Chapter 375.375.064 (f).
116 Title 12, Chapter 375.064 (f).
117 Title 12, Chapter 391.004.
118 Title 12, Chapter 391.008 (c).
119 Title 12, Chapter 391.008 (d).
120 Title 12, Chapter 395.
121 Title 12, Chapter 379.004 and 378.004, respectively.
122 Stuart Hersh, E-mail.
123 Alice Glasco, Interview (July 5,2002).
124 Susana Almanza, Interview (April 23,2003).
125 Ibid
Howard A. Scarrow, The Impact of 'At-Large Elections: Vote Dilution, Choice Dilution, and the Voting Rights
Act (Department of Political Science SUNY at Stony Brook, 1999).
127 Alice Glasco, Ricardo Soliz, and Greg Guernsey, Interviews.
Austin City Connection, "Boards & Commissions-Environmental Board," website,
(visited July, 2003).
Alice Glasco, Ricardo Soliz, and Greg Guernsey, Interviews (August 15,2002).
mlbid
132 Ibid
133 Austin City Connection, "Smart Growth Homepage," website,
(visited June 2003).
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134 Ibid
135 Alice Glasco, Ricardo Soliz, and Greg Guernsey, Interviews (August 15, 2002).
136
Austin City Charter, Preamble. Available at http://www.ci.austin.tx.us/law/.
137 Austin City Council , Citizens' Planning Committee, Citizen 's Planning Committee Report (January 1995).
138 Austin City Council , Citizens' Planning Committee, From Chaos to Common Ground: A Blueprint for Austin
(April 1996).
139 City of Austin, Planning, Environmental and Conservation Services Department, East Austin Land Use/Zoning
Report (February 20, 1997). Available at (visited July 2003).
140 Ibid
142 Austin City Connection, "Zoninginfbl," website, (visited
July 2003).
143 Susana Almanza, Interview (April 23, 003).
144 Austin City Connection, "City of Austin-Sustainable Communities Initiative," website,
(visited June 2003).
145 Austin City Connection, "Austin Housing Finance Corporation, " website,
(Retrieved June 30, 2003).
146 Stuart Hersh, Interview.
147 Ibid.
148 "On September 1, 2002, the Texas Natural Resource Conservation Commissions became the Texas Commission
on Environmental Quality." TCEQ, "TNRCC is Now TCEQ," website,
(visited June 2003).
149 Jim Fernandez, Office of Environmental Equity, Office of Public Assistance, TCEQ, Interview (April 2003).
150 TCEQ, "Office of Public Interest Counsel," website,
(visited June 2003).
151 Ibid.
152 Bias Coy, Public Interest Counsel, TCEQ , Interview (April 2003).
153 The Citizen's Planning Committee has published three reports including Citizen's Planning Committee Report -
1995, From Chaos to Common Ground: A Blueprint for Austin (1996), and The Challenge for Austin's Future
(1997). Also in 1997, the Planning, Environmental, and Conservation Services Department issued ,4 Tale of Two
Cities: Directions for the Future of Austin. Available at (visited July
2003).
154 Stuart Hersh, Interview. See also, Citizens Planning Committee, From Chaos to Common Ground.
155 Neighborhood Planning and Zoning Department, "Neighborhood Academy" website,
(visited June 2003).
156 Alice Glasco, E-mail (May 6, 2003).
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CHAPTER SEVEN
CHESTER, PENNSYLVANIA
FINDINGS
Finding 1: Chester is attempting to prevent future environmental justice situations through more
effective land use planning. The city has enacted new zoning ordinances and land use
performance standards designed to ensure that new development does not exacerbate existing
environmental problems; has adopted a comprehensive land use plan with a positive vision of
future economic development; and is courting new, less polluting, economic development
consistent with the plan.
Finding 2: Chester has not yet tackled the environmental justice issues associated with existing
land uses, including inhabited but depressed housing stock located in close proximity to older
industrial facilities that have toxic emissions.
Finding 3: In response to community pressure, Chester has adopted city ordinances limiting
development of new heavy industrial facilities and performance standards designed to minimize
environmental impacts; but the city's attempt to control where certain types of facilities are sited
is severely limited by lack of enforcement.
Finding 4: Chester's plan for economic development, including desired land uses, does not
articulate goals for reducing pollution, achieving environmental justice, or reducing risks, except
for lead exposures.
Finding 5: The 2000 amendments to Pennsylvania's Municipalities Planning Code direct state
agencies to consider local land use plans or ordinances when reviewing applications for permits
or funding and are potentially important mechanisms for addressing environmental justice issues.
Finding 6: Chester lacks a formal process for addressing or tracking citizen concerns about
environmental or public health hazards, and has no staff specifically assigned to oversee the
environmental health of the community or pollution control efforts. Lack of staffing in these
areas limits Chester's ability to respond to residents' complaints about environmental justice
problems.
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INTRODUCTION
The city of Chester occupies 4.7 square miles of Delaware County in southeastern Pennsylvania.
Once a booming industrial center, Chester has experienced strong shifts in its economy and its
population over the past 40 years.
In the late 1980s and early 1990s, several waste treatment facilities were located in the city; and
Chester's economy continued to falter. Over a period often years, the Pennsylvania Department
of Environmental Protection (PADEP) approved permits for five facilities in a single census tract
of Chester where the population was 73.9 percent African American and 22.8 percent white.1
During that period, African-American residents of Chester began organizing to fight the
increasing number of waste facilities being permitted in their neighborhood. They filed a racial
discrimination case under Title VI of the Civil Rights Act of 1964, bringing national attention to
environmental problems in Chester.
Today, Chester is a city on the rebound, with a new strategic development plan, Vision 2000, and
over $500 million in new investments. The city is moving forward to revive its economy and to
make Chester a desirable place to live and work. When considering possible new development,
city planners are aware that once a facility or land use is located in a community, it is hard to
remove it. Therefore, the intent of Chester's plan is to prevent environmental justice problems in
the future; and the city is trying not to exacerbate existing problems. Yet, it is unclear how
Chester will be held accountable for this goal. Further, in Chester neighborhoods still close to
heavy industrial uses, citizens wonder when and how they might obtain relief from pollution,
noise, traffic, and odor problems.
BACKGROUND
About Chester
Chester is located on the Delaware River, across from New
Jersey and near the Delaware border. It sits eight miles from
Wilmington, 16 miles from Philadelphia, and within 120
miles of both New York City and Washington D.C.2 Chester
is accessible to multiple major transportation arteries,
including 1-95, 1-476, and linkages to the New Jersey and
Pennsylvania Turnpikes.3 The city also has three active rail
lines—CSX/Conrail for freight and Amtrak and SEPTA for
passengers4—and has access to international airports and
shipping.5 In short, Chester is ideally located to be a major
East Coast transportation hub.
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History
Chester first developed as a major industrial center, producing ships, engines, tools, textiles,
paper, steel, and petroleum products among others.6 Chester's industrial/manufacturing
economy is historical; the city hosted five shipyards as early as 1886. This industrial tradition
and Chester's growth continued through the twentieth century, as the city experienced a strong
in-migration to support the production needs of World War I and World War II. Manufacturing
became so vital to Chester that it is reflected in its city motto: "What Chester Makes Makes
Chester."7
The city's population peaked in the 1950s at 66,039 people.8 With changes in production
technology and strong international competition, many of Chester's major industrial facilities
were too old to compete, so they closed or the companies moved elsewhere. Since then, the out-
migration of industry, jobs, and residents has been constant, as major employers—like Ford
Motor Company and Pennsylvania Shipbuilding—permanently closed their plants. The local
economy collapsed when 32 percent of the jobs in Chester disappeared between 1950 and 1980.9
The loss of industry and jobs resulted in a population decline from 66,000 to 42,000 people
between 1950 and 1990.10
Figure 7-1 Chester, Pennsylvania—Demographics
Moreover, the ethnic composition of Chester's population has changed substantially since the
1950s. From 1960 to 1990, the city lost 69 percent of its white population, while people-of-color
residents increased by 26 percent, resulting in a net population loss.11 The extensive population
flight depressed retail trade, so downtown stores and shops closed,12 compounding the already
poor job market in the city.13 Additionally, this "demographic shift is indicative of massive
white flight in the face of racial
blockbusting by real estate
speculators—a practice banned
in 1968, days after the
assassination of Martin Luther
King, Jr."14 There were few job
opportunities and fewer people
to support the city's already
weakened economy.
Size:
Location:
Total Population:
Race and Ethnicity*:
African-American:
White:
Hispanic:
"some other race":
Unemployment Rate:
Median Household Income:
Individuals Below the Poverty Level:
High School Graduate or Higher:
4.77 square miles
Delaware County, PA
36,854
75.7 percent
18.9 percent
5.4 percent
3.0 percent
9.9 percent
$25,703
27.2 percent
68.7 percent
Total does not add up to 100 percent because some individuals specified more than
one race.
Source: U.S. Census Bureau, Census 2000
The economic and social health
of Chester has suffered over the
last four decades. Based on the
2000 Census, the current
population is 36,854 residents.
They are 75.7 percent African-
American, 18.9 percent white,
and 5.4 percent Hispanic. The median family income is $25,703, and the city has a 9.9 percent
unemployment rate.15
The largest private sectors in Chester, by U.S. Census class, include: education, health and social
services (33 percent);16 manufacturing (12 percent), retail trade (10 percent); and arts,
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17
entertainment, recreation, accommodation and food services (10 percent). Of Chester residents
over the age of 25, 31 percent did not complete high school; and 69 percent have a high school
diploma or equivalent. While about 29 percent of adults over 25 have attended at least some
college, only 12 percent have earned associate, bachelors, or advanced degrees.
ENVIRONMENTAL JUSTICE CONCERNS
Siting of Waste Treatment Facilities
Figure 6- 2.
Chester Waste Treatment Facilities
From 1987 to 1996, the Pennsylvania Department of
Environmental Protection granted seven waste-facility permits.
Five permits were issued in Chester allowing for over two million
tons per year of wastes to be processed, while only two waste
permits were issued in Delaware County, allowing for a total of
1,400 tons per year. *
1987
1988
1989
1993
1995
LCA Leasing transfer station
PADEP, sited by Chester
permitted by
On the heels of the massive out-
migration of residents and industries,
Chester became the location for
waste disposal facilities. Between
1986 and 1997, the city of Chester
approved four of these facilities; and
the Pennsylvania Department of
Environmental Protection permitted
all five of the commercial waste
handling facilities in a single census
tract inside the city limits (see
Figure 6-2). The facilities included a
waste transfer station, a waste
incinerator, a concrete and
construction waste recycling
business, and an infectious wastes
autoclave.1
The impact on Chester
neighborhoods was significant. The
waste treatment facilities were
located as close as 100 feet from
more than 200 residential
properties,20 and the majority of the
wastes were trucked into Chester
from elsewhere.21 Residents com-
plained that the transportation of
waste for the incinerators and sewage treatment plants subjected Chester's neighborhoods to
litter, rats, odors, and prostitutes—who serviced the truck drivers.22
Chester Residents Concerned for Quality Living
In 1993, residents of Chester organized Chester Residents Concerned for Quality Living
(CRCQL, pronounced "circle") to stop waste facilities from being sited and approved in Chester.
Working with the Public Interest Law Center of Philadelphia and others, CRCQL has brought
lawsuits against several facilities. As a result of the lawsuits, some facilities have closed, some
Westinghouse incinerator — permitted by
PADEP, sited by Chester
Abbonizio Recycling — permitted by PADEP,
sited by Chester
Thermal Pure Systems infectious wastes
autoclave — permitted by PADEP, sited by
Chester
Soil Remediation Systems - permitted by PADEP
(permit expired in 1996)
Cherokee Inc. — neither permitted nor sited
* Jerome Baiter, "The EPA Needs a Workable Environmental
Justice Protocol." Tulane Environmental Law Journal, (Vol. 12,
357, Spring 1999).
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decided not to locate in the area, and some had their permits denied. CRCQL and its allies
successfully promoted a city ordinance that does not allow a new industrial facility to produce a
net increase in pollution. They also successfully pressured EPA and PADEP to conduct a health
risk assessment. Several key actions are summarized below.
• Thermal Pure Case. In 1993, CRCQL and the Public Interest Law Center of Philadelphia
took the medical autoclave company, Thermal Pure Systems, to court. They claimed the
facility was in violation of the state law that requires the route for transporting waste between
the waste generator and the disinfecting facility to be as short as possible and to present the
least amount of risk.23 The local court found in favor of Chester residents, but the
Pennsylvania Supreme Court overturned that decision on appeal, allowing the facility to
continue operating.24 Following a series of organizational and physical problems at the
facility,25 Thermal Pure closed in 1996.26
• No Net Increase in Pollution Ordinance. In 1994, CRCQL and the Public Interest Law
Center of Philadelphia drafted a proposed ordinance requiring any new industrial facility that
intends to operate in one of Chester's M-3 Industrial Districts to cause no net increase in
pollution. The City Council approved the ordinance, and the municipal planning and zoning
code was amended on June 23,1994. It reads as follows:
Authorization as special exception shall require approval by the Zoning
Hearing Board in strict compliance with Section 1327.035(a)(2) and after
applicant presents convincing evidence to the Board that the construction or
operation of a special exception facility covered by this subsection -will not
produce a net increase in environmental pollution as compared to
environmental pollution at the tune construction of the facility commences
[emphasis added].27
• Health Risk Assessment. In the same year, CRCQL pressured EPA's Region III and
PADEP2 to initiate a 180-day risk study in Chester City and the nearby borough of Marcus
Hook. The June 1995 report found that "both cancer and non-cancer risks from the pollution
sources at locations in the city of Chester exceed levels which EPA believes are
9Q
acceptable." Results of this study are described below in more detail in the section on
Health Concerns.
• Soil Remediation Services Case. In 1996, CRCQL and the Public Interest Law Center of
Philadelphia sued PADEP opposing a permit for Soil Remediation Services (SRS) to operate
a soil combustion facility in Chester. The permit was issued on June 28, 1995, only one
month after EPA's risk study found that both cancer and non-cancer risks for Chester
residents exceeded acceptable levels.31
The SRS suit alleged violations of Title VI of the Civil Rights Act of 1964. One of the main
allegations was that "the total permit waste tonnage capacity of facilities in census tracts
where African-Americans comprise more than 50 percent of the population is 2.3 times the
total permit tonnage capacity of waste facilities in census tracts where white persons
comprise more than 50 percent of the population." The suit also alleged that PADEP did not
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consider the effects of this disparity when issuing the permit to SRS.32 The district court
found in favor of the defendants.33 On appeal, the 3rd Circuit Court of Appeals ruled in favor
of the Chester residents.34 PADEP petitioned for a writ certiorari, and the U.S. Supreme
Court agreed to hear the case. At this point, SRS decided to abandon the project and
withdrew its permit application. In response, the Supreme Court dismissed the case as moot
and vacated the 3rd Circuit's decision.3
• Delaware County Wastewater Treatment Plant and Sludge Incinerator. In 1997, Chester
residents alleged that the Delaware County Regional Water Quality Control Authority's
wastewater treatment and sludge incineration plant was not meeting state air quality
regulations and violated the state implementation plan. The case was settled by consent
decree, resulting hi construction and operational changes at the plant, a $120,000 penalty,
and an additional $200,000 supplemental amount earmarked for funding a program to
'5£
prevent lead poisoning.
* Kimberlv Clark. In 1999, after completing a three-day test burn, Kimberly Clark applied to
PADEP for a six-month permit to test the combustion of used tires as fuel at its plant in
Chester.37 Community residents opposed the test because they worried about increased
pollution. This concern stemmed, in part, from the knowledge that "from 1991 to 1996, total
production-related waste increased at the [Kimberly Clark] facility by 297 percent. The
paper plant was the second largest emitter of environmental releases in 1996 and the third
largest in 1995."38 In 2002, the permit for a six-month test was finally denied, in part
because of Kimberly Clark's refusal to install, as PADEP had insisted, a pollution control
device that would limit any possible increase in toxic emissions.
After these important successes, CRCQL dissolved, in part because its leaders were exhausted
and its resources depleted.40 Currently, local government officials point to a few small groups
that are concerned about community issues; but they are not activist organizations.
Health Concerns
Environmental Risk Study
The health concerns of the Chester community have changed little since the environmental
justice fights of the 1990s. In June 1995, EPA Region Ill's risk study documented what many in
the community had alleged; their health was at risk due to so much exposure to environmental
hazards.
EPA's 1995 Environmental Risk Study contained five major conclusions that linked increased
health risks with environmental exposures in Chester;
• Blood lead levels in the children of Chester are unacceptably high, with over 60 percent
of the children's blood samples above the Centers for Disease Control and Prevention's
recommended maximum level often micrograms per deciliter.
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• Both cancer and non-cancer risks (e.g., kidney disease, liver disease, and respiratory
problems) from pollution sources in Chester exceed levels that EPA believes are
acceptable.
• Air emissions from facilities in and around Chester constitute a large component of the
cancer and non-cancer risk to the city's citizens.
• The health risks from eating contaminated fish from streams in Chester and from the
Delaware River are unacceptably high.
• Drinking water quality throughout Chester is typical of supplies in other cities throughout
the country.
Since completion of EPA's study, no further risk assessments have been conducted in Chester.
The city's Health Department is currently undertaking a health profile of the city, fashioned after
the National Health and Nutrition Examination Survey (NHANES).43 The study will be done
entirely through interviews and without assessments or screenings.44 The Health Department
expected to begin the survey in November of 2002,45 but the survey is not designed to determine
the health impacts of industrial pollution on Chester residents.46
Implementation of Risk Study Recommendations
EPA's 1995 risk study included a series of recommended actions, directed at PADEP, for
reducing health risks in Chester. Implementation of these recommendations has produced mixed
results:
• Recommendation: "Sources of air emissions which impact the areas of the city with
unacceptably high risk should be targeted for compliance inspections and any necessary
enforcement action."47
Response: All major air pollution sources in Chester have Continuous Emissions Monitors,
which measure and record real-time pollution emissions from facilities. PADEP receives the
data quarterly and reviews it for permit violations. Facilities are assessed fines almost
automatically when violations are found. Currently, PADEP reports that facilities within
Chester are nearly in 100 percent compliance with their permit limits.48
PADEP, with support from EPA, has been conducting an air monitoring project in Chester.
The project placed four air monitors in and around Chester to measure ambient air quality
and to determine relative exposure risks among local area populations—in Chester, Marcus
Hook, and Swarthmore. Over the last six years, the study has shown that air quality is
improving, and that relative exposure risks among the local area populations studied are
roughly equivalent.49 The study is also finding that the majority of air pollution exposures
are from mobile sources, not from stationary facilities.50
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• Recommendation: "A voluntary emission reduction program should be instituted to
obtain additional emissions reductions from facilities which provide the most
emissions in the areas of highest risk."
Response: A voluntary emissions reduction program has not been instituted.
• Recommendation: "The lead paint education and abatement program in the city of Chester
should be aggressively enhanced."53
Response: In 1997, PADEP, EPA, CRCQL, and the DELCORA water treatment and sludge
incineration plant reached a settlement agreement over alleged violations at the DELCORA
facility. As part of the settlement, DELCORA provided $200,000 for a lead poisoning
prevention program. The parties agreed to appoint a trustee who oversees the allocation of
the funds. The program successfully cleaned up some properties, targeting new mothers and
babies who live in rental housing with known lead paint. Some properties were thoroughly
cleaned and the lead dust removed but, overall, the program did not prove to be very
successful.
Health Study of Minorities in Pennsylvania
In 2002, the Pennsylvania Department of Health completed its Special Report on The Health
Status of Minorities in Pennsylvania. It analyzed at the health status of "racial, cultural, and
linguistic minorities" in the state, based on the principles and objectives from the U.S.
Department of Health and Human Services' Healthy People 2010 initiative.55
The Environmental Health section of the report details how minority communities in
Pennsylvania are disproportionately exposed to environmental hazards. The report specifically
highlights Chester:
The City of Chester...has: the fourth largest garbage-burning incinerator in the
nation, burning wastes from New York, New Jersey, Maryland, and Delaware as
well as from all over Pennsylvania...and a sewage treatment facility for 90
percent of Delaware County sewage waste and highly toxic industrial sludge from
local industries. Sixty-five percent of the city residents are African-American and
the poverty rate is 25 percent, more than three times the overall rate in Delaware
County.56
Looking at Pennsylvania as a whole, the report found minority communities carry more
environmental burdens:
• "Communities of minority population are at higher risk to be exposed to
environmental hazards."57
• "A higher percentage of minority populations are exposed to poor indoor air
quality."58
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• "Death rates from asthma are higher in the minority population; higher
percentages of the minority population experience asthma."
• "A higher percentage of minority children are at risk of having a high blood lead
level; the cultural background of recent immigrants could play a role in lead
exposure."60
Other Issues in Chester
Housing
Housing is a crucial issue facing Chester. Many of the city's social service dollars are being
directed toward developing new and better housing options. The city is endeavoring to demolish
and replace much of its old, poor-quality housing stock and is even assembling lots for
developers to build new homes. To keep these new housing options affordable and to move
moderate and low-income residents from rental properties to home ownership, the city offers
residents five-year deferred loans for down payments and closing costs. If residents stay in their
homes for five years, the loans dissolve. Potential homeowners in this program must attend
homebuyer classes sponsored by a local financial institution.61
To improve existing housing stock, the city has established an early warning system. This hotline
enables residents to call and request the city to investigate serious deterioration or dangerous
conditions or to assist residents (e.g., elderly or disabled citizens) who are unable to make major
repairs.62
63
However, Chester is not relocating residents or buying out any distressed housing.
Consequently, the city has not moved people out of the housing that was the focus of
environmental justice concerns, and many people still live very close to industrial facilities.
Economic Development
The city's economic development staff consider Chester's greatest asset to be its ideal location at
the center of major transportation routes, with proximity to three states and access to air, land,
and water transportation. The city is also capitalizing on the growing national appreciation for
waterfront property by converting its industrial waterfront to a mix of commercial and
recreational uses.64 Chester has applied and has received support from several state and federal
agencies for its community and economic development programs.65 The volume of funding they
have received indicates that the city has an articulate and well-organized plan, because many
state and federal grant programs require applicants to demonstrate how work to be undertaken
with grant funding fits into larger, comprehensive programs.
To attract development, Chester uses selective tax abatements of up to 100 percent for 12 years
on land designated for high impact development, but Chester has not applied for federal
brownfield funds to clean up exiting contaminated properties for their redevelopment and reuse.
However, some private investors are working with the state voluntary cleanup program—the
Pennsylvania Land Recycling Program—that promotes private cleanups of contaminated
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property.66 The city also has not used its authority under state law to impose development fees
for transportation improvements.67
Chester's efforts to resuscitate its economy appear to be working. Public and private
investments in Chester from 1996 to 2002 have exceeded $500 million, and several developers
are now working with the city on preliminary proposals for new projects. The biggest project
involves a former power plant, which a private developer is converting to office and commercial
space. The power plant and related redevelopment (infrastructure) alone represent a $50 million
investment in Chester's future.68 The city's efforts to convert industrial properties into
commercial and other less intense uses should result in reduced pollution exposures for Chester
residents.
Although the city encourages new businesses to hire staff locally, it does not require local hiring;
and Chester residents may not have the appropriate work skills and knowledge to fill all of the
incoming jobs. The city does not conduct job training, but provides funding for and works with
local nonprofit organizations that do, such as the Chester Microenterprise Partnership.69
PLANNING, ZONING, AND GOVERNANCE IN CHESTER
The following sections describe the relationships among municipal, county, and state planning
and zoning requirements in Pennsylvania, and how these requirements relate to the
environmental permitting authorities exercised by PADEP.
Pennsylvania Planning and Zoning
Planning in Pennsylvania
Pennsylvania does not have a state land use plan, although Executive Order 1999-1 sets forth
requirements for state agencies to:
• Conduct soundly planned growth;
• Promote development in previously developed or locally designated growth areas;
• Understand how land use planning impacts environmental, economic, and social factors;
• Participate in regional cooperation;
• Preserve farmland and open space;
• Preserve property rights and the economic and social vitality of Pennsylvania's
communities; and
Maintain and improve infrastructure consistent with sound land use.
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Executive Order 1999-1 also makes the Governor's Center for Local Government Services in the
Pennsylvania Department of Community and Economic Development responsible for land use
planning assistance. These land use planning programs promote the state's Growing Smarter
Initiative and provide resources for communities. There are three primary programs to help
communities with planning:71
Land Use Planning and Technical Assistance Program;
72
Shared Municipal Services Program, for joint projects between and among
municipalities;73 and
• Community Development Block Grants.74
Municipalities are eligible for state funding from the Governor's Center for Local Government
Services. However, the state makes a specific effort to work with the 67 counties, and
encourages multi-municipality collaboration. If a municipality comes to the state for assistance,
state officials generally ask and encourage the entity to work with its county.
Delaware County has taken advantage of state programs for funding the county's comprehensive
plan. So has Chester, which recently received two Growing Greener grants.75 One state official
suggested that Chester might benefit from seeking funding for developing programs with other
nearby municipalities, especially municipalities facing too much population growth, to cooperate
•7/r
on directing some of that growth into Chester.
Pennsylvania laws delegate state planning authority to local governments through the
Municipalities Planning Code (MPC).77 Adopted in 1968, the MPC has been amended several
times, with significant changes in 2000. The MPC requires Pennsylvania's counties to develop
*7O "TQ
comprehensive plans, but local plans are optional. If a municipality does develop a plan, it
must be consistent with both the MPC and the county plan.80 State approval is not required for
any plans, but the law provides an opportunity for review and comment among municipalities
O 1
and counties in order to achieve general consistency among overlapping plans.
Current MPC provisions require all county or local comprehensive plans to contain (although
they are not limited to) the following elements:
• Objectives for future development;
• Land use;
• Housing needs;
• Transportation;
• Community facilities and utilities;
• Protection of natural and historic resources;
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• Water supply;
• Consistency with county and contiguous municipality plans;
• Short and long range implementation strategies; and
• A statement of relationships among various plan components, such as environmental,
economic development and social consequences on the municipality.82
Plans may also include an energy conservation element83 and may identify areas for new growth
and development.84 See Appendix H for more details on Pennsylvania's state planning
requirements.
Implementation of the MPC is left primarily to local governments. The state does not review
county or local comprehensive plans, nor does it monitor compliance with the MPC. The
Governor's Center for Local Services does, however, provide incentives in the form of grants,
technical assistance, and education and training to encourage local governments to undertake
comprehensive planning.85 The Department of Community and Economic Development also
provides grants and financial assistance for municipalities to support community development,
community services, housing assistance, infrastructure, municipal services, and neighborhood
improvements.86
The MPC requires that the Governor's Center for Local Government Services prepare an
informational Land Use and Growth Management Report every five years.87 The first report is
due in 2005. It must "contain information, data and conclusions regarding growth and
development patterns in this commonwealth [Pennsylvania] and...will offer recommendations to
commonwealth agencies for coordination of executive action, regulation and programs."88
The Chester Economic Development Authority (CEAC) has taken advantage of many public
investment programs, including programs from both federal89 and state90 agencies for
improvements in transportation, housing, economic development, and infrastructure.91 Chester
Vision 2000 further outlines many of the federal, state, and city programs that Chester may
potentially tap for funding.92
In June 2000, then-Governor Tom Ridge signed Pennsylvania's Growing Smarter Initiative into
law. This initiative, developed through a series of land use forums held across the state and
backed by a $3.6 million budget from the Governor's Office, was intended to support and
empower local government planning while respecting private property rights, as well as to
update the MPC.94
The Growing Smarter amendments to the MPC are potentially important tools for Chester and
other Pennsylvania localities to use in addressing environmental justice concerns. Acts 67 and
69 direct that "Commonwealth agencies shall consider and may rely upon comprehensive plans
and zoning ordinances when reviewing applications for the funding or permitting of
infrastructure or facilities."95 The actions taken by PADEP to comply with these amendments
have environmental justice implications, as discussed below.
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State Zoning
Pennsylvania law authorizes municipalities to adopt zoning ordinances that implement
comprehensive plans;96 protect public health, safety, and the environment;97 address
socioeconomic concerns; and provide for affordable housing and transportation for low to
moderate income persons.98 Zoning ordinances must reflect the community's policy goals and
consider the character of the municipality, the needs of citizens, and the special nature of
particular parts of the community.99
The state does not review local zoning laws or monitor compliance with the state code, except
through the five-year Land Use and Growth Management Report. But, as with planning, state
statutes contemplate some coordination of planning and zoning among local entities. For
example, a county must hold a mediation session with municipalities that believe the county's
ordinances will have negative local impacts.
State law does not specifically require public participation in the development of local plans or
zoning ordinances, other than traditional due process public notice and hearing requirements
prior to their adoption. However, state law limits the ability of municipalities to collect
development fees on new development. A municipality may enact development fees, but solely
for transportation purposes associated with new development [emphasis added].
Delaware County's Planning and Zoning
County Planning
Pennsylvania counties are granted planning functions in the absence of municipal authority.
Counties can adopt zoning or subdivision regulations for the entire county if there are no
municipal ordinances, or for as much of the land within the county that is unregulated. Each
county has an appointed planning commission,102 and municipalities wishing to engage in certain
planning activities are required to submit their proposed actions to the county planning
commission for review.1
Although the MFC requires counties to develop a comprehensive plan,104 municipalities are not
required to develop and adopt their own plans.105 However, if a municipality develops its own
comprehensive plan, it must do so in accordance with the MPC, and its plan must be generally
consistent with the county comprehensive plan.106 Delaware County currently operates under a
land use plan and is actively developing a comprehensive plan.! 7 Chester has a comprehensive
plan and is working with Delaware County to revise its plan and make it final.108
State law gives the governing body of a county the power to adopt and amend the county
comprehensive plan, as a whole or in parts.109 In reviewing the proposed comprehensive plan,
county officials must consider the comments of municipalities and school districts within the
county, as well as comments from contiguous school districts, municipalities, and counties. They
must also consider comments from the required public meeting and recommendations of the
county planning agency.110
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Municipal comprehensive plans must be generally consistent with the adopted county
comprehensive plan.111 A municipality may amend its comprehensive plan at any time, provided
that the local plan remains generally consistent with the county plan and compatible with the
comprehensive plans of abutting municipalities.112 However, final land use authority resides
with the municipality and, although municipal plans should be "generally consistent" with the
county plan, they are not required to be.113
In accordance with MFC Section 10302 (a.l), counties must consider amendments to their
comprehensive plans proposed by municipalities that are considering adoption or revision of
their municipal comprehensive plans, in order to achieve general consistency between the
respective plans. When two or more contiguous municipalities request amendments to a
county comprehensive plan, for purposes of achieving general consistency between the
municipal plans or a multi-municipal plan and the county plan, the county must accept the
amendments unless it can establish good cause for refusal to do so.115
County Zoning
The power of a county to enact, amend, or repeal zoning ordinances is limited to land in
municipalities that is located wholly or partly within the county and that has no local zoning
ordinance in effect at the time the county zoning is introduced. The county's power ends when a
municipal zoning ordinance is adopted. When a municipality adopts a zoning ordinance, the
county zoning ordinance is repealed.116 Delaware County does not have any county zoning
ordinances, but the city of Chester does.117
Local Governance in Chester
The Chester City Council is elected at large and is composed of a Mayor and four Council
members. All members serve four-year terms, during which each Council member serves as a
department head for one of the five municipal departments: Public Safety, Parks and Public
Property, Streets and Public Improvements, Accounts and Finance, and Public Affairs (Mayor's
Office).119
Chester is classified as a Third Class City. On April 20, 1980, the residents approved Chester as
a Home Rule Charter Community. As a Pennsylvania home rule community, the city can act
anywhere except where state law limits them, whereas municipalities without home rule can only
act where authorized by state law.120 Therefore, the Chester City Council is "given all the
legislative power to create ordinances, rules, and regulations so the city can provide for the
health, safety, and well-being of its citizens."121
Chester's Planning and Zoning
Planning Commission. The Planning Commission has five members who are appointed by the
City Council and serve four-year terms.122 Members of the Commission cannot hold any other
office in the municipality, and the Commission elects its own chairman and vice-chairman.1
123
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Zoning Hearing Board. Chester's Zoning Hearing Board has three members who are appointed
by the City Council; each member serves a five-year staggered term.124 Members of the Board
cannot hold any other office in the municipality, and the board elects its own officers from its
175
membership.
Environmental Advisory Council. Chester's Environmental Advisory Council (CEAC) is an
advisory group authorized by PADEP. Members of the seven-member Council represent a range
of interests and skills—from technical experts to local citizens. They are selected by the City
Council and approved by PADEP. CEAC elects its own officers, and any vacant positions are
filled by PADEP. CEAC also receives and investigates citizen complaints about industries in
Chester. CEAC offers advice to the City Council, but has no authority to implement its own
1 "jf.
recommendations.
Bureau of Health. Chester's Bureau of Health reviews and comments on pending PADEP
permits, concurrently with review by the City Council and PADEP. Although the Bureau can
comment on pending permits, it has no regulatory or enforcement abilities. The Bureau has over
30 full-time staff, including two medical doctors, who oversee four local health programs:
childhood lead prevention, injury and violence protection, sexual abstinence education, and
dog/animal control. The Bureau offers no clinical services, but has worked hard to develop
preventative health programs as well to increase citizens' health literacy.127 The Bureau does not
track citizens' health complaints, but is currently working on a citywide survey to profile the
state of health of the city.
City Pltm-VISION 2000
On March 14, 1994, the Chester City Council adopted its Vision 2000: Comprehensive Plan and
Economic Development Strategy. The Chester Planning Commission, the Delaware County
Planning Commission, and the public (by means of one public meeting and one public hearing)
reviewed this comprehensive plan, which reaffirmed that poor land use was a problem for
Chester:
Chester City presents a mixture of dysfunctional land uses in many areas of the
city. The major land uses including residential, commercial, industrial,
institutional, and recreation are not working together as they should...in some
areas, residential is intermingled with industry and in these cases we often find
conflict and deterioration...Other land uses that have created conflict are the
numerous auto repairs shops located in residential areas where personal service
shops, laundromats or food stores would be more appropriate.
I 7Q
Waterfront Overlay District. Also in 1994, Chester launched its waterfront overlay district.
The waterfront overlay district, a "floating zone," was created to move waterfront land use away
from heavy industry towards mixed use. City planners envision the waterfront will have mixed
uses, including offices, retail buildings, recreation, high density residential, and other uses. To
accomplish this change, the floating zone specifies conditional uses adopted by the City Council.
The zone allows existing property owners to down-zone their properties from heavy industrial to
a less intensive use, in exchange for a conditional zoning approval. This win-win situation gives
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property owners the chance to have their properties rezoned quickly so they can reinvest and
reuse them, while the city is able to make zoning changes on existing properties without the
complication of takings allegations or having to purchase properties in order to redevelop
them.130
Other Implementation. Since Vision 2000 was adopted, the city has moved to make
implementation of the plan a reality. City planners began by updating Chester's administrative
code. No changes will be made in the city zoning patterns—with the exception of the waterfront
overlay—until the code has been updated and the text has been revised. City and county officials
are now reviewing the new code, and once it has been approved, Chester will adopt it as a city
ordinance.131
ENVIRONMENTAL PERMITTING
Chester's Requirements for Industrial Facilities
Chester does not have authority to issue pollution control permits; only PADEP can do so.
However, permits for building new facilities must be obtained from the city. Both Chester's
Planning Commission and Zoning Hearing Board must approve any construction permits and site
plans. Either of these bodies may require further action before making a decision.1
132
In 1994, with the support of the CRCQL and the Public Interest Law Center of Philadelphia, the
City Council adopted a zoning ordinance for heavy industry, called M-3 Industrial Districts.133
The M-3 Industrial District ordinance makes it difficult for polluting industries to open
additional facilities in the city. It requires such facilities to obtain a special zoning exception,
which will only be granted when the:
"applicant presents convincing evidence to the Board that the construction or
operation of a special exception facility...will not produce a net increase in
environmental pollution as compared to environmental pollution at the time
construction of the facility commences."134
If the applicant does provide the required convincing evidence, the applicant must then also meet
the following requirements before opening a new facility in Chester:
• The new facility must be consistent with the comprehensive plan and comply with
subdivision, Board of Health, building codes, performance standards, and any other
applicable city regulations; and the applicant must also demonstrate that neither the
facility nor the traffic it generates will adversely impact adjoining properties.135
• As a part of the M-3 special exception, the Zoning Hearing Board has authority to
stipulate the volume of hazardous materials used or to require special handling at waste
facilities; to approve the design, layout and/or operation of proposed facilities; and to
impose additional "reasonable conditions and safeguards" for protecting health, safety
and welfare in the community.136
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• Buffers and landscaping must be provided in M-3 zones between unsightly uses and
i ft
adjacent properties.
• Finally, the new facility may not locate within 900 feet of commercial, residential,
institutional, or recreational areas or within one mile of a facility with the same function
138
or characteristics.
Presumably, this ordinance will now prevent similar facilities from locating close to each other,
as happened with Chester's waste processing facilities in the early 1990s.
In 1998, Chester also enacted a Performance Standards ordinance under authority of the MPC.
The performance standards apply to all lands within the city for activities that will potentially
impact public health, comfort, convenience, and welfare. These minimum standards apply to all
uses, unless the activity is subject to more stringent PADEP or EPA standards:
• Air quality: There can be "no emission of smoke, ash, dust, fumes, vapors, gases or
other matter [that is] toxic [or] noxious to the air which violates the rules set forth by the
Environmental Protection Agency and the Pennsylvania Air Pollution Control Laws."
• Liquid and solid waste: "No discharge [may occur] at any public or private sewerage
system, or watercourses, or into the ground of any materials in such a way or such a
nature as will contaminate or otherwise cause the emission of hazardous materials."
• Odors: "No uses shall emit odorous gases or other odorous matter in such quantities to
be offensive at any point on or beyond its lot lines."
There are additional standards for fire and explosive hazards, glare and heat, noise, vibration,
radioactivity or electrical disturbances, and public health and safety. An engineer registered in
Pennsylvania must certify in the application that a proposed new industrial use can meet these
performance standards; and the city engineer must review the engineer's certification.
These performance standards only apply to existing facilities if they expand, rehabilitate, or
redevelop. For facilities already operating, there is no retroactive enforcement of the standards,
although the zoning officer, city engineer, building official, health officer or fire commissioner
may investigate complaints.143 This inability to enforce is further compounded by the city's lack
of staff.144
Although Chester has no authority to control permits for pollution, the city now plays an active
role in reviewing permits that are received by the PADEP, as provided for in Acts 67 and 68 and
in the 2000 amendments to the MPC. The city's role in reviewing permits is discussed below.
State Environmental Permitting
PADEP receives funding from EPA to operate Pennsylvania's waste programs, and has authority
to issue or deny applications for permits to operate waste processing facilities pursuant to the
federal Resource Conservation and Recovery Act.146 PADEP applies federal regulations to
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determine whether an applicant meets the requirements for a specific permit. PADEP is also
responsible for issuing air, water, and other environmental permits throughout Pennsylvania.
Under recently enacted Pennsylvania law, PADEP "shall consider and may rely upon
comprehensive plans and zoning ordinances when reviewing applications for the funding or
permitting of infrastructure or facilities [emphasis added]."147 Thus, PADEP clearly is required
to consider local comprehensive plans and zoning ordinances in its permitting process. But,
under the law, PADEP can only base a permit decision on local land use information in a
municipality where:
• The local government has adopted a joint zoning ordinance or has adopted
zoning ordinances as part of the implementation of a cooperative agreement
(Section 1105 of the MPC); or
• Both a county and a municipal or multi-municipal plan exist, the county or
municipality has enacted zoning ordinances; and all three of these elements
are generally consistent with each other.
If a county or municipality does not meet these requirements, PADEP cannot rely upon land use
plans or zoning information nor on local governments' comments received on a land use conflict
when making a permit decision.
Effective June 8, 2002, PADEP officially issued its "Policy for Consideration of Local
Comprehensive Plans and Zoning Ordinances in DEP Review of Permits for Facilities and
Infrastructure."149 The policy outlines PADEP's position on how the undefined "may rely upon"
language will be interpreted by the agency:
State agencies under the Governor's jurisdiction, including DEP, interpret the
"may rely upon" statutory language to grant DEP discretion as to how to rely
upon planning and zoning in its permit decision making. When DEP's authority
exists to rely upon planning and zoning information and conflicts have been
identified, DEP has chosen to rely upon this information in several ways. DEP
can deny an application, approve the application or put a special condition on a
permit1*0
Therefore, although PADEP is required to consider local comprehensive plans and zoning
ordinances in relation to a pending permit application, PADEP has discretionary authority as to
how— and if—the agency will use local planning information in its final decisions on permit
applications.
Depending on how much PADEP chooses to rely upon local comprehensive plans and zoning
ordinances, the MPC amendments could be used to support the goals of environmental justice
communities. For example, the amendments may allow PADEP to rely on Chester's 1994
ordinance, which requires new industrial facilities to prove that their operations would not cause
a net increase in pollution, when the agency is considering permit applications in Chester.
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Another element of the Growing Smarter amendments is the requirement that state agencies
reach out to county and municipal planners for comment on pending state permits regarding local
land uses. The amendments changed the way the state communicates information regarding
permit applications to localities. For PADEP, the revised permit process is as follows:
1. A proposed facility submits a completed permit application to PADEP for review.
2. PADEP sends the land use portion of the permit to the county and local governments for
their review for potential conflicts with zoning ordinances or comprehensive plans.
3. The county and local governments submit their comments within 30 days to PADEP.
4. PADEP considers the local comments and may then deny the application, approve it, or
attach special conditions to the permit.152
5. If the permit is approved, PADEP then completes the public notice and comment period
as required by statue.
This new process offers the opportunity for both PADEP and municipalities to be better
informed of each other's actions.
State Environmental Justice Efforts
In the spring of 1999, PADEP formed the Environmental Justice Work Group, with members
representing a range of interests. In June 2001, the Work Group recommended to PADEP that
the agency "lead in the coordination of local, state and federal governmental agencies that can
play a role in improving the conditions of environmentally burdened minority and low-income
communities," and "act swiftly and decisively to make the improvement of conditions in
environmentally burdened minority and low-income communities one of the Commonwealth's
top priorities."153 The report focused on strategies to address environmental justice in
permitting, but there are also opportunities for PADEP to play a leadership role in the context of
local land use planning.154
The Work Group specifically recommended that PADEP:
• Take actions to reduce or eliminate the existing environmental burdens in minority and
low-income communities;
• Ensure that minority and low-income communities have opportunities to become full and
active participants in permit review processes;
• Enforce regulations and statutes and apply internal guidance and policies in minority and
low-income communities to increase monitoring in these communities; and
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• Provide organizational structures that foster a productive exchange of information with
minority and low-income communities and ensure a proactive approach to environmental
justice issues. 55
Office of Environmental Advocacy for the Southeast Region
As a result of these recommendations, PADEP's Office of Environmental Advocacy for the
Southeast Region was established in 2001—mostly for Chester's benefit. The Office works to
coordinate state, local, and federal resources for protecting the environment and addressing
environmental justice issues. The Office has identified key cities and neighborhoods in Southeast
Pennsylvania that may have environmental justice problems, and becomes involved in the
permitting process any time an application is submitted for those areas. The Office has a corridor
inspector who works with the City Council and Chester industries. The inspector reports on any
unusual emissions and other concerns. The inspector meets with the City Council and CEAC at
least once each quarter, or more frequently, depending on current issues and concerns.
In addition, the Office requires that facilities make extra efforts to notify the public when they
apply for permits in low-income, minority communities where there is a risk of over-exposure to
industrial pollution.157 This means that, in addition to publishing the usual public notices in
newspapers, applicants must distribute fliers in the neighborhood and also post notices at
libraries, in community centers, and in City Hall. The Office ensures that the expanded notice
process happens, provides information, and helps facilitate discussions between community
residents and businesses. For example, the Office recently helped facilitate information sessions
regarding a facility in Chester that has applied for a permit to expand and modify some of its
1 S8
industrial processes.
ANALYSIS AND RECOMMENDATIONS
Leadership and Accountability
The city of Chester has shown leadership by pursuing policies that will help to prevent new
environmental justice problems, but it is still grappling with how to address the effects of poor
land use decisions in the past. Chester has adopted a comprehensive plan and development
strategy, conditions for the M-3 industrial zoning district that reduce pollution, performance
standards for all new facilities, and a waterfront overlay district that encourages the voluntary
down-zoning of existing heavy industrial properties. Chester is moving forward with its future
vision, while being careful not to create future environmental justice problems or to exacerbate
existing problems.
Nevertheless, Chester's attempts not to repeat history do not address the issues associated with
some existing land uses, including inhabited but depressed housing stock still located close to
industrial facilities. While Chester officials believe the city's environmental justice problems are
in the past,159 because a sizeable number of residents still regard environmental justice issues as
unresolved because many of them continue to live near heavy industrial facilities. Although
some citizens want houses in these locations purchased at fair market value and the residents
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relocated, the city has no intention to do this.160 Thus, there is a fundamental conflict between
residents who are calling on the city to be more active in addressing existing hazards,161 and city
officials who are firmly focused on future development and investment.
Moreover, there are no accountability mechanisms to ensure that the city's comprehensive plan
and zoning ordinances will improve growth and reduce pollution—and thereby reduce
environmental hazards for Chester's low-income and people-of-color community. Currently,
Chester has no city staff dedicated to environmental protection, monitoring, or enforcement.162
The 1994 city ordinance requiring no net increase in pollution from proposed new heavy
industrial facilities is unique, but it has been ineffective due to the lack of enforcement.163 While
the city's new environmental performance standards could have a positive effect, they too remain
unenforced, largely due to staff shortages.164
A lack of accountability and oversight hampers Pennsylvania's attempts to institute
comprehensive and consistent land use planning. Under state law, counties are required to
complete comprehensive plans; but plans for municipalities are optional. If a municipality
chooses to prepare a plan, however, state law requires it to be consistent with the county plan.
Yet, municipalities are not required to adopt county plans in part or whole, and counties have no
mechanism to ensure that municipalities prepare plans that are consistent with county plans.
Pennsylvania's overarching difficultly is the lack of a mechanism to ensure that local and county
plans agree. This lack of clear accountability allows county and municipal plans to conflict and
highlights a substantial flaw in Pennsylvania's planning laws. Without meaningful ways to
resolve conflicts when municipal plans are inconsistent with county plans, or vice-versa,
Pennsylvania will continue to lack consistency in land use planning.
Permitting and Other Authorities
Chester's efforts to update and re-write its zoning code, coupled with a new, detailed
comprehensive plan, have already produced more investment and redevelopment. The City
Council's adoption of limits on pollution for new heavy industry, as well as detailed performance
standards for new facilities, are significant steps toward building a cleaner and healthier future
for Chester.
The Growing Smarter initiative further institutionalizes a new relationship between PADEP and
the state's county and municipal planning and zoning entities. By requiring PADEP to consider
local zoning ordinances and comprehensive plans, the state has created a new avenue for
strengthening communication and building awareness of county and municipal land use plans in
the permitting process. The strongest element of this initiative is that PADEP now has the
authority to deny a permit application on grounds that the proposed facility conflicts with local
land use requirements.
Setting Priorities and Reducing Risk
Chester has articulated a vision for its economic development, including desired land uses, but
the city has not adopted goals for reducing pollution, achieving environmental justice, or
reducing environmental and health risks for its citizens. Coupled with the fact that the city's
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environmental justice stance is based on preventing future problems, Chester's officials have not
explicitly focused on how they can reduce existing risks.
Chester has no staff specifically assigned to oversee the health of city residents, to implement its
pollution control efforts, nor to address environmental justice problems.165 Several departments
have partial responsibility for these issues, but none has overall authority or any particular
leadership role to work on progress for these matters. As noted earlier, Chester also has limited
public health data and no method for monitoring pollution exposures. Without these measures, it
is difficult for the city to make any progress in addressing residents' environmental justice
concerns.
Public Participation
There is no sustained community-based organizing now that CRCQL has dissolved. Its leaders
are exhausted, and their resources depleted after the environmental justice battles of the 1990s.
Local government officials point to a few small groups that are concerned about community
issues but, in general, they are not community-based activist organizations.167 Despite the current
absence of citizen involvement, Chester has not launched any specific outreach to increase public
participation in local decisions.
The only community organization still active on environmental issues, Chester Environmental
Action Council (CEAC), was created as the result of a recommendation from PADEP, and did
not grow out of the community itself. Since CEAC's creation, the city and its planning
commission have never taken any action that CEAC could not approve.168 To local government
officials, this indicates a changed government and a good working relationship. But to
community residents, this indicates that the functions of a community group have been co-
opted.170
In general, Chester's public notices are fairly minimal. The planning department posts notices of
new projects in local newspapers, conducts some outreach through regular mailings, and
periodically sends information home with schoolchildren. Despite dwindling citizen
involvement, city staff does not seek out citizen leaders, hold training, or conduct other programs
to engage residents. Yet, the city relies on these individuals to bring problems to the
government's attention.
Lastly, Chester lacks a formal process for addressing or tracking citizen concerns about
environmental or public health hazards. When asked how a complaint would be handled, each of
several city professionals offered different answers. Some thought the Mayor's office would
handle citizen concerns; others said citizens would be referred to PADEP. The local (citizen
volunteer) leader of CEAC believes he would be notified and would follow up.171 While that
dedication is admirable, it does not substitute for local government action and authority.
By contrast, PADEP has a more extensive environmental justice outreach program than does
Chester. PADEP requires extensive public notification of communities in high-risk areas
whenever a new permit application is filed.
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RECOMMENDATIONS
• The Pennsylvania Legislature should require compliance with local land use plans
whenever environmental permits are sought so PADEP can better protect communities
from bearing a disproportionate share of the negative consequences of industrial and
commercial operations. The MPC's requirement that local land use plans be considered
is a good beginning, but deference to local plans for PADEP decisions remains
discretionary. A requirement that local land use plans must be followed will create a
greater likelihood that community residents will receive greater protection.
• Chester's city government should enforce the 1994 changes to its municipal planning and
zoning code, as well as its 1998 Performance Standard ordinance. These requirements
were designed to ensure there would be no net increase in pollution from new industrial
facilities, no violations of federal air quality regulations, no unlawful discharges of liquid
or solid wastes, and no offensive odors beyond lot lines.
• Chester officials should look creatively at the city's existing authorities to address the
range of current environmental justice concerns; and they should devise creative and
aggressive strategies to solve them, including common law nuisance authorities or the
Pennsylvania State Constitution, Section 27 of Article 1, which states "the people have a
right to clean air, pure water, and to the preservation of the natural, scenic, historic and
esthetic values of the environment."172 The city should develop effective communication
strategies to inform affected communities of the status of its efforts, and should establish
measurable goals and outcomes.
• Chester officials should take steps to increase public participation in local decision-
making and develop a formal process for tracking citizen concerns about environmental
or public health hazards.
• PADEP should work with Chester's government on developing strategies to reduce risk
and addressing other community concerns, like noise, odor, and traffic; and they should
set specific goals and measures to assure accountability. As a starting point for a risk
reduction strategy, PADEP should consider using EPA's 1995 health risk study for the
Chester area. Chester and PADEP should also make information about progress being
made against goals widely available to the public on a routine basis.
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ENDNOTES
1 Chester Residents v. Seif. No. 96-CV-3960.
2 City of Chester, PA, Chester City: Spanning New Horizons (undated).
3 City of Chester, PA, Chester City Vision 2000, 127 (undated).
4 Ibid., 6.
5Ibid.,m.
6 Morgan Kelly, The History of Chester (Pennsylvania Environmental Network, February 14,1998). Available at
(visited July 2003).
7 Ibid.
8 Chester City Vision 2000, 9.
9 Chester Residents Concerned for Quality Living (CRCQL), The Case for Environmental Justice in Chester,
Pennsylvania (Environmental Background Information Center, undated). Available at
(visited July 2003).
10 Morgan Kelly, The History of Chester.
11 Chester City Vision 2000, 9.
12 "During this period, the number of retail establishments dropped from 244 to 163, a decrease of 81
establishments. This decline represented a loss of one third of all retail establishments in the city in the five-year
period [1982-1987]," Chester City Vision 2000, 169.
13 Chester City Vision 2000, 9-10.
14 CRCQL, The Case for Environmental Justice.
15 U.S. Census Bureau, "Your Gateway to Census 2000," website,
(visited July 2003).
16 Chester is home to Widner University.
17 U.S. Census Bureau, Census 2000.
l*Ibid.
19 A soil remediation facility was not sited by Chester, but was permitted by PADEP.
20 U.S. Environmental Protection Agency (EPA), Draft EnvironmentaUustice Strategy for Executive Order No.
12898 (January 1995).
21 See CRCQL v. Seif, No. 96-CV-3960, Jerome Baiter Brief, I.D. 26634: "All wastes to these facilities
[Westinghouse Incinerator, Abbonizio Recycling, Thermal Pure Systems, and DELCORA Sewage Treatment
Sludge] are delivered by trucks." 9.
22 See Zulene Mayfield, presentation at the National Environmental Justice Advisory Council's Public Meeting on
Environmental Permitting, Arlington, Virginia (November 30—December 2,1999).
23 Chester Residents v. PADER and Thermal Pure, No. 556 CD 1994.
24 Thermal Pure v. PADER and the Citizens of Chester, Supreme Court No. 63E.D-Misc, D (1995).
25 "Thermal Pure's burners and autoclave were broken, leaving 33 un-refrigerated trucks of infectious waste sitting
outside the facility for four days in violation of state law. Failings such as this led to lost customers and the
eventually failure of the business." Jerome Baiter, Public Interest Law Center of Philadelphia, Interview (October
31,2002). See also, Mike Ewall, Environmental Racism in Chester (Pennsylvania Environmental Network, July 23,
1999). Available at (visited July 2003).
26 Pennsylvania Department of Public Health, State Health Improvement Plan: Special Report on the Health Status
of Minorities in Pennsylvania: 2002, 6-2 (April 2002). Available at
(visited July 2003).
27 Article 1365.03(c)(3) (1999 replacement).
28 The Pennsylvania Department of Environmental Protection (PADEP) was formerly called the Pennsylvania
Department of Environmental Resources (PADER). For the purpose of this text, PADEP is use to refer also to
PADER.
29 U.S. EPA Region III and PADER, Environmental Risk Study for City of Chester, Pennsylvania; Summary, 2 (June
1995).
30 CRCQL v. Seif, filed May 28,1996.
31 EPA Region III and PADER, Environmental Risk Study.
32 For an extensive description of the environmental inequities in Chester by census tract, see CRCQL v. Seif,
Baiter Brief, 7-3 3.
33 CRCQL v. Seif, 944 F. Supp. 413,416-417 (E.D. Pa. 1996).
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34 CRCQL v. Seif, 132 F.3d 925 (3rd Cir. 1997).
35 Jerome Baiter, Public Interest Law Center of Philadelphia, Interview (October 31, 2002). Scott C. Fulton, Acting
General Counsel, U.S. Environmental Protection Agency, Memorandum to Carol M. Browner, Administrator, U.S.
Environmental Protection Agency, "Supreme Court Dismissal of Environmental Justice Case " (August 20,1998)
Jerome Baiter, Interview (October 31,2002).
37 Philadelphia Inquirer, "State Says No to Plan for Tires as Fuel" (December 10,2002).
CRCQL, The Case for Environmental Justice.
39 Philadelphia Inquirer, "State Says No."
40 Rev. Horace Strand, Faith Temple Holy Church, Interview (August 25, 2002).
41 William Payne, Director, Planning Department, City of Chester, Interview (August 20,2002).
42 EPA Region III and PADER, Environmental Risk Study.
Dr. Masood Shaikh, Deputy Health Commissioner, Chester Health Department, Interview (August 20, 2002).
Ibid,
45 Ibid.
46 Ibid.
47 EPA Region El and PADER, Environmental Risk Study, 2.
48 Francine Carlini, Air Quality Program Manager, PADEP, Interview (May 27,2003); Patrick R. Andersen, Special
Assistant to the EPA Region III Administrator, Interview (May 23,2003).
49 Francine Carlini, Interview (May 27,2003).
50 Ibid.
51 EPA Region III and PADER, Environmental Risk Study, 2.
52 Francine Carlini, Interview (May 27,2003).
53 EPA Region m and PADER, Environmental Risk Study, 2.
54 Patrick R. Andersen, Interview (May 23,2003).
* Pennsylvania Department of Public Health, State Health Improvement Plan, 6-1, 6-2 (undated).
xlbid.
S7Ibid,6-l.
58 Ibid.,6-2.
59 Ibid, 6-4, 6-5.
60 Ibid., 6-6.
Dave Sciocchetti, Executive Director, Chester Economic Development Authority, Interview (August 20,2002).
William Payne, Interview (August 20,2002).
&Ibut
64 Dave Sciocchetti, Interview (August 20, 2002).
The City of Chester has received funding from the following federal agencies: Economic Development
Administration; Department of Transportation; Housing and Urban Development; National Oceanic and
Atmospheric Administration /Coastal Zone Management; EPA; Department of Justice-Weed and Seed; and the
Department of Interior (historic tax credit). The city has also received funding from the following state agencies:
Pennsylvania Housing Finance Agency; State Weed and Seed; Department of Community and Economic
Development (DCED); Department of Conservation and Natural Resources. Dave Sciocchetti, Interview (October
30,2002).
66 For more information, see PADEP, "Pennsylvania's Land Recycling Program," website,
(visited June 2003).
7 Dave Sciocchetti, Interview (October 30,2002).
6SIbid
Ibid. See also, Philadelphia Development Partnership, "Chester Microenterprise Partnership," website,
(visited July 2003).
Governor Thomas J. Ridge, Commonwealth of Pennsylvania, Executive Order 1999-1 (January 7,1999).
Governor's Center for Local Government Services, Growing Smarter Toolkit: Catalog of Technical and Financial
Resources, 51-53 (April 2002). Available at .
72 "In the 2 years of the program's existence, LUPTAP has appropriated more than $5.4 million to local
governments in Pennsylvania and impacted 1,744 of the State's 2,567 municipalities and over half of the 67
142
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counties." Pennsylvania Growing Smarter, "Land Use Planning and Technical Assistance Program (LUPTAP),"
website, (visited July 2003).
73 "In FY 00-01 a $900,000 appropriation has been authorized for the Shared Municipal Services Program. In FY
99-00, the Department was able to fund 56 projects that benefited 15 cities, 724 boroughs and 309 townships in 37
counties with a $900,000 appropriation." DCED, Shared Municipal Services Program: Program Guidelines, 2
(September 2000). Available at
.
74 For more information, see DCED, "Invent PA: Community Development Block Grant Program," website,
(visited July 2003).
75 William Payne, Interview (August 20,2002).
76 Neil Kinsey, Local Government Policy Specialist, Governor's Center for Local Government Services, Harrisburg,
PA, Interview (October 29, 2002).
77 53 P.S. Section 10101 (West 1997).
78 53 P.S. Section 10301.4(a) (West Supp. 2002) (municipalities and school districts within the respective county,
and contiguous counties, school districts and municipalities must have an opportunity to review, comment and
participate in the preparation and adoption of the county comprehensive plan).
79 Gerstley v. Cheltenham Tp. Planning Com'rs, 95 Montg. 195 (1971).
90 Ibid. See also, 53 P.S. Section 10306 (West Supp. 2002).
81 Ibid.
82 53 P.S. Section 10301(a) and (b) (West Supp. 2002).
83 53 P.S. Section 10301.1 (West Supp. 2002).
84 53 P.S. Section 10301(d) (West Supp. 2002).
85 DCED, "Invent PA: Governor's Center for Local Government Services," website,
(visited October 16,2002).
86 Ibid.
87 Municipalities Planning Code, Article 3, Section 307: "State Land Use and Growth Management Report. The
Center for Local Government Services shall issue a land use and growth management report by the 2005 and shall
review and update the report at five-year intervals." Available at http://www.landuseinpa.Org/docs/M.P.C/MPC.pdf.
96 Ibid., Article 1, Section 107. Available at http://www.landuseinpa.Org/docs/M.P.C/MPC.pdf.
89 See note 65 for a list of federal agencies providing funding to CEDA.
90 See note 65 for a list of state agencies providing funding to CEDA.
91 Chester City Council, Public and Private Investment in Chester, Map (2002).
92 Chester City Vision, 221.
93PADEP, "Gov. Ridge Signs'Growing Smarter* Land Use Bills," Environmental Protection Update (June 23,
2000). Available at (visited July
2003). See also DCED, "Gov. Ridge Unveils Dramatic Environmental Budget—Implements 'Growing Greener.'
Call for "Growing Smarter," Press Release (February 8,2000). Available at
(visited July 2003).
94 Ibid.
95 53 P.S. Section 10619.2 (West Supp. 2002).
96 53 P.S. Section 10601 (West Supp. 2002).
97 Municipalities Planning Code, Article I, Section 107. The Code defines preservation or protection when used in
connection with natural and historic resources to "include means to conserve and safeguard these resources from
wasteful or destructive use, but not... to authorize the unreasonable restriction of forestry, mining, or other lawful
uses of natural resources".
98 Ibid., Article V-A, Section 502 A and Article VI Section 614, 616.
99 53 P.S. Section 10603(a) (West Supp. 2002).
100 53 P.S, Section 10501-A et. seq. (West 1997). If a municipality, however, chooses to enact impact fees for offsite
transportation improvements, it must have adopted either a municipal or county comprehensive plan, subdivision
and land development ordinance or zoning ordinance.
101 Pennsylvania Planning Association, "State Planning Code," website,
(visited 10/15/02).
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103 53 P.S, Section 10304 (West 1997).
104 53 P.S. Section 10301.4(a) (West Supp. 2002) (municipalities and school districts within the respective county,
and contiguous counties, school districts and municipalities must have an opportunity to review, comment and
participate in the preparation and adoption of the county comprehensive plan).
Gerstley v. Cheltenham Tp. Planning Com'rs, 95 Montg. 195 (1971). See note 100 above.
106 Ibid. See also, 53 P.S., Section 10306 (West Supp. 2002).
107 Susan W. Hauser, Manager, GIS & Information Services, Delaware County Planning Department, Interview
(May 27,2003).
108 Ibid; William Payne, Interview (May 19,2003).
109 53 P.S, Section 10302(a.l) (West Supp. 2002).
111 53 P.S. Section 10301.4(a) (West Supp. 2002).
112 Ibid., Section 10603(k) (West Supp. 2002).
113 William Payne, Susan W. Hauser, and Neil Kinsey, Interviews.
114 53 P.S., Section 10302(d) (West Supp. 2002).
lislbid.
116 53 P.S. Section 10602 (West 1997).
117 Susan W. Hauser, Interview, and William Payne, Interview (May 20,2003).
118 City of Chester, "Chester City Council," website, .
119 Ibid.
120 Governor's Center for Local Government Services, Home Rule in Pennsylvania; Seventh Edition, 3 (March
2003).
121 City of Chester, "Welcome to Chester," website, (visited May 2003).
122 Municipalities Planning Code, Article 2, Section 201-203.
123 Ibid., Article 2, Section 207.
124 Ibid., Article IX, Section 903.
125 Ibid., Article IX, Section 906.
126 Herman Fryer, Chair, Chester Environmental Advisory Council, Interview (August 2002).
127 Dr. Masood Shaikh, Interview (August 20,2002).
128 Chester City Vision 2000, 55.
129 Chester City Code, 1365.07 (a-i).
130 William Payne, Interview (May 19,2003).
131
Ibid.
132 Office of Building Official, Department of Public Safety, City of Chester, PA, "Application for Plan Examination
and Building Permit" (1990).
133 Chester City Code, 1365.03, "M-3 Industrial Districts."
134
Ibid.. 1365.03 (c)(3).
135 Ibid., 1365.05
136 Ibid., 1365.05(h)(l-4).
137 Ibid, 1365.04
mlbid., 1365.05 (a-e).
139 City of Chester, Performance Standards Ordinance, Bill No. 23, Section 4.1 (April 1998).
140 Ibid., Section 4.4.
141 Ibid.t Section 4.6.
142 Ibid., Sections 3.2 to 3.3.
143 Ibid., Section 5.1.
144 William Payne, Interview (October 30, 2002).
145 See 35 Pa. Cons. Stat. Ann. Section 6018.101 et seq (West 1993).
146 42 U.S.C. 6901 et seq., and other federal sources.
147 53 P.S. Section 10619.2 (West Supp. 2002).
148 PADEP, Considering Local Land Use Plans and Ordinances in Issuing DEP Permit, Fact Sheet (January 21,
2003).
144
-------
PADEP, Policy Office, Policy for Consideration of Local Comprehensive Plans and Zoning Ordinances in DEP
Review of Permits for Facilities and Infrastructure , DEP ID#012-0200-001, (June 8, 2002).
mlbid, 10.
151 Ordinance 12-1998, Article 1365.02(c)(3), (April 9, 1998).
152 PADEP, Considering Local Land Use Plans (January 21, 2003).
153 PADEP, Environmental Justice Work Group, Report to the Pennsylvania Department of Environmental
Protection, 4 (June 2001).
154 Ibid., 16.
|55 Ibid., 4.
156 Alice Wright, Environmental Advocate, Office of Environmental Advocacy for the Southeast Region, PADEP,
Interview (October 28, 2002).
157 Ibid.
159 William Payne, Interview (August 20, 2002).
160 William Payne, Interview (May 19, 2003), and Rev. Horace Strand, Interview.
161 Rev. Horace Strand, Interview.
162 William Payne, Interview (August 20, 2002).
163 Mike Ewall, "Environmental Racism in Chester" (Pennsylvania Environmental Network, July 3, 1999).
Available at www.penweb.org/chester/ewall_article.html.
164 William Payne, Interview (August 20, 2003)
165 Dave Sciocchetti, Interview (August 20, 2002); William Payne, Interview (August 20,2002); Dr. Masood
Shaikh, Interview (August 20, 2002).
Rev. Horace Strand, Interview (Au
William Payne, Interview (August 20, 2002).
169 William Payne, Interview (August 20,2002).
Rev. Horace Strand, Interview (August 25,2i
Herman Fryer, Interview (August 25,2002).
Pennsylvc
May, 2003).
166 Rev. Horace Strand, Interview (August 25,2002).
167
168 Herman Fryer, Interview (August 25,2002).
170 Rev. Horace Strand, Interview (August 25,2002).
171
172 Pennsylvania Constitution, Article I, Section 27. Available at (visited
145
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146
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CHAPTER EIGHT
ALTGELD GARDENS — CHICAGO, ILLINOIS
FINDINGS
Finding 1. The environmental problems at Altgeld Gardens—and throughout the Calumet
Region of Southeast Chicago—are the legacy of the region's 100-year history as an area for
industrial and waste disposal and the more recent siting of nearby municipal waste treatment
facilities. The environmental conditions reflect Chicago's failure to consider the potential
implications of locating residential and industrial areas in close proximity to each other because
current pollution controls may not provide adequate protection to residents faced with multiple
exposures. At the time the Altgeld Gardens housing project for African-Americans was built—
over the objections of neighboring, primarily white, communities—possible environmental
problems from past and existing industrial uses in the area were not recognized, and its location
near a forest and a river was considered desirable.
Finding 2. Chicago's current effort to adopt comprehensive zoning reforms provides a unique
opportunity to address community and public health concerns. Zoning ordinances regarding set
backs and aesthetics in transition areas between residential and manufacturing districts can be
improved. Controls on such community concerns as noise, odor, toxic matter, and smoke can be
strengthened and clearly made applicable to existing, as well as future, activities. Penalties for
code violations can be increased so facilities will have greater motivation to comply with zoning
restrictions.
As part of these reforms, public participation in zoning decisions can be expanded. Notification
requirements for proposed zoning changes can ensure that every person or organization with a
potential interest is notified and has a chance to participate, and the first step is ensuring
adequate public participation in the rezoning effort itself. While some outreach about the zoning
reforms has occurred and the public is invited to comment on draft materials, the real test will be
the extent to which the public is actively engaged—and listened to—once the city prepares
proposed new zoning maps.
Finding 3. Chicago's aldermen play a central role in the delivery of government services and
decision-making. Local environmental and planning agencies appear to rely almost entirely on
each ward's alderman to conduct community outreach and to provide the agencies with
community perspectives on the issues. By contrast, the Illinois Environmental Protection
Agency (IEPA) conducts extensive community outreach efforts for comments on state permits
and has a draft environmental justice policy setting out its plans for ensuring consideration of
disparate impacts in its permitting and other programs.
Finding 4. Much of the land near Altgeld Gardens and other nearby Southeast Chicago
neighborhoods is zoned for manufacturing uses. If the Calumet Area Land Use Plan is
implemented, some of the land will be preserved or reclaimed for open space and recreation.
However, large tracts will remain zoned for manufacturing uses because the area—with its
147
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existing infrastructure for transporting goods—is considered vital to Chicago's economic
redevelopment. The city's challenge is to reduce the adverse impacts on neighboring residential
districts from existing and past facilities in the manufacturing districts, such as by strictly
enforcing current requirements and fostering use of pollution prevention measures. With regard
to new facilities, the city must carefully consider the potential for disparate impacts on low-
income and people-of-color communities and accept only new developments that do not
exacerbate already poor environmental conditions or expose neighboring residents to increased
pollution.
Finding 5. The whole Calumet Region of Southeast Chicago is considered a high priority for
economic improvement and environmental restoration. Several efforts are underway to foster
environmentally sound development that will help to address the residents' environmental justice
and public health concerns, as well as to improve conditions for wildlife and recreation.
Addressing current environmental problems such as odor is a prerequisite to progress, however.
For any proposed new or expanded facilities, the city can use its zoning rules and environmental
reviews to establish buffer zones between residential and commercial or industrial uses. IEPA
and Chicago's Department of Environment (DoE) can also use their permitting processes to
foster pollution prevention and appropriate pollution controls. Done properly, the region's
redevelopment effort could become a model of sustainable development in other Rust Belt
communities.
Finding 6. Chicago appears to be committed to using sustainable development approach for the
Calumet Region. Turning around both the region's negative image and its contaminated
conditions will require leadership and coordination among various local and state agencies, as
well as other organizations not accustomed to working together. While the area's community-
based groups and environmentally focused groups have different perspectives, they share
common goals for environmental improvement coupled with economic development. A
coordinated effort by these groups to work on their common goals could be a powerful engine
for ensuring action on local problems.
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INTRODUCTION
Altgeld Gardens is one of several Southeast Chicago communities in the Calumet Region. While
this case study focuses on Altgeld Gardens and some of the unique issues faced by the people
living there, many of the environmental conditions, public health concerns, and the solutions are
also relevant throughout the Calumet Region.
The environmental justice story of Altgeld Gardens begins in the early 1940s, when federal and
city housing officials decided to build public housing for African-Americans on the far south
side of Chicago. During Altgeld Garden's early years, there was a waiting list of people seeking
to live in the pleasant, garden-style apartments located away from the city center on land
bordered by the Beaubien Woods Forest Preserve and the Calumet River.1
Once considered a model public housing project, Altgeld Gardens is now emblematic of the
problems faced by people living near industrialized areas where past, present, and possibly future
industrial development threatens public health and the environment. This case study analyzes
Altgeld Gardens in the broader context of similar environmental problems throughout the
Calumet Region of Southeast Chicago.
BACKGROUND
About Altgeld Gardens
Despite its campus-like setting and proximity to open space, Altgeld Gardens is located in an
area that has been industrialized for more than a century. During the period of Chicago's major
industrial growth after the Civil War, steel mills, railroad shops, manufacturing facilities, and
many smaller industries moved into the area around Lake Calumet and along the Calumet River.
The location was desirable for industry because, although the land was wild and marshy, it was
cheap and had good access to transportation for both rail and lake shipping.2 Moving to the
then-remote Calumet Region had another advantage for industry because, at the time, few people
lived there, which minimized public health concerns that city dwellers were starting to raise
about smokestacks and other pollution sources.
Initially, the residential communities—such as Roseland and Pullman—that ^grew up in
Southeast Chicago around the mills and factories were overwhelmingly white. Racially
segregated housing was still the social norm in Chicago when Altgeld Gardens was built in the
early 1940s. In 1940, African Americans lived in only nine of Chicago's 75 communities. From
the very outset, Altgeld Gardens was intended to provide homes for African-Americans. When
the city proposed building Altgeld Gardens and other public housing projects in Southeast
Chicago, some local aldermen and community residents opposed the projects because they did
not want African-Americans moving near their white neighborhoods.
149
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The Calumet Region prospered until after World War II. By the late 1980s, after the steel mills
and other industries had moved away, they left behind contaminated land and water,
unemployment, and economically depressed neighborhoods. The ethnic composition of
Southeast Chicago's side neighborhoods changed, but they remained racially separated. In 2000,
the neighborhoods of Roseland, Riverdale (including Altgeld Gardens), and West Pullman were
more than 90 percent African-American, while Hegewisch and East Side were^ore than 75
percent white. Pullman and South Deering had more ethnically mixed populations.
There are currently 3,455 residents in Altgeld Gardens, occupying 1,089 of the 1,498 housing
units.6 Chicago's total population is 2,215,574, of which 36.8 percent are African-Americans.
In the census tract where Altgeld Gardens is located, the total population is 9,809, of which 96.8
percent are African-Americans.
Median household income in
Chicago is $38,321, and the median
per capita income is $20,175. The
city's unemployment rate is 6.2
percent, and 19.6 percent of
individuals have incomes below the
poverty level.7 The Chicago
Housing Authority reports that the
average annual per capita income of
Altgeld residents is $8,256.8
Figure 8-1
Chicago, Illinois—Demographics
Location: Cook County
Total Population:
Race and Ethnicity*:
African-American:
White:
Hispanic:
"some other race":
Unemployment Rate:
Median Household Income:
Individuals Below the Poverty
Level:
High School Graduate or Higher:
2,215,574
36.8 percent
46.2 percent
26.0 percent
13.6 percent
6.2 percent
$38,625
19.6 percent
71.8 percent
Totals do not add up to 100 percent because some individuals specified more
than one race.
Source: U.S. Census Bureau, Census 2000
Now more than 60 years old, Altgeld
Gardens has become dilapidated;
many units are boarded up and
vacant. There are preliminary plans —
to rehabilitate the buildings as part of the Chicago's effort to transform the city's public
housing.9 The draft 2002 Chicago Housing Authority budget allocates one million dollars for
capital improvements at Altgeld Gardens.
Residents of Altgeld Gardens face the myriad social, economic, and public safety issues common
to many urban neighborhoods. But they are also concerned about the health impacts of living in
the center of what local activists term a "toxic doughnut" because Altgeld Gardens is still
surrounded by more than 100 industrial plants and 50 active or closed waste dumps. Citizen
activists want solutions to their long-standing exposures to odors and pollution from a
multiplicity of water, air, and land sources.
These sources include steel mills, landfills, a paint factory, a chemical factory, and a sewage
treatment plant.11 Hidden behind a landscaped area directly across the street from Altgeld
Gardens, biomass sludge dries on huge slabs in the open air at two facilities controlled by the
Metropolitan Water Reclamation District. Nearby, an active landfill owned by Waste
Management Inc. emits methane gas.12 Among major industrial facilities within a few miles of
Altgeld Gardens are Ford Motor Company, Acme Coke, and Chicago Specialties (formerly
Sherwin Williams Paints).13 Highways and major roads isolate Altgeld Gardens from the rest of
the city.
151
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To understand the environmental justice problems at Altgeld Gardens, it is important to
recognize that it is located in an area that was, is, and is likely to remain, industrial. Despite the
negative image of the Calumet Region and its wetlands as an area of contamination and
economic decline, citizen groups, developers, environmentalists, and government officials see
potential for economic revitalization, as well as for recreation and wildlife enhancement. They
share a common interest in promoting sustainable economic development that will protect public
health and enhance environmental quality.14
Environmental Setting
The natural environment of the Calumet Region is characterized by wetlands, rivers, and lakes
This fact is central to the area's history, its current environmental conditions, and its future.
An estimated 25,000 acres of wetlands existed in the Calumet Region before it was settled by
Europeans. Only about 600 acres of wetlands remain, many now in fragmented patches.
The low and marshy land was not appealing for residential development, but historically it was
deemed suitable for waste disposal. In addition, wetlands were filled to create land for industrial
expansion. Over the years, however, working class communities grew up on the land adjacent
to the mills and factories. So while land use in the area is still primarily industrial, residential
communities are now located nearby.
Southeast Chicago has been an industrial center for more than 100 years. The steel industry in
particular, was very important to the local economy. Lake Michigan was convenient for
receiving shipments of iron ore and coal and for shipping out product. Mills and factories used
the streams and wetlands for cooling and waste disposal. Solid and liquid wastes from industry
leached acids and heavy metals into the rivers and lakes. Heavy industry also caused severe air
pollution. After the mills closed in the 1970s and 1980s, waste disposal became a major local
industry. The wetlands had been used for waste disposal since before the industrial era when
farmers used to transport produce to the city and cart back urban waste to dump in the
wetlands.
Before landfills were required to have licenses and garbage disposal regulations were enacted
large amounts of waste were dumped in the Calumet Region; and liquid wastes were poured
directly into waterways. Over 130 years of industrial activity has exposed the region's citizens
to a wide range of contaminants. For example, fly ash left over from burning coal contained
trace amounts of uranium. In addition, years of steel manufacturing added plentiful wastes in
the form of slag, a fused aggregate of leftover minerals.19
In recent years, controversy has grown over the accumulation of odors from industrial and waste
facilities near Altgeld Gardens. In particular, citizens have complained about the methane gas
being emitted from the landfills and the odors from the Metropolitan Water Reclamation
District's sludge drying facility.20 Even so, since 1985, there has been a moratorium on siting
new solid waste facilities in Chicago.
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When Altgeld Gardens was built during World War II, it was surrounded by a forest preserve
and a river. Heavy industry was in the area, but not nearby. Later, during the 1960s and 1970s,
heavy industry was permitted in the area, but half of these industries are now gone. Currently,
Southeast Chicago has the most landfills of any area in the city. Wetlands have been filled with
trash, and a large portion of Chicago's approximately 2,000 contaminated brownfield sites are
located in the Southeast. USX's South Works, located in Southeast Chicago on Lake Michigan, is
•}'}
the largest brownfield site in Illinois.
9^
The Calumet Region has been called a "combination landfill and nature area." In 1990, the
Illinois Department of Energy and Natural Resources described the legacy of industrial
development and waste disposal in the area:
The effects of past pollution in the form of contaminated water, sediment, and
soils in the region are continuing threats to the environment. Land and water
pollution in the Lake Calumet area is a threat to humans who work, recreate, hunt,
and fish in the area as well as to native and migratory fish and wildlife. 24
Yet, the Calumet Region remains a unique ecosystem, despite the severe pollution there. The
wetlands are part of a larger hydrological system that serves as habitat for migratory birds.
These features have attracted the attention of conservation and environmental organizations at
regional and national levels, as well as local community groups, who understand that the area's
7^
economic future is tied to its environmental assets.
ENVIRONMENTAL JUSTICE CONCERNS
As explained below, residents of Southeast Chicago have numerous environmental justice and
public health concerns due to the area's past and present use for industrial and waste disposal
purposes. The air does not meet particulate matter standards; toxic releases are among the
highest in the country; water quality is impaired; landfills and waste disposal facilities abound;
and there are many plots of contaminated land from past industrial uses. All but two of the seven
communities that comprise Southeast Chicago have mostly African-American residents.
Environmental Quality in Cook County
Because so much of Chicago's heavy industry and waste disposal has been located in Southeast
Chicago, the people who live there face potential environmental threats from a variety of both
existing and historical pollution sources. In addition to the general environmental threats facing
all of Southeast Chicago, Altgeld Gardens residents have more specific concerns due to their
close proximity to sewage treatment and sludge drying facilities, plus many contaminated and
abandoned industrial sites.
Most data on environmental pollution and risks is available only at the county level. However,
information about Cook County, which includes Chicago, illustrates the city's environmental
problems. Because much of the city's industrial and waste disposal activity is concentrated in
153
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Southeast Chicago, it is reasonable to assume that environmental conditions are poorer in that
area of the city than in Cook County as a whole.
Following are some general facts about environment quality in Cook County.
• Hazardous air pollutants. Cook County ranks among the worst ten percent of counties in
the United States in terms of an average individual's cancer risk from hazardous air
pollutants. 82 percent of the cancer risk is from mobile sources (e.g., automobiles and
trucks); 12 percent is from area sources (e.g., dry cleaners and gas stations); and 6.3
percent is from point sources (e.g., major industrial facilities).27
• Air quality standards. Cook County ranks among the dirtiest 30 percent of counties hi the
nation in terms of particulate matter, a mixture of particles such as dust, soot, smoke, and
liquid droplets. Common sources are cars, factories, power plants, and construction
activity. Particulate matter can cause or aggravate respiratory and cardiovascular disease
and result in premature death; the elderly, children, and asthmatics are especially
vulnerable. Southeast Chicago is a nonattainment area for PM-10.28 Acme Steel, located
in Riverdale near Altgeld Gardens, had the highest PM-10 emissions in Cook County,
and is among the top ten percent of PM-10 emitting facilities in the nation. Acme Steel is
also among the top ten percent in the nation for PM-2.5 emissions carbon monoxide,
nitrous oxide, sulfur dioxide, and volatile organic compounds.29
• Toxic releases. Cook County is among the top ten percent of counties in the United
States for cancer and non-cancer risks from air and water releases. The top ranked source
of cancer risk is chromium compounds, and the top ranked source of non-cancer risk is
mercury compounds. Acme Steel has one of the highest releases of benzene (cancer-
causing) and mercury (non-cancer risks) in Cook County.30
• Lead. Cook County ranks as the 37th highest county in the nation for lead emissions, and
ranks highest in Illinois for the percentage of housing (five percent) that is projected to
have lead hazards. Lead is a known carcinogen as well as a developmental and
reproductive toxicant.31
• Water quality. In Cook County, the quality of 19 percent of the surface water is
threatened or unpaired. Some rivers and streams are impaired by nutrients and habitat
alterations; some lakes, reservoirs, and ponds are impaired by nutrients and sediments.
Leading sources of this water pollution are urban runoff, storm sewers, municipal point
sources, hydromodification/habitat modification, and construction.32
Regional Multi-Media Cumulative Risk Analysis
In 1996, EPA began working on a phased multi-media analysis of pollution sources in Cook
County, Illinois and Lake County, Indiana. The goal was to create a model for defining
cumulative risk in an urban setting. The first step in the effort, developing a multi-media profile
of potential exposure based on existing environmental data, has been completed. An air quality
154
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screening analysis that will establish a ranking system for evaluating air toxies is now under
33
development.
People for Community Recovery
Community Recovery (PCR)-the only environmental organization based in a public housing
project.
using water from local wells that smelled like sulfur.
" Tta »«,»« h» «. bee. p«™.ly clo«d
od» .u«™,
opting P«n»i.
.»*», with o,h»,
1 ra
*» »P
at local companies.
PCR currently has a lawsuit pending against the Chicago Housing
allege that CHA has not provided a safe and healthy environment for Altgek ^
of some residents.37 In 1999, CHA began cleaning up the PCBs.
Nations Conference on Environment and Development in Rio De Janeiro, Brazil, bne
155
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Environmental Concerns at Altgeld Gardens
Odor
Mardl KI6VS' ChlCaS° reSional team manager, EPA
N°
a
156
-------
the logs would be used.
The
their frustration at the lack of government action:
1 hear everyone talking about the different odors. There are different odors that I
S Z& becaL I have learned the deference by beconung a no. expert
Vw livins in it I know the difference between garbage smell. 1 know me
community....
should not have to bear the burden of not only sludge, landfills
aSese odors among the other things that is going on m our community.
You sav tat you
that you know that there are a number of sources of odors. Why isn't it
:*sr:
,, -er t» .* up.. »«, i.«u,U ,o develop
157
-------
this exercise that you are askmg these good people to have to go through?^
odors are bad; they
prepare a study on
understand.
Task Force'
to locate
addte'"d l
-
resPonsiveness summaries easier for citizens to
to take to control odor
study were still being a
odor study, IEPA officials said
at tne
of odors at the
MWRD WOuld need
fh ^^1^ ^
'16 ll ha« not yet begun the
°dor
158
-------
Altgeld Gardens, Therefore, federal, state, and local officials need to undertake a full and
creative examination of all authorities under environmental, zoning, or general nuisance laws to
see if there are potential solutions to the odor problem. For example, a preliminary examination
of the MWRD's Title V permit, issued by IEPA under the Clean Air Act, suggests that fugitive
odor emissions from the sludge drying operation may not be appropriately addressed in the
permit.53 Meanwhile, IEPA officials are considering trying to conduct a good neighbor dialogue
between Altgeld residents and the MWRD facility to find a resolution to the odor issues.54
Asthma
In Chicago, asthma deaths are among the highest in the United States, with particularly high
mortality among minorities living in low-income communities. There have been
disproportionate increases in deaths among the city's African-Americans since the mid 1970s.5
The zip codes with the highest rates of asthma are more likely to be in the city's poorest
neighborhoods, including in zip codes where a high proportion of Chicago's public housing is
located.56
A recent study of Chicago's public housing residents reveals that they are greatly affected by
asthma. In the survey, 29 percent of residents stated that someone in their household had had at
least one asthma attack in the past six months, and 50 percent said that a member of their
household had been diagnosed with asthma by a doctor.57
Lead
Chicago has one of the highest rates of lead poisoning in the country.58 Lead-based paints can
cause lead poisoning, as can soil contaminated from years of exhaust fumes from cars and trucks
that used leaded gas before it was banned.59
Because of the old age of the housing stock, there are lead issues throughout Chicago, and an
estimated 20 to 30 percent of Chicago communities face high lead hazards.60 Over 100,000
housing units are estimated to have lead paint.61 Lead issues are addressed through the city's
Department of Health, and the city's Department of Planning and Development is working on a
lead reduction program at Altgeld Gardens.62
Compared to the rest of Chicago's neighborhoods, the Riverdale community—which includes
Altgeld Gardens—has a relatively low percentage of children who have elevated blood lead
levels greater than 10 mcg/dL. With five percent of children having elevated blood lead levels,
Riverdale ranks 58 out of 77 Chicago communities.63 However, average blood lead levels for
children living in the Altgeld Gardens housing project cannot be determined from these
aggregated data.
Altgeld residents are concerned about lead exposures. PCR founder Hazel Johnson organized
and developed a lead awareness project. Working with the Chicago Legal Clinic, PCR trained
public housing residents to address the issue and later started the Resident Education About Lead
(REAL) Program.64 Cheryl Johnson, daughter of the PCR founder and a PCR leader herself, said
recently that concerns about lead continue, in part because Chicago Housing Authority
159
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maintenance staff are not trained to protect residents against dust and lead paint exposure when
they make repairs to apartment units.65
Soil Contamination
In response to community concerns—including a belief that Altgeld Gardens was built on a
former landfill—EPA conducted a site evaluation in 1996 to learn if hazardous materials
remained due to previous activity in the area. Ten surface samples were collected from the 190-
acre site from grassy areas near housing units, schools, and a community clinic. Samples were
analyzed for metals, volatile organic compounds, semi-volatile organic compounds,
polychlorinated biphenyls, pesticides, and cyanide,66
The Agency for Toxic Substances and Disease Registry (ATSDR), through the Illinois
Department of Public Health (IDPH), evaluated EPA's sampling results to determine if the
contaminants detected in the soil presented any hazards. The same levels of polycyclic aromatic
hydrocarbons (PAHs) at Altgeld Gardens are typically found in urban areas and are not known to
cause adverse health effects. Several pesticides, including DDT, were also found. Based on the
limited information, IDPH concluded there were no apparent public health hazards from surface
soil contamination at Altgeld Gardens. But IDPH recommended further study of the pesticide
contamination.67
Because preliminary studies did not show significant problems and resources and authority for
such studies are limited, no additional soil studies have been conducted.68
Northwestern University, the Chicago Legal Clinic, and IEPA are now cooperating on a project
to remove heavy metals from soil at Altgeld Gardens through phytoremediation, using plants to
"take up" the heavy metals from the soil. If the pilot is successful, a more extensive project may
be undertaken.69
Southeast Chicago Health Consultation
In 1998, ATSDR reviewed health data for adverse reproductive outcomes, asthma mortality, and
cancer rates in Southeast Chicago. The report did not identify any adverse health outcomes that
are believed to be related to environmental pollution.70
Other Issues at Altgeld Gardens
Health of Public Housing Residents
In December 1999, the Chicago Housing Authority (CHA) set up a health task force to identify
current health concerns of public housing residents and to determine strategies for addressing
them. The task force included representatives from multiple health and social service fields,
community organizations, and CHA staff. During the eight-month study, they conducted
literature reviews and analyzed health outcomes. To ensure community involvement, the task
force also held focus groups with residents of public housing.
160
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are now, and does not cover Altgeld Gardens or other residential neighborhoods within the
Calumet Region. Some areas currently zoned for manufacturing uses in the Calumet Region
would need to be rezoned to provide for reclaiming and preserving open spaces as called for in
the plan.
Chicago Department of the Environment
Chicago Department of the Environment (DoE) staff acknowledge they are not yet actively
addressing environmental justice concerns. However, DoE staff have attended EPA training
seminars to familiarize themselves with the issues.89 In addition, DoE reviewed an
environmental justice map compiled by EPA's Region V, which highlights poor and minority
neighborhoods. DoE staff may be able to plot health conditions and environmental impacts on
this map because the city already has established databases and services using a Geographic
Information System (CIS).90
DoE is working with the Chicago Department of Planning and Development (DPD) to set up
buffers between residential and commercial or industrial land uses. But in many areas of the
city, including Southeast Chicago, commercial and industrial facilities were present before the
residential uses. At least once, DoE and DPD staff have asked that additional conditions be
required for new development based on environmental concerns.91 DoE does environmental
reviews for the Chicago Housing Authority (CHA), and these reviews contain an environmental
justice component. Thus far, DoE has not been asked to do a review for Altgeld Gardens.
DoE has not done extensive community outreach, which may help to explain why African-
American community groups have limited relationships with the Department, as discussed
below. DoE relies heavily on the alderman in each district for community outreach. Each
alderman holds periodic meetings in his or her ward, and notices for these meetings are
advertised in the classified section of the Chicago Sun Times. DoE does not contact community
groups for comments during its permitting process, but relies instead on the ward's alderman to
obtain and contribute community perspectives.
Outside the permitting context, DoE has several educational and outreach programs that are at
least indirectly related to environmental justice. DoE has the staff of an entire section who are
dedicated to community programs, ranging from educating the public about health and
environmental issues to providing assistance in energy reduction, weather proofing, and
community beautification.
DoE also has a well-established brownfields program. Chicago has received grants and other
federal funding to facilitate remediation and redevelopment of numerous brownfield sites in the
Calumet Region. However, because none of the sites in Southeast Chicago have been placed on
the EPA's National Priorities List (NPL), they are not eligible for significant Superfund
funding.93
DoE is currently developing the Chicago Principles for economy, equity, and environment.
These principles will be a set of guidelines to help the city and its citizens develop a holistic,
integrated plan for the "greening" of Chicago.94 William McDonough, a national leader on
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sustainability issues, is conducting this project, supported by an advisory group of 12 local
leaders and 12 national experts.
Metropolitan Water Reclamation District of Greater Chicago
In 1889, the Illinois Legislature created the Metropolitan Water Reclamation District of Greater
Chicago (MWRD) to protect the water quality of Lake Michigan. MWRD is a separate, special
purpose government with a jurisdiction that covers the entire city of Chicago, as well as 124
municipalities in Cook County. MWRD has its own taxing authority, and its nine commissioners
are elected officials.
Among its responsibilities, MWRD manages wastewater reclamation (sewage treatment),
disposal of biosolids, the tunnel and reservoir plan for addressing combined sewer overflows,
and an industrial waste program.95
The MWRD's elected commissioners meet twice a month and approve contracts, create
policies, and determine property uses. Meetings are open to the public, and the agenda and
associated information are made available to the public in advance. Meeting notes are posted on
MWRD's website four to five days after each meeting.96
MWRD facilities near Altgeld Gardens are longstanding sources of the residents' odor
complaints. Citizens expressed their concerns about odors and frustration about government
inaction at an August, 2000 hearing, as discussed above.
MWRD says it wants to be a good neighbor and maintains that it takes odor complaints very
seriously. MRWD always checks into complaints from Altgeld Gardens. However, the exact
causes of the smells are hard to determine because the housing project is located in an industrial
area where other facilities could create odors.97 MWRD reports that it is in 100 percent
98
compliance with its water discharge permit requirements.
As an example of how MWRD is working with communities, MWRD points to a demonstration
project at the USX site in Southeast Chicago. MWRD is testing various amounts and
combinations of biosolids mixed with dirt as a method to grow plants. The objective is to prove
that the site is not barren.99
However, several individuals interviewed for this study said that MWRD has not been very
responsive to government officials or nearby residents in trying to resolve its odor problems.
Community and Environmental Group Coordination
Many community and environmental organizations are active in Southeast Chicago, but they do
not always work together even when they have common goals. In research conducted for EPA's
Region V, anthropologists Kathleen A. Gillogly and Eve C. Pinkers found differences in the
emphasis and expression of environmental concerns among groups reflecting various ethnic
groups: "Groups based in predominantly African-American neighborhoods emphasized health
and environmental justice; groups drawing from predominantly white neighborhoods spoke more
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of heritage and quality of life; environmental activists from national and regional organizations
spoke more of natural resource conservation."100
In keeping with these different emphases, white and African-American community groups tend
to have connections with very different governmental and nongovernmental agencies. White
activists are more closely connected to the federal EPA, IEPA, Chicago DoE, the National Park
Service, and outside environmental groups. African-American community groups have closer
connections to health agencies, such as the Greater Roseland Health Council and Chicago
Department of Public Health, and have not been very involved in the city's area-wide
environmental planning and land use efforts.101
Significantly, however, the groups share several common interests that could make them
powerful allies. They all want to make industry responsible to local communities, are concerned
about the health and safety of residents, and seek sustainable economic development. Table 7-1
summarizes the primary concerns of environmental groups in Southeast Chicago.
A variety of community and environmental organizations have participated in a brownfields
working group. They include the Center for Neighborhood Technology, Calumet Ecological
Park Association, People for Community Recovery, Chicago Legal Clinic, Mexican Community
Committee, Community Workshop on Economic Development, Committee for Economic
Recovery, Grand Cal Task Force, and Calumet Project for Industrial Jobs. This working group
has identified priorities for community involvement in brownfields restorations at USX South
Works, Wisconsin Steel, the southern portion of LTV Steel property, the West Pullman
brownfield cluster, and a 25-acre property south of Altgeld Gardens.102 Such initiatives could
foster greater cross-community networking.
Table 7-1 Primary Concerns of Southeast Chicago Environmental Groups
Organizations
Groups based in predominantly
white neighborhoods
Groups based in predominantly
African-American neighborhoods
National/regional organizations
Common interests
Primary Concerns
Aesthetics
Heritage
Quality of life
Local control over places
Environmental justice (fairness, equality)
Health, removal of toxins
Jobs and economic development
Conservancy
Preservation of natural resources as a resource for all
Making industry responsible to local communities
Health and safety of residents
Sustainable economic development
Source: Adapted from Gillogly, Kathleen A., and Eve C. Pinsker. Networks and Fragmentation Among Community
Environmental Groups of Southeast Chicago (U.S. Environmental Protection Agency, Region V. June 5, 2000).
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LAND USE PLANNING, ZONING, AND GOVERNANCE IN CHICAGO
City Governance
Form of Government
Chicago has a Mayor-Council form of government. The Mayor is the chief executive, and the
City Council is the legislative body. The Mayor is elected city-wide, but the 50 Council
members—called aldermen—are elected from neighborhood wards, whose interests they protect.
Each alderman represents about 50,000 citizens and serves those constituents; there are no at-
large members on the Council. The Mayor presides over City Council meetings and can vote in
the event of a tie.
The City Council usually meets each month to exercise general and specific powers that have
been delegated by Illinois statute. The city takes official action by passing ordinances and
resolutions. The City Council's 19 standing committees work with individual city departments
to carry out city activities. These committees review proposed ordinances, resolutions, and
orders before they are voted on by the entire Council. The City Council votes on all proposed
loans, grants, bond issues, land acquisitions and sales, traffic control issues, mayoral appointees,
other financial appropriations, and — most relevant to this case study—zoning changes.
Role of Aldermen
Two themes came through consistently in interviews by Academy researchers with city staff:
• Chicago is a very political city, where having the right connections helps to get things
done; and
• There is also a great emphasis on local control and local services, so the aldermen have
considerable power to produce action by city departments.
On the positive side, projects can be quickly and easily accomplished with the right political
backing. Once city residents learn how to navigate the system, they can excel at getting then-
projects accomplished. If an alderman calls with an idea or concern, staff make the issue is a
priority. Because the entire City Council votes on some issues, there are numerous layers of
process to ensure balanced and fair service delivery. On the downside, citizens who are not
politically active or engaged do not prosper and have difficulty obtaining solutions to their
problems. However, city staff believe all city residents know they need political connections in
order to obtain city services.
Chicago's ward structure affects how things get done, as well as how people organize to get
them done. Activists know exactly where to go when the problems are straightforward — such
as garbage collection or street repair — and can expect prompt results. But complex problems,
like environmental justice, take a longer time for city staff to understand and address. The
resulting delays may be seen by local residents as the government's failure to take action:
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In the ward structure, it is quite straightforward. If you need something like better
garbage pickup, more patrol cars, or streets paved, you take it to the alderman
(often via a contact such as a precinct captain)....It is a system that provides a
sense of control in terms of a high degree of understandability in marked contrast
to environmental issues, which can take a much longer period of time to resolve,
because of the profound nature of pollution, the lower visibility of pollution, and
the difficulties of enforcing federal rules and regulations. When local
environmental problems are not immediately resolved, local people may be
inclined to look for political reasons for this.104
Land Use Planning in Illinois
State Planning Laws
There is no Illinois law requiring local land use planning, but municipalities may voluntarily
create a planning commission, planning department, or both. While the state has no oversight or
control for local planning and zoning, the Illinois Department of Commerce and Community
Affairs is authorized to provide education and training programs in planning, regulatory, and
development practices and techniques that promote sound comprehensive planning. In addition,
the Department is authorized to develop and distribute model ordinances, manuals, and other
technical publications.
A new state law, which took effect in August 2002, provides incentives for local governments to
undertake comprehensive land use planning.106 To receive technical assistance grants, local
planning agencies must address several elements in their new or revised comprehensive plans.
Among the elements are land use, transportation, community facilities, telecommunications
infrastructure, housing, economic development, and public participation. See Appendix G for a
more detailed description of Illinois' land use planning authorities.
Chicago's Department of Planning and Development
Chicago's Department of Planning and Development (DPD) prepares land use plans for the city
and reviews plans for large developments. DPD also proposes all local land use laws, such as
changes to the zoning code.107 The last city-wide planning document for Chicago was the
Comprehensive City Plan of 1946.108 Planning is now decentralized in DPD's seven
Community Development Planning Districts.
DPD promotes economic development in Chicago by offering financial resources, such as low-
interest loans and tax increment financing, as well as other business services. DPD is also
responsible for preserving the city's architectural and historical landmarks, protecting the
Chicago River and Lake Michigan shorelines, and creating new public open space for city
residents, workers, and visitors.109
DPD develops strategic plans for specific urban redevelopment projects, such as Empowerment
Zones (a program of the U.S. Department of Housing and Urban Development) and Tax
Increment Financing Districts.110 These plans generally outline development regulations for a
neighborhood. The strategic plans contain area-wide designs that include recommendations for
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open space, transportation, and infrastructure improvements. DPD also prepares capital
improvement plans, updated every five years, which are road maps to infrastructure
improvements.
Two DPD programs are designed to encourage and retain businesses: Industrial Corridors and
Enterprise Zones. Under the Industrial Corridors program, local community and business leaders
develop plans for making the corridors safe, accessible, functional, competitive, marketable,
manageable, and attractive.111 State and local tax exemptions, investment tax credits, several tax
deductions, and other incentives are available to companies locating or expanding within an
Enterprise Zone.112 In keeping with plans for economic revitalization in the region, the Calumet
Industrial Corridor113 and Illinois Enterprise Zone 3114 are near Altgeld Gardens.
DPD's Zoning and Land Use Planning Division creates long-term land use plans, evaluates
planned developments, and reviews zoning amendments and special uses. It also conducts
economic research and analysis to support department programs and activities.115 The Zoning
Division employs a team of inspectors who conduct daily inspections made in response to
complaints from citizens and aldermen from all around the city.116
In DPD's seven planning districts, teams provide a focal point for anticipating and meeting the
development needs of Chicago's neighborhoods. The team works closely with residents,
community groups, businesses, and elected officials to provide coordinated and appropriate
solutions to neighborhood problems. Assistance ranges from information and referral to technical
assistance, program support, and local planning.117
Local Planning for the Far South Planning District
Altgeld Gardens is located in the Far South Planning District. Population density in the district
is comparatively low, mostly due to its large number single-family homes, many vacant
properties, and extensive industrial lands. As discussed above, the District is also known for its
wetlands and natural areas surrounding Lake Calumet and the Calumet River.118
District planning officials say that Altgeld Gardens was built before the dumps and landfills
arrived. Heavy industry was already in the area, but not near the housing project until the 1960s
and 1970s. Spot zoning by the local aldermen played a role in developing the area surrounding
Altgeld Gardens, Now, half of the industrial operations that used to surround Altgeld Gardens
have closed. While in the past, haphazard development was allowed to happen, planners say the
city now has regulations in place that should prevent similar situations from happening again.119
The Far South Planning District has two planning teams: community planners and industrial
planners. While they do collaborate, the community planners primarily work with neighborhood
planning and the industrial planners work on redeveloping industrial areas. District planners
work primarily with four constituent groups: Community Development Corporations (CDC),
individuals, developers, and churches (which are becoming increasingly active in development
matters). In addition to the District's professional staff, there are advisory groups for special
redevelopment areas. Within the Far South District, there are internal standing committees on
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design, site selection, evaluation, and landscape ordinance coordination. These committees are
made up of appointed individuals who are intended to represent diverse viewpoints.120
The planning district holds regular meetings that are open to the public. Notices about the
meetings are sent via FAX to community groups and interested individuals. The local
alderman's staff also help DPD by communicating with local residents. DPD staff attend
community meetings when requested. While outreach is not a routine activity, the DPD does
some outreach as new projects come along and is required to mail out information regarding Tax
Increment Finance districts.121
Calumet Area Land Use Plan
The Calumet Region—which includes Altgeld Gardens—is currently slated for economic
revitalization and environmental improvements. The Calumet Area Land Use Plan, issued in
December 2001, sets out a vision for taking advantage of the region's unique wetlands and
natural areas as well as the vacant industrial lands that are ripe for redevelopment. The plan was
developed by DPD in partnership with DoE and three non-governmental organizations: the
Southeast Chicago Development Commission, Openlands Project, and Calumet Area Industrial
Commission. Two federal agencies, EPA and the U.S. Forest Service, helped to fund
development of the Region's land use plan.122
The goals of the plan are to improve the quality of life in the Calumet Region by creating greater
economic opportunity and enhanced environmental quality, retaining and enhancing existing
businesses and industry, attracting new industrial and business development, and protecting and
enhancing wetland and natural areas.123
The plan provides an overview and vision for 1,000 acres of industrial and 4,000 acres of open
space in a portion of the Far South Planning District. Because half of the industries located in the
Calumet Region have closed, the city is looking for ways to attract new businesses to the area so
they will provide local citizens with badly needed jobs and services.124 The plan also calls for
reclaiming former landfills as open space for habitat and recreation.125
Many agencies, organizations, and individuals helped to develop the Calumet Land Use Plan, but
most were representatives of government agencies. Some local elected officials and
representatives of several environmental and a few community organizations are listed in the
plan as having participated in focus groups.126 But otherwise, Altgeld and other local residents
did not have much involvement in preparing the plan.
The land use map published with the plan delineates five major land uses for the Calumet
Region: industrial, public open space (for recreation), open space preservation (for wildlife
habitat), open space recereation (for recreation), and open space reclamation (reclaimed for
recreation from previous waste management sites).
The plan does not address Altgeld Gardens or any other residential neighborhoods under the
assumption that residential neighborhoods will remain in place where they are now. It is unclear
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whether, in attracting new business and industries to the area, the planners considered the
potential health and environmental impacts on surrounding neighborhoods.
Altgeld Gardens is at the southern end of the Calumet Region and, according to the land use
map, all five land uses would be located within a mile of Altgeld Gardens. However, as noted
below, the Calumet map—which includes several areas of open and recreational space near
Altgeld Gardens —is not consistent with the current zoning of the area, which still allows for
primarily manufacturing uses. Thus, zoning changes will be needed to implement the Region's
plan.
Zoning in Chicago
Roles and Responsibilities
Three government agencies have primary roles in Chicago's zoning decisions. DPD and the
seven planning districts prepare land use plans for the city. DPD also reviews plans for large
developments and proposes all land use laws, such as changes to the zoning code. The DPD's
Department of Zoning enforces zoning laws, mostly through advance plan approval and
inspections thereafter. The City Council must approve all changes to zoning ordinances, but
aldermen are usually given great discretion in zoning matters for their wards. Table 7-2
summarizes the role of various players in zoning decisions.
Zoning Districts
Chicago is divided into four basic types of zoning districts and many sub-districts. There are
also some special districts and planned manufacturing districts.
• Residential districts are primarily intended for residential uses; some
commercial and retail businesses may also be allowed.
• Business districts include offices and retail uses, and sometimes residential
uses.
• Commercial districts include offices, facilities for the sale of goods and
services, residential buildings, and a limited number of manufacturing uses.
• Manufacturing districts house industrial facilities like factories or warehouses
and some commercial uses. Industrial uses in the Ml and M2 subdistricts are
limited to those which do not bother their neighbors. M3 subdistricts house
businesses that might bother their neighbors. The performance standards for
nuisances like noise, vibration, smoke, and odors differ among the three
districts. Noise and vibration levels can be higher in M3 districts than in Ml
districts.128 All manufacturing facilities must comply with the air quality
requirements in the Chicago Municipal Code.129
The penalty for violating the zoning code is $500 for each offense or day in violation, and
violators must also take remedial action to correct the infraction.
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Current Zoning Reforms
Chicago is now conducting a comprehensive revision of its zoning code, which has been in place
since 1957 but has been changed piecemeal ever since. In 2000, Mayor Richard M. Daley called
for this overhaul of the city's zoning code. His goals are to insure the stability of residential
property values, maintain affordability of housing, provide vital retail areas, promote more
transportation choices, and ensure parks and open spaces throughout Chicago.
The Mayor appointed a Zoning Reform Commission made up of aldermen, planners, architects,
bankers, and nongovernmental organization (NGO) representatives to develop the revised
code.131 However, none of the NGO members seem to represent local community-based or
environmental justice organizations.
The Zoning Reform Commission plans to finish its work in the summer of 2003. Once
completed the proposed new zoning maps and other changes will be presented to the entire City
Council for a vote.132
Table 7-2 Players and Roles in Chicago's Zoning Process
Player
Residents
and Business Owners
Developers
and Property Owners
Zoning Department Staff
Zoning Administrator
Department of Planning
and Development Staff
Plan Commission
Aldermen
City Council
Role in Zoning Process
Offer comments and recommendations to developers and
aldermen on development proposals, either at public hearings
or through block clubs/community groups. Citizens can
submit proposed zoning amendments through the City Clerk.
Submit applications, advocate for the proposed project,
provide information on development for other players.
Usually hire any architects and lawyers involved.
Reviews compliance for "as of right" zoning applications,
prepares recommendations for other applications, and keeps
records.
Hears requests for exceptions to zoning requirements.
Issues recommendations to Plan Commission, develops plans
for city areas, provides staff support to Zoning Board of
Appeals and Plan Commission.
Reviews applications for Planned Developments, including
Planned Manufacturing Districts.
Reviews all developments in her/his ward, and offers or
supports zoning amendments.
Votes on all amendments to zoning ordinances.
Source: Adapted from Metropolitan Planning Organization, Revise, Recreate, Rezone: A Neighborhood Guide to
Zoning,2QQl.
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Public Participation in Zoning Reforms
The Zoning Reform Commission has actively solicited public participation. In 2000, they held
seven community meetings in neighborhoods across Chicago, followed in 2001 with six public
workshops on specific zoning issues. Participants represented more than 300 business and
community organizations.133
The non-profit Metropolitan Planning Council (MFC) is also actively engaged in helping citizens
and neighborhood groups understand and influence Chicago's zoning reform process. They have
developed plain-language guides and made presentations to community organizations about the
proposed zoning reforms. In addition, the organization conducted community forums and
workshops to solicit public comment on the rezoning effort.
Focus group participants expressed concerns and made recommendations on two issues that are
particularly relevant to environmental justice, transitional areas between industrial and non-
industrial uses and public participation in the zoning process:
• Transitions at the edge of some industrial and non-industrial areas provide insufficient
protection. Focus group participants recommended requiring landscaping and setbacks
from industrial districts and creating transition requirements in manufacturing districts
that match existing standards for Planned Manufacturing Districts.
• Communicate better and provide greater opportunities for neighborhood participation in
the development review process. Focus group participants recommended expanding
current notice requirements, which are now mailed only to property owners within 250
feet of the property in question, to all neighborhood organizations and residents that
indicate interest in specific properties or areas of Chicago. They recommended
establishing neighborhood contact requirements for development proposals of a certain
scale, so that neighborhood organizations would have an opportunity to request an
informational meeting before the city's review. They also recommended improving the
public notification process by posting announcements in public spaces.135
Performance Standards for Manufacturing Districts
Chicago's zoning ordinance establishes performance standards for noxious, odorous matter in
areas zoned as manufacturing districts, as much of the land near Altgeld is zoned (see below).
Smoke and Particulate Matter. All land uses established after May 1, 1959, must comply with
the city's requirements governing air pollution and waste management, as set out in Chapter 11-4
of the Municipal Code of Chicago.136
Odor. There are increasingly stringent performance standards in Ml to M5 manufacturing zones
for amounts of odor that can be detected along property lines. For all manufacturing zones,
emissions of noxious odors that are detrimental to or endanger public health, safety, comfort, or
welfare are considered public nuisances and are unlawful.137
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Toxic Matter. For all manufacturing districts, toxic matter cannot be discharged beyond the
property line in concentrations that can be detrimental to or endanger foe public health, safety,
comfort, or welfare or cause injury or damage to property or business.
Significantly, however, neither performance standards applies to odors or toxic matter from land
uses that were in already in place at the time the revised ordinance was adopted.
Zoning Near Altgeld Gardens
On the current zoning map, most of the area near Altgeld Gardens is zoned NO, or heavy
manufacturing.140 There are also a few Ml (restricted manufacturing) and M2 (general
manufacturing) districts, as well as a Planned Manufacturing District in the vicinity of Altgeld
If the Calumet Area Land use Plan is implemented, some of the area near Altgeld Gardens would
be changed from manufacturing uses to open space, as discussed above.
ENVIRONMENTAL PERMITTING
Illinois Environmental Protection Agency
The Illinois Environmental Protection Agency (IEPA) administers the state's environmental
protection programs. EPA has authorized IEPA to administer most aspects of the federal air,
water, and hazardous waste programs.
. State Environmental Permits
The key categories of environmental permits issued by IEPA are: air pollution control permits
for constructing and operating a source of air emissions; water pollution control permits for
discharges into water, pollution control equipment, and operating permits; and land permi s tor
waste treatment, storage, or disposal. Proposed and final environmental permits for Illinois
facilities are available to the public online at a website maintained by EPA Region v.
• Emissions Reduction Credit fERO Bank
In 1995 IEPA began trading air pollution credits under the federal Clean Air Act. Through the
ERC bank DoE helps businesses that want to build or expand meet federal and state regulations
for volatile organic chemicals (VOCs) by obtaining emissions credits for the amount of new
emissions they will create. According to IEPA, the ERC bank will reduce air pollution because
when a business uses its credits, it must also commit to retire 30 percent of the credits which are
given to the state and never used again. Companies participating in the ERC bank must also
complete an environmental project that benefits the community.
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Environmental Justice Policy
ic , °n a Draft Interim Environmental
Policy. In addition to designating an Environmental Justice Officer for IEPA and an
advisory group, the policy sets out the following objectives:
• Ensure that communities are not disproportionately impacted by degradation of the
* less-than-e IEPA will sometimes hold
informational hearmgs to inform the public about a proposed action or to gather information
comments from the public before making a final decision L145 miormation
or
or
For permitting actions where environmental justice concerns are raised, IEPA will look at the
°ther aikWe information to Assess whether there are potentially
' If thele m any SUch P°tential adverse icts, the
K an assessment or assess these impacts using the information and tools
reasonably available and within the time constraints allowed by applicable state and fedTral Yaw
The assessments will be made available to the public and other affected persons or entmes aTd
an appropnate agency response will be made based on these assessments.
Local Siting Process
The Illinois Environmental Protection Act of 1970 also includes a local siting process for
contro1 facility is defined as
A , v Stati°n' Waste toatment facili^ "waste
A developer who wants to build a new landfill or other pollution control facility
must get the approval of the local siting authority-either the county board in unincorpo 2
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areas or the governing board of a municipality. IEPA will not review a permit application for
one of these facilities until the local body has approved its location.147
Local governments may base their decision about the suitability of a pollution control facility
only in accordance with specified criteria. Several of the criteria would allow for consideration
of environmental justice concerns. The local government may consider whether;
• The facility is designed, located, and proposed to be operated so that the public health,
safety, and welfare will be protected;
• The facility is located so as to minimize incompatibility with the character of the
surrounding area and to minimize the effect on the value of the surrounding property;
• The traffic patterns to and from the facility are designed to minimize the impact on
existing traffic flow; and
• If the facility will be treating, storing, or disposing of hazardous waste, an emergency
response plan for the facility will be developed to include notification, containment, and
evaluation procedures to be used in case of an accidental release.148
Within the city limits of Chicago only, local zoning and land use requirements can also be
applied as criteria for siting decisions.1
Additional public participation requirements are designed to assure adequate outreach to the
local community. The applicant must notify certain adjacent property owners and members of
Illinois' General Assembly from the legislative district in which the facility is to be located. The
applicant must also notify the general public through publication of a notice in a newspaper. At
least one public hearing must be held, and any person may comment on the proposed facility.150
Chicago Department of Environment
Permits
Chicago's DoE ensures compliance with and enforces air quality laws in the city. Additionally,
the DoE issues permits and conducts inspections at more than 2,100 industrial facilities to ensure
they are in compliance with laws and regulations.151
DoE issues air quality permits for such activities as installation of pollution control equipment,
incinerators and afterburners, dry cleaning equipment, and spray booths in auto repair shops.
DoE also issues permits for waste disposal facilities, such as landfills, transfer stations,
junkyards, liquid wastes, and rock crushers, and IEPA has delegated authority to DoE for issuing
permits of underground storage tanks.152
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Enforcement
DoE enforces the municipal code and, through delegation agreements, also enforces some state
and federal environmental laws. DoE inspectors write tickets for violations, file inspection
reports, gather evidence, and provide court testimony. DoE's enforcement programs cover
landfills, transfer stations, recycling facilities, junkyards, and rock crushing facilities, illegal
dumping, asbestos demolition and construction, odor complaints, air emissions, recycling,
removal and management of underground storage tanks, and response to emergencies involving
1 f't
hazardous materials.
Public Participation
DoE relies heavily on the alderman in each ward to disseminate information about proposed
permits. Notices of alderman meetings are placed in the Chicago Sun Times, and the meetings
are held in the appropriate alderman's ward. DoE generally does not use community groups to
participate in the permitting process, relying mostly on the aldermen to provide the local
* 154
perspective.
ANALYSIS AND RECOMMENDATIONS
Leadership and Accountability
The Calumet Region of Southeast Chicago has the potential to become a positive example of
sustainable development where the Region's economic revitalization is tied to enhancement of
the natural environment. If this vision becomes reality, residents of Altgeld Gardens—along
with other citizens in the Region—will realize improved environmental conditions as well as
greater economic opportunities. To turn around both the negative image and the reality of the
Region's contamination, however, leadership and coordination among many agencies and
organizations that are not accustomed to working together will be necessary. They must also
embrace the concept of achieving environmental justice, so that economic development
opportunities are not produced at the expense of people who already face disproportionate risks
from environmental threats.
Community activists, such as the People for Community Recovery based at Altgeld Gardens,
have brought attention to the environmental and health problems of residents in Southeast
Chicago. By educating citizens and creating political pressure, community groups have
produced positive results, such as a moratorium on landfills, enforcement actions against
violating facilities, and a demand for "green" industry as part of economic redevelopment plans.
Community-based organizations and environmentally-focused organizations share common
goals with regard to environmental improvement coupled with economic development. A
coordinated effort by these groups to work on their common goals could be a powerful engine
for ensuring action on problems at Altgeld and the rest of the Calumet Region.
Local agencies should adopt policies to ensure environmental justice, and should incorporate
active community involvement and careful evaluation of potential health and environmental
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impacts in their decision-making processes. These agencies also need to coordinate, so that their
collective resources can be used most effectively.
Unfortunately, responsibility is split among several autonomous organizations. Most notably,
the Metropolitan Water Reclamation District (MWRD) is managed independently by its own set
of elected officials, and is not under the jurisdiction of the City of Chicago. According to local
officials and federal staff interviewed for this project, MWRD has generally not been very
cooperative with other agencies. Odor problems at its sewage treatment and sludge drying
facilities are central to the environmental justice concerns at Altgeld Gardens, and odor is
considered a major impediment to attracting new industry and recreation in the area. Federal,
state, and local agencies should carefully and creatively examine all their authorities to see
whether a legal solution to this ongoing problem can be found.
Chicago's Department of the Environment (DoE) does coordinate with the city's Department of
Planning and Development (DPD) on new development. DoE reviews the environmental impacts
of new land uses and development and makes recommendations regarding consistency with
existing requirements. More recently, DoE has been working with the Department of Zoning to
draft new zoning guidelines. The zoning guidelines will include requirements for noise and view
barriers and measures to keep from having a heavy industrial area next to a residential area.155
DoE also conducts environmental reviews for the Chicago Housing Authority (CHA). But
more coordination is needed. For example, DPD does not coordinate with the Chicago
Department of Health.156 DPD staff say the health department focuses on people and social
factors, while they are focused on physical land use planning.157 This narrow focus does not
recognize the need to make sure that public health concerns are addressed by land use plans.
City staff emphasized the central role that the ward aldermen play in delivery of services and in
getting things done. Their leadership and involvement is essential to success in dealing with the
environmental and economic problems of Southeast Chicago and Altgeld Gardens. Community
and environmental groups that gain the support of the local aldermen have a greater chance of
getting attention and action on their issues. Aldermen play an important role with regard to
zoning issues as well. All requests for zoning changes must be approved by the City Council,
and the Council normally follows the recommendation of the alderman for the ward where
changes are proposed.
Thus far, it is unclear whether or how Chicago's current zoning reforms will address
environmental and public health threats, particularly where manufacturing districts are located
near residential districts. The city should ensure that its comprehensive new zoning code and
maps consider these impacts and that there are adequate safeguards. Grandfather clauses in the
current zoning ordinances—which cloud the city's authority to enforce odor, smoke, and toxic
matter requirements when uses that pre-dated the ordinances— should be eliminated in the new
code.
While DoE staff acknowledge the particular concerns of people-of-color and low-income
communities, they do not have a goal, policy, or specific program for addressing environmental
justice. However, DoE staff have received environmental justice training from EPA's Region V,
which has sparked ideas for addressing environmental justice in city programs. At the time this
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report went to press, IEPA was circulating for comment a draft Interim Environmental Justice
Policy.158 The draft policy sets out the state agency's intent to consider disparate impacts in its
permitting and other decisions and to ensure fair and equitable delivery of services. However,
the policy would apply only to IEPA and not to other state agencies, and it is unclear how this
state policy might affect the environmental authorities that IEPA has delegated to Chicago's city
agencies.
Permitting and Planning and Zoning Authorities
Plans for revitalizing Southeast Chicago call for sustainable, environmentally sound economic
development and enhanced natural resources. If this vision can be implemented, residents of
Altgeld Gardens and neighboring communities will benefit from increased economic
opportunities, as well as a healthier and more attractive environment.
Permits can play a critical role in minimizing otherwise adverse impacts of facilities.
Community and environmental groups can work with government agencies and businesses
during the permitting process—including the permit renewal process for existing facilities—to
ensure that facilities employ pollution prevention practices wherever possible and use the most
effective pollution control techniques when prevention is not possible. Permits can also require
facilities to manage their noise, odors, and traffic so that they will be good neighbors in the
community.
Depending on the type of permit involved and whether the program has been delegated (air,
water, waste, or multiple permits), IEPA and/or Chicago's DoE will have the lead permitting
responsibility. Even where the city has direct responsibility for issuing permits, however, IEPA
needs to provide technical and other expertise if needed. lEPA's proposed environmental
justice policy is designed to ensure that the agency's permitting and program decisions do not
have a disparate impact on people-of-color or low-income communities. lEPA's environmental
justice coordinator and Office of Community Relations can be a valuable source of support for
Chicago's efforts to deal with environmental justice issues where city agencies implement
environmental programs. One area that should be carefully monitored is implementation of the
Emissions Reductions Credit bank, to ensure that no local VOC "hot spots" emissions result
from trading emission credits.
Chicago has made a political commitment to economic development that will protect the
environment and public health, and the city's new zoning reform effort includes environmentally
sound development as a goal. Other signs of the city's commitment are the stated goals and
objectives of the Calumet Regional Land Use Plan and the effort underway to develop a policy
on "green" industries.
Although additional economic development in Southeast Chicago may be a desirable goal,
questions remain whether it can be accomplished without further exacerbating the health and
environmental threats that area residents already face. To ensure that proposed projects are
acceptable to the community and prevent or strictly control pollution, the decision-making
process must include careful evaluation of potential impacts as well as active involvement of
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environmental justice and community-based organizations. Some new projects simply may not
be appropriate for the Region.
Already, community groups and environmental organizations are working with federal state and
city agencies, as well as with private developers, to make sure that new businesses at
redeveloped brownfields and old industrial sites will be environmentally sound. Government
agencies and community groups can encourage new or expanding businesses to use pollution
prevention practices, employ the most effective techniques for pollution control where
prevention is not possible, and take steps to be good neighbors by addressing potential noise
traffic, and aesthetic concerns.
Clearly, it is not sufficient to have environmental permit conditions and ordinances on noise and
odor. There must also be effective monitoring and enforcement to ensure that these requirements
are being met. As in the permitting process, community groups and environmental organizations
must work together in holding government agencies and industry accountable for compliance
with permits, land use plans, and zoning and other local ordinances.
Setting Priorities and Reducing Risks
It is well established that residents of the Calumet Region face multiple environmental and
public health threats. Nearly all of the Southeast Chicago neighborhoods are overwhelmingly
African-American or have mostly people-of-color populations, with strong concerns about
environmental justice.
Once home to many thriving industries, Southeast Chicago must now deal with the fact that
many of its industries have moved away, leaving behind a legacy of contaminated land and
possibly ground water contamination. Thousands of acres of vacant land await redevelopment
yet some of the facilities that remain still produce high levels of particulate matter and toxic
emissions, giving the region significant air pollution problems and placing it in nonattainment for
particulate matter.
The entire Calumet Region is a high priority for Chicago's economic and environmental
improvement. Several efforts are underway to foster environmentally sound development that
will help to address both concerns, and will benefit local residents and all of Chicago. For new
facilities, zoning rules and environmental reviews can ensure proper use of buffer zones between
residential and commercial or industrial land uses; and the permitting process can promote
pollution prevention and ensure appropriate pollution controls are installed. Done correctly, the
redevelopment effort could become a model of sustainable development for other Rust Belt
communities.
Mitigating the impacts of existing pollution is especially difficult. The few studies about the
health impacts of possible cumulative exposures to contaminants have been inconclusive, leaving
no one satisfied. Citizens are tired of complaining but not obtaining any government action, and
government agencies cannot take action without very specific data to support proposed solutions
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Nevertheless, a number of steps can be taken in the near term to help reduce environmental
exposures and risks to local residents. IEPA and Chicago DoE, with assistance from EPA as
appropriate, should develop and implement a strategy that includes the following actions:
• Monitor all facilities in the Calumet Region for compliance with environmental permit
and other requirements, and take appropriate enforcement actions to bring them into
compliance if they are not;
• For existing facilities, use the permit renewal process to solicit community perspectives
about the facility and incorporate new permit conditions that address their concerns;
• Develop and implement a strategy to address the odor issues that are a primary concern
of Altgeld and other area residents, as well as a barrier to business development, by:
o Actively involving citizens in developing and implementing the strategy, such as
by using focus groups and including citizen representatives on odor panels; and
o Exploring creative and aggressive use of existing legal authorities at all levels of
government—such air, water, and waste laws as well as general health and
welfare and nuisance statutes—to ensure that odors are controlled through
effective management practices and installation of appropriate, cleaner
technologies;
• By using analytic tools, modeling, and sampling, assess the potential health impacts of
cumulative exposures to contaminants in particular communities such as Altgeld
Gardens;
• Identify and address sources of contamination that are most likely to be responsible for
health impacts by ensuring compliance with current requirements and re-opening existing
permits if necessary to reduce risks; and
• Provide education and training to local residents on risks such as asbestos, lead paint, and
pesticides to prevent or mitigate household exposures.
Public Participation
Public participation and community outreach efforts by Chicago agencies appear to be minimal,
at best For each neighborhood, public participation depends almost entirely on the local
aldermen Staffs of both Chicago DoE and DPD said they rely on the aldermen's offices to do
most of the outreach to community residents. DoE staff said they generally do not use
community groups in the permitting process, relying mostly on the aldermen to get the local
perspective on city permits. IEPA does more extensive community outreach on its air, water,
and waste permits. Building on the agency's long-standing community relations program,
lEPA's draft Interim Environmental Justice Policy sets out steps to ensure public participation m
permitting and other actions that may have environmental justice implications. In addition to
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working with host communities to identify potential issues, IEPA will hold meetings in and
around the affected communities before taking action.
Regarding land use decisions, the recommendations of the local alderman on proposed zoning
changes are generally approved by the City Council. Consequently, aldermen have substantial
influence with regard to both permitting and land use decisions. While alderman are elected
officials and must be responsive to the concerns of their constituencies if they wish to be re-
elected, Chicago's DPD and DoE could, and should, do more to reach out to affected
communities regarding proposed decisions.
Chicago's current efforts to adopt comprehensive zoning reforms provide a unique and critical
opportunity to ensure that environmental justice concerns are addressed. Ordinances controlling
the activities that can be conducted in each type of zoning district and requirements for set-backs
and aesthetics in transition areas between manufacturing and residential districts can be
improved. Controls on such community concerns as noise, odor, toxics, smoke, and traffic can
be strengthened. Penalties for violations can be increased above the current $500.
Focus group participants discussing Chicago's current zoning reforms have highlighted the lack
of adequate public participation as a key defect in the city's zoning process. Currently only
property owners within 250 feet of a proposed zoning change must receive a written notification.
This notification requirement clearly leaves out renters and others who live beyond the 250-foot
line but may still be affected by the proposed change. To improve public outreach, these focus
groups have recommended developing lists of neighborhood organizations and residents who
have expressed an interest in specific properties or areas of Chicago to receive notices of
proposed zoning changes. They also suggested establishing a neighborhood contact requirement
for development proposals of a certain size, so that neighborhood groups could request a meeting
in advance of the city's decision.
The first key step is to ensure an adequate public participation in the zoning reforms. While
Chicago has conducted some outreach about the process, and the public has been invited to
comment on draft materials, the real test will be the extent to which the city actively engages—
and listens to—the public when preparing the proposed new zoning maps.
RECOMMENDATIONS
Recommendation 1. Chicago should ensure that its current effort to adopt comprehensive
zoning reforms addresses community and public health concerns, and should plan and carry out
extensive public outreach and participation on the zoning reforms, particularly with regard to
proposed revised zoning maps. The reformed zoning code should:
* Require explicit consideration of public health and environmental impacts for all
proposed land uses;
• Strengthen controls on noise, odor, toxics, smoke, and traffic and make them apply to
both existing and future activities;
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• Incorporate set-backs, barriers, and other aesthetic measures in transitional areas between
manufacturing and residential districts;
• Increase penalties for code violations; and
• Broaden public participation to include written notification of proposed zoning changes
for all interested individuals and organizations, not just to adjacent property owners.
Recommendation 2. Chicago's plans for economic redevelopment, such as the Calumet Area
Land Use Plan, must be implemented in a way that does not adversely impact neighboring
residential districts. Strict enforcement of current requirements and fostering pollution
prevention measures can reduce impacts from existing facilities. With regard to new facilities,
the city must carefully consider the potential for disparate impacts on low-income and people-of-
color communities and accept only new developments that do not exacerbate already poor
environmental conditions or expose neighboring residents to increased pollution.
Recommendation 3. Officials of federal, state, and local agencies and local political leaders
should work with community representatives to develop and implement a strategy that will
address the odor issues faced by residents of Altgeld Gardens and other Southeast Chicago
neighborhoods. The strategy should:
• Give first priority to resolving the long-standing odor problem at the Metropolitan Water
Reclamation District's wastewater treatment plant and sludge drying facility;
• Provide for an aggressive and creative review of each jurisdiction's respective legal
authorities—including general welfare and nuisance laws plus water, air, and waste
disposal regulations—to find an enforceable solution; and
• Foster good neighbor dialogues between facility operators, representatives of community
organizations, and government officials.
Recommendation 4. Chicago agencies should expand their public participation efforts and
actively reach out to community-based and environmental justice organizations when making
permitting, planning, and zoning decisions. They should also ensure that these organizations are
represented on advisory panels and focus groups. The Illinois Environmental Protection Agency
should fully implement its Interim Environmental Justice Policy, and help Chicago's planning
and environmental agencies to develop and implement comparable policies and practices.
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ENDNOTES
Katherine Greenberg, Director of Public Information, Chicago Housing Authority, Interview (August 10,2002).
Besy Mendelsohn, Rustbelt Hell or Redevelopment Heaven? Lake Calumet: Land of Contrast (Chicago: Illinois
Sierra Club). Available at (visited
April 2003).
An estimated 85 percent of Chicago was racially segregated in 1940. Restrictive covenants barring African
Americans from owing or renting homes were in place in some neighborhoods. R.W. Brooks, Covenants and
Conventions, Northwestern University Law School, 20 (April 2002).
Available at (visited May 2003).
4 Hirsch, Arnold R. Making the Second Ghetto: Race and Housing in Chicago, 1940-1960. (Cambridge University
Press, 1990).
Chicago Sun Times, Census summary for Chicago neighborhoods, based on U.S. Bureau of the Census data for
2000. Available at (visited June 2003).
6 Chicago Housing Authority, Draft Plan for Transportation FY2003, (September 1, 2002).
7 U.S. Bureau of the Census, 2000 data for Chicago.
8 Chicago Housing Authority, Draft Plan, 69.
9 Katherine Greenberg, Interview (August 10,2002).
10 Chicago Housing Authority, Draft Plan, 85.
11 Frank Sennett, "An Urban Refusal," The Neighborhood Works, 9-13 (October/November 1993).
12 Jim Motavalli, "Toxic Targets Polluters That Dump on Communities of Color Are Finally Being Brought to
Justice," E-Magazine (July-August 1998).
13U.S. Environmental Protection Agency (EPA), Envirofacts Data Base (undated.) Available at
(visited July 2003).
Kathleen A.Gillogly and Eve C. Pinsker, Networks and Fragmentation Among Community Environmental Groups
of Southeast Chicago (EPA Region V, June 5, 2000). Available at
(visited July 2003).
Julia Parzen, Calumet Region—Concerns and Liabilities, Progress and Assets, Gaps and Opportunities, Physical
Infrastructure Section (South Metropolitan Regional Leadership Center at Governors State University, January 31,
1997). Available at (visited July 2003)
16 Ibid.
17
Chicago Department of Planning and Development, Calumet Area Land Use Plan (December 2001)
18 Ibid. '
19
Ibid.
20 Juanita Charlton, Assistant Commissioner; Kathleen Dickhut, Planner; and Marilyn Engwall, Planner; Far South
Planning District, Chicago Department of Planning and Development, Interviews (September 9, 2002).
Ibid.
Cara Jepsen, "Retooling South Works," The Neighborhood Works, 17 (February/March 1995).
23 Illinois Department of Energy and Natural Resources and Nature of Illinois Foundation. The Changing Illinois
Environment: Critical Trends, 15 (1994).
Illinois Department of Energy and Natural Resources, Hazardous Waste Research and Inspection Commission,
Pollutant Transport to Lake Calumet and Adjacent Wetlands and Surrounding Overview of Regional Hydrolosv
RR-50 (September 1990).
5 Gallogly and Pinsker, Networks.
Chicago Sun Times, Census summary.
Environmental Defense Fund, Scorecard, website, . Information is drawn from the
EPA's most current data in the National Scale Air Toxics Assessment (1996), and emissions may have changed
since then. Data was drawn for zip code 60827 that covers Altgeld Gardens.
28 Ibid. Information is drawn from EPA's National Emissions Trends and Aerometric Information Retrieval System
29 Ibid. y
30 Ibid. Data is drawn from EPA's 2000 Toxic Release Inventory database.
Ibid. Rankings are based on household and demographic information from the 1990 Census as well as statistical
sampling.
32 Ibid. Data is drawn from EPA's TMDL Tracking System and Index of Watershed Indicators.
Mardi Klevs, Chicago Regional Team Manager, EPA, Interview (May 23, 2003).
183
31
33
-------
34Jim Motavalli, "Toxic Targets."
35 Ibid
36 Ibid.
37 Alfred Aaron vs. Chicago Housing Authority, No. 99 L 117388, Circuit Court of Cook County, Illinois, County
Department, Law Division.
38 Cheryl Johnson, People for Community Recovery, Interview (September 10,2002).
39 Xavier University, "Deep South Center for Environmental Justice," website, < http://www.xula.edu/dscej>
(visited July 2003).
40 Mardi Klevs, Interview (January 16, 2003).
41 EPA, Transcript of hearing on proposed renewals of NPDES permits for three Metropolitan Water Reclamation
District of Greater Chicago plants (August 23, 2000). Available at (visited May 2003).
42 Ibid. Mardi Klevs, Testimony, 67.
43 Ibid, 68.
44 Ibid. Emilio Salis, Chicago Bureau of Air, Testimony, 89-90.
45 Ibid.
46 Ibid. Cheryl Johnson, People for Community Recovery, Testimony, 89.
47 Ibid. Marian Byrnes, Executive Director, Southeast Environmental Task Force, Testimony, 118.
48 Illinois Environmental Protection Agency (IEPA), Responsiveness Summary to public comments on Metropolitan
Wastewater Treatment Facility NPDES permit renewals (January 22, 2002).
49 Alan Keller, Manager, Northern Municipal Unit, Bureau of Water; Dennis McMurry, Manager, Public
Information; Kurt Niebergall, Manager, Office of Community Relations; and Ken Page, Environmental Justice
Officer, IEPA, Interviews (June 5, 2003).
50 IEPA, Responsiveness Summary.
51 Allen Keller, Dennis McMurray, Kurt Niebergall, and Ken Page, Interviews (June 5,2003).
52 Municipal Code of Chicago, Title 17, Article 10..9 Performance Standards—Noxious Odor Matter—Use and Bulk
Regulations. Available at (visited July 2003).
53 Anatoly Belogorsky, Permit Engineer, IEPA, Interview (May 30, 2003).
54 Alan Keller, Dennis McMurry, Kurt Niebergall, and Ken Page, Interviews (June 5, 2003).
55 D. Marder, P. Targonski, P. Orris, V. Persky and W. Addinton, "Effect of Racial and Socioeconomic Factors on
Asthma Mortality in Chicago," Cardiopulminary and Critical Care Journal (June 1992).
56 Chicago Department of Public Health, Asthma Survey (1999).
57 Susan J. Popkin, Mary K. Cunningham and Erin Godfrey, CHA Relocation and Counseling Assessment: Interim
Report (Urban Institute, October 2000).
58 Environmental Defense Fund, Scorecard.
59 EPA, Office of Pollution Prevention and Toxics, Lead Poisoning and Your Children, (September 1992).
60 Mardi Klevs, Interview (January 16, 2003).
61 Environmental Defense Fund, Scorecard.
62 Mardi Klevs, Interview (January 16, 2003).
63chicagolead.org., Chicago Blood Lead Statistics for Community Areas-2000, website,
(visited July 2003).
Xavier University, "Deep South Center."
65 Cheryl Johnson, Interview (September 10, 2002).
56 Agency for Toxic Substances and Disease Registry, "Health Consultation, Altgeld Gardens Soil Sampling"
(Illinois Department of Public Health, 1998). Available at
(visited July 2003).
67 Ibid.
68 Mardi Klevs, Interview (May 22, 2003).
69 Alan Keller, Dennis McMurry, Kurt Niebergall, and Ken Page, Interviews (June 5, 2003).
70 Mardi Klevs, Interview (May 22, 2003).
71 Chicago Housing Authority, Health in Public Housing: Moving Towards Healthier Residents (October 2000).
72 Juanita Charlton, Cathy Dickhut and Marilyn Engwall, Interview (September 9, 2002).
184
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73
Susan Popkin, Mary K. Cunningham and Erin Godfrey, Chicago Housing Authority Resident Satisfaction and
Management Needs Survey (December 1996). Available at
(visited June 2003).
74 Chicago Housing Authority, "The Chicago Housing Authority," website, < http://www.thecha.org/> (visited May
2003).
Columbia University, The Chicago Housing Authority and the American Dream (undated). Available at
(visited May 2003).
16 Office of the Mayor of Chicago, "City Launches New Era in Public Housing," Press Release (May 27, 1999).
77 Katherine Greenberg, Interview (August 10, 2002).
79
Chicago Housing Authority, Draft Annual Plan for Transformation FY 2003 (September 2002).
Ibid, 13.
81 Ibid, 85.
82 Katherine Greenberg, Interview (August 10, 2002).
83 Columbia University, The Chicago Housing Authority.
84 Cheryl Johnson, Interview (September 10,2002).
85 Juanita Charlton, Cathy Dickhut, and Marilyn Engwall, Interviews (September 9,2002).
88 Chicago Department of Planning and Development, Calumet Area Land Use Plan (December 2001).
Kimberly Worthington, Assistant Commissioner and Matthew Fortney, Engineer, Chicago Department of
Environment, Interviews (September 9,2002).
90 Ibid
91 Ibid
92
93
94 Bill McDonough, Conscious Choice (September 2002).
Metropolitan Water Reclamation District, "Metropolitan Water Reclamation District of Greater Chicago,"
website, (visited May 2003).
96 Peggy Bradley, Public Information Coordinator, Metropolitan Water Reclamation District, Interview (October 30
2002).
99
Ibid.
Ibid.
Metropolitan Water Reclamation District, "Metropolitan Water Reclamation District.
Peggy Bradley, Interview (October 30, 2002).
Gillogly and Pinsker, Networks, 2.
^Ibid,24.
102 "Brownfields, Southeast Chicago: Community Groups Tackle Brownfield Redevelopment," Federation for
Industrial Retention & Renewal News (Winter 1996).
Chicago Department of Planning and Development, "Chicago Fact Book," website,
(visited June 2003).
104 Gillogly and Pinsker, Networks, 18.
105 S.H.A. 65 ICLS 5/11-12-4 (1993).
106 Public Act 92-0768.
Chicago Department of Planning and Development, "Planning and Development," website,
(visisted July 2003).
108 Ibid
109 Ibid.
Ibid., "Tax Increment Financing," website,
(visited June 2003).
Ibid., "Enterprise Zones," website, < http://www.ci.chi.il.us/PlanAndDevelop/Programs/EnterpriseZone.html.>
(visited June 2003).
113 Ibid., "Calumet Industrial Corridor," website,
(visited June 2003).
185
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114 Ibid., "Enterprise Zone 3," website,
(visited June 2003).
115 Ibid., "Zoning and Land Use Planning," website,
(visited
June 2003).
117 Ibid., "Neighborhood Division," website,
(visited June 2003).
118 Ibid., "Planning District 5 - Far South," website,
(visited July 2003).
119 Juanita Charlton, Cathy Dickhut and Marilyn Engwall, Interviews (September 9, 2002).
120 Ibid.
121 Ibid.
122 Chicago Department of Planning and Development, Calumet Area Land Use Plan, introduction by Mayor
Richard M. Daley.
mlbid.,\\.
124 Juanita Charlton, Cathy Dickhut and Marilyn Engwall, Interviews (September 9,2002).
125 Chicago Department of Planning and Development, Calumet Area Land Use Plan, 14.
126 Ibid., 16.
127 Peter Skosey, Revise, Recreate, Rezone: A Neighborhood Guide to Zoning, Section 1 (Metropolitan
Planning Council, June 2001). Available at (visited
July 2003).
128 Ibid., Section 7.
129 Municipal Code of Chicago, Chapter 11-4 (Amend. 4-27-60, Coun. J. p. 2503).
130 Office of the Mayor, "A Call to Rewrite the Chicago Zoning Ordinance," website,
< http://www.ci.chi.il.us/Mayor/Zoning/> (visited July 2003).
131 Chicago Department of Planning and Development, website, "Mayor's Zoning Reform Commission,"
(visited July 2003).
132 Jill Murray, Office Secretary, Chicago Department of Planning and Development, Interview (June 2, 2003).
133 Chicago Department of Planning and Development, Zoning Reform Commission, Chicago, IL, Principles for
Chicago's New Zoning Ordinance (May 2002).
134 Metropolitan Planning Council, "Metropolitan Planning Council," website,
(visited July 2003).
135 Skosey, Revise, 7-9.
136 Municipal Code of Chicago, Zoning Code of Chicago, Chapter 11.4, Environmental Protection and Control.
Available at (visisted July 2003).
137 Municipal Code of Chicago, Title 17, Article 10.9 Performance Standards — Noxious Odor Matter—Use and
Bulk Regulations. Available at (visisted July 2003).
138 Municipal Code of Chicago, Title 17, Article 10.10 Performance Standards — Toxic Matter— Use and Bulk
Regulations. Available at (visited July 2003).
139 See Title 17, Articles 10.9 and 10.10 of the Municipal Code of Chicago.
140 Chicago Department of Planning and Development, Zoning Maps (undated/ Available at
(visited June 2003).
141 Environmental Council of the States, "Illinois Environmental Protection Agency," website,
(visited July 2003).
142 EPA Region V, website, "Illinois Permit Database,"
(visited May 2003).
143IEPA, "Emissions Reduction Credit Bank," website,
(visited May 2003).
144 IEPA, Draft Interim Environmental Justice Policy. Available at
(visited June 2003).
145 Ibid.
146 415 ILCS 51'\etseq.
147 IEPA, Siting a Pollution Control Facility in Illinois, 2. (March 2003).
186
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Ibid., 6-7.
148
149
150 IEPA, Draft Interim EnvironmentalJustice Policy.
151 Chicago Department of Environment, "Public Interest," website, (visited
May 2003).
I52lbid., "Environmental Permits," website,
(visited July 2003).
153Ibid., "Enforcing Chicago's Municipal Code," website,
(visited May 2003),
154Kimberly Worthington, Interview (September 9, 2002).
155 Ibid.
156 Juanita Charlton, Cathy Dickhut, and Marilyn Engwall, Interviews (September 9, 2002).
151 Ibid.
158 Illinois Environmental Protection Agency, Draft Interim Environmental Justice Policy.
187
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188
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CHAPTER NINE
ST. JAMES PARISH, LOUISIANA
FINDINGS
Finding 1: Louisiana law does not require local governments to adopt comprehensive plans
or zoning ordinances, and St. James Parish has no comprehensive plan or zoning ordinances.
Local officials say they lack professional planning staff, do not have adequate information about
current land use, and have only limited public support for land use controls on private property.
Finding 2: Louisiana law authorizes regional planning organizations to assist local
governments that are interested in planning and zoning, but officials in St. James Parish have
seldom used these services.
Finding 3: Regional planning officials and some St. James Parish officials acknowledge that
instituting zoning has the potential both to protect citizens and to create a predictable regulatory
structure for industry that might reduce future controversies about siting decisions. In 1990, the
Louisiana Department of Environmental Quality (LDEQ) issued a memorandum to all local
officials reminding them of their responsibility for protecting human health and welfare and of
their existing authority to exercise that responsibility when making local siting decisions. St.
James Parish officials are reluctant, however, to embrace land use planning or zoning because of
possible political objections to local government controls on decisions about how to use private
property.
Finding 4: The government of St. James Parish does not identify environmental justice as
either a problem or a priority, in large part because parish officials believe there are no
environmental justice issues unless a polluting facility purposefully locates near a low-income or
people-of-color community intending to harm the residents.
Finding 5: Through a task force and public hearings, respectively, Louisiana's Governor and
the state Legislature have solicited recommendations from stakeholders on environmental
justice. Stakeholders recommended developing an environmental policy act ("little NEPA") and
examining whether the state needs land use planning and zoning. They also recommended
creating buffer zones around some industrial facilities. To date, these and a wide range of other
recommendations from these stakeholder processes have not been implemented by state or local
governments. If implemented, they would help to address many of the environmental justice
complaints in St. James Parish and elsewhere in Louisiana.
Finding 6: LDEQ has not been able to provide effective assistance for St. James Parish on
environmental justice issues because the agency lacks a vision, strategy, and tools that could help
local governments in Louisiana understand the health and environmental implications of their
siting decisions.
189
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BACKGROUND
About St. James Parish
St. James Parish (the equivalent of a county under Louisiana law)
is located in southeastern Louisiana between Baton Rouge and
New Orleans. It covers 246 square miles, and is predominantly
rural, with the Mississippi River running through the center.1
According to the 2000 Census, the population of St. James Parish
is 21,224, almost evenly divided between African-American and
white (non-Hispanic) populations; no other race or ethnicity
comprises more than one percent of the population.2 Over 20
percent of the Parish's general population and 27 percent of its
children live in poverty. Median household income is $35,277, with 37.4 percent of households
in the Parish earning less than $25,000 annually. Just over a quarter its residents 25 years or
older have not achieved a high school diploma or equivalent. Of the available labor force, 5.5
percent are unemployed. The largest industries reported in the Census are manufacturing (26.2
percent, mostly petrochemical
and large-scale agricultural),
plus education, health, and social
services (19.9 percent).3 St.
James Parish suffers from out-
migration
economic
According to the 2000 Census,
and a lack of
development.4
St. James Parish, Louisiana—Demographics
Size:
Total Population;
Race and Ethnicity*:
African-American:
White:
Hispanic*:
"some other race":
Unemployment Rate:
Median Household Income:
Individuals Below the Poverty Level:
High School Graduate or Higher:
246.1 square miles
21,216
49.4 percent
50.0 percent
0.6 percent
0.1 percent
5.5 percent
$35,277
20.7 percent
73.9 percent
*Total does not add up to 100 percent because some individuals specified more than
one race
Source: U.S. Census Bureau, Census 2000
the Parish's population has only
increased 1.6 percent in ten
years.5
Environmental Setting
The Parish contains large areas
of bayou (swamp and marsh),
and a settled strip of land on each side of the Mississippi River. Much of the area is not
inhabitable because of the high water table. Historically, the two strips of fertile land on either
side of the Mississippi consisted of plantations between the bayous and the River, with property
boundaries between them running perpendicular to the River. Today, these properties make
natural ports, with easy access for shipping.
The River is also a physical and cultural divide. Residents on the west bank have a strong
Acadian (French) heritage and are interested in preserving this cultural tradition. Many west
bank citizens still speak both Creole and English. By contrast, east bank residents, with direct
access to New Orleans and Baton Rouge, tend to be more oriented to the modern urban culture of
those cities. Most east bank citizens speak only English. There are no distinctive demographic,
economic, or social differences between the populations on either riverbank, although each
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community sees itself as distinct. The Parish also provides two sets of most public services, even
drinking water treatment plants, one on each side of the River.
Economic History
When slavery ended, groups of free blacks, referred to as "companies," purchased strips of land
on the edges of many plantations. The descendants of these freed slaves have remained there,
generation after generation, subdividing and re-subdividing the parcels. In general, these
communities are economically poor, but rich in family histories going back many generations.
The result is a series of small African-American communities—a few hundred people in each
community—whose residents live in dense clusters of dwellings on small strips of land.
After these strips of land were purchased by the free black companies, the remaining plantation
lands were usually left to the plantation owners' children and other descendents. Today, some
plantation properties are owned by up to 200 heirs. Other plantations have been sold for
development; and some now contain heavy industry that is dependent on river access. Of the
plantations that have not been sold, many are leased for growing sugar cane.
Petrochemical and agricultural businesses are the major industries. Fourteen major factories in
St. James Parish produce, transport, or distribute chemical and petroleum products. The other
major industrial facilities in the parish include an aluminum producer, two grain exporters, a
sugar refinery, and a potato chip manufacturer.9
ENVIRONMENTAL JUSTICE CONCERNS
Environmental Quality in St. James Parish
LDEQ listed air toxics as the state's highest environmental risk statewide for 2000.10 While is an
overall downward trend in toxic air releases, the state continues to be one of the largest toxic
release emitters in the nation. In 1997, Louisiana ranked second highest for toxic releases,
with 186,03 8,253 pounds of toxics released to air, water, and land.11 Due to de-listing of one
chemical and reduced usage of another, in 2000 the state dropped to 11th highest in toxics
i")
releases, with 154,522,635 pounds of total releases.
St. James Parish is part of the 85-mile stretch along the Mississippi River where more than 100
chemical, petrochemical, refining, and industrial plants are located.13 The potential for human
exposures to toxic chemicals has earned this area the nickname "Cancer Alley." According to
the Toxics Release Inventory, St. James Parish has an extraordinarily high level of toxic
releases.14 For 1997—the year the Shintech environmental justice case was filed (discussed
below)—put St. James in the national news, the Parish ranked 27th in the nation for total toxic
releases, with 16,653,641 Ibs.15 In 2000, St. James Parish was ranked as the 90th highest county
in the nation for toxics releases; and its total toxic releases were 4,815,816 pounds, including
4,510,587 pounds of toxic air releases.16
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In 2000, 88 percent of the air pollution causing cancer risks in St. James Parish was from mobile
sources; while 9.9 percent was from area sources and two percent was from point sources.17 A
1998 EPA analysis for the Shintech case found that there were 30 polluting facilities within a
four-mile radius of people residing in St. James Parish.18
With regard to air quality, St. James Parish was designated as nonclassifiable for ozone in 1995,
but the adjacent parish of Ascension and nearby parishes of Iberville and Livingston are
classified as in serious nonattainment areas for ozone.19 Based on 2000 air quality data, St.
James Parish has also been rated as one of the worst counties in the nation for nitrogen oxides,
paniculate matter (PM-2.5 and PM-10), and sulfur dioxide.20
Health Issues
.21
According to EPA, air toxics—which are a major concern for Louisiana's Industrial Corridor
—can cause serious health problems including cancer, respiratory irritation, nervous system
problems, and birth defects. These effects can be minor and more immediate, like eye irritation,
or longer-term and life threatening, like lung cancer.22
The potentially adverse health effects from chemical exposures have been a major issue for
residents of Convent, a town in St. James Parish. In the late 1990s, Convent residents raised
environmental justice claims about a proposal for a new polyvinyl chloride facility in their
community. Many residents testified about their health concerns associated due to air emissions
from nearby industrial facilities, including "respiratory problems, such as asthma..., leukemia,
skin rashes, lung damage, and premature death."23 Members of the community also expressed
concern about the health effects of the cumulative risks associated with their exposures to
multiple chemicals and the vulnerability of sub-populations near the proposed facility-
including children attending two elementary schools and a Head Start center within one mile of
the proposed boundary for the chemical plant.24
Industry and state officials have disagreed over designation of Louisiana's Industrial Corridor as
"Cancer Alley" because some past studies have not shown that overall cancer rates are
substantially different in the Corridor when compared with cancer rates in the rest of Louisiana.25
Community and environmental groups assert that analyzing health information on a regional or
parish basis may fail to detect cancer clusters or the result of other very localized impacts from
emissions, like those of concern to St. James Parish residents.26 Rather, they claim that science
has not caught up with the way these localized health problems should be analyzed. An
environmental epidemiologist, Ellen Silbergeld from Johns Hopkins University, recently said:
"This is not a sensitive science.... The numbers of people are too small and our ability to see a
difference in their disease patterns is very imprecise. So the two things just compound one
another."27
The shortcomings of current tools to assess localized pollution impacts have been acknowledged
by organizations like the National Academy of Science. In 1999, the Committee on
Environmental Justice of the National Institute of Medicine conducted a study on environmental
justice problems and recommended, among other things, that research to address these issues
"must improv[e] the science base and collect data that is [sic] relevant to policy-makers."28
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Sources of Health Data
There are a number of data sources and organizations responsible for gathering health-related
data for Louisiana, the Industrial Corridor, and St. James Parish.
• Federal Cancer Data
According to the National Cancer Institute's Cancer Burden Fact Sheets for 2002, "Louisiana
ranks second highest overall in cancer mortality rates among the 50 states and Washington, D.C.,
with 237.3 deaths per 100,000 persons, compared to 206.0 for the United States."29 The average
annual age-adjusted mortality rates for cancer deaths per 100,000 persons, by race, [during]
1995-1999 for lung, colorectal, and breast cancer is higher for blacks than for whites in the
United States, and the rate is higher for blacks in Louisiana than it is for blacks nationwide.
The mortality rate for prostate cancer is also dramatically greater for blacks in Louisiana (73.7
per 100,000) than for whites (32.7 per 100,000), and much higher than the overall national rate
of33.9perlOO,000.31
The National Cancer Institute's State Cancer Profiles, Death Rate/Trend Comparison by
State/County32 for all races through 2000 notes that St. James Parish ranks higher than the
national rate of lung and bronchial cancer deaths for males of all races, butbelow the national
rate in this same category for females of all races. Yet, the Parish's breast cancer rate for
females of all races is similar to the national rate. These profiles do not provide Parish data for
other cancers for the parish because these data were either "too sparse to provide stable estimates
[or to] ensure confidentiality and stability of rate estimates."
• State Cancer Data
The Louisiana Department of Health and Hospital's Section of Environmental Epidemiology and
Toxicology (SEET) is charged with investigating potential long-term and short-term health
effects caused by chemicals in the environment and residents' exposures to toxic pollutants.
Although SEET has not conducted any health effects studies in St. James Parish,.3 there is a
study underway now—called the Lower Mississippi River Intra-agency Cancer Study—to
analyze the frequency of lung cancer among residents of the Industrial Corridor.
The Department of Health and Hospitals does produce a periodic health profile report for each
parish with a variety of health statistics, including a section on environmental health. The
1999 version of this report, which is the most recent, provides data on toxic releases in St. James
Parish for 1997 (8.1 million pounds to air; 7.8 million pounds to water; and 843,678 pounds to
land); but it contains no analysis or other information about health effects on Parish residents.
The Louisiana Tumor Registry "does not calculate [cancer] rates for individual parishes because
of concerns of statistical instability in some of the smaller parishes."39 The Registry does,
however, have cancer counts for St. James Parish during 1995-1999, although these data are not
disaggregated by race or sex. The Parish's counts of in situ and invasive cancer cases for these
years among males and females of all races showed the top cancers for females to be breast,
colon, rectum, lung, and bronchial cancers (118 out of a total of 207 cancers for females).4 For
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males of all races, the top cancers werejrostate, lung, bronchial, colon, and rectum cancers (145
out of a total of 243 cancers for males)/
4
The Registry's data on cancer mortality rates for the Industrial Corridor during 1994-1998, by
race and sex, show that blacks had higher mortality and cancer rates than whites in the Corridor,
the state, and the United States, as well as higher rates than for all blacks in the United States.4^
The Registry's data show that for the six-year period, mortality rates per 100,000 (age adjusted
to the United States 1970 population) were 345 for whites and 483.1 for blacks.43 For Louisiana,
the mortality rates per 100,000 were 370.7 for whites and 497.3 for blacks. The comparable
numbers for the United States are 337.8 for whites and 458 for blacks.44 But the Registry did not
analyze the data, so no conclusions can be drawn as to their significance.
Cancer rates by race and gender for the Industrial Corridor45 during 1995-1999 show that they
are higher overall than in the rest of Louisiana and the United States, and that rates for blacks are
higher than for whites in each area.46 These rates are per 100,000 people, adjusted for age using
the United States population in 2000.47
The Shintech Case
In 1996, the Shintech Corporation, a Japanese producer of polyvinyl chloride, announced its
intent to build a $700 million facility, including an incinerator, in Convent, Louisiana, a small,
predominately African-American community in St. James Parish.48 The company's air permit
application indicated its intent to emit annually more than 104,000 pounds of vinyl chloride,
360,000 pounds of methanol, 102, 000 pounds of chlorine, and 64,800 pounds of hydrochloric
acid. At the time, St. James Parish ranked 27th in the nation for total toxics releases.50
A group of local citizens, calling themselves the St. James Citizens for Jobs and the
Environment, organized to oppose the siting of this facility,51 which would have been located
near 16 other large industrial plants.52 (See map on the next page.) Their primary concern was
the potential threats that the facility would pose to the health and safety of the community.53
On behalf of the St. James group and several other organizations,54 two significant actions were
initiated. First, in May 1997, the Tulane Environmental Law Clinic filed an administrative
complaint against LDEQ under Title VI of the Civil Rights Act of 1964, opposing LDEQ's
approval of a permit for the Shintech facility.55 Second, in July 1997, the Louisiana
Environmental Action Network (LEAN) filed a petition with the EPA Administrator to revoke
Shintech's air permit, on the grounds that it was not issued in accordance to federal
requirements.56
The 1997 Shintech case was not the first Title VI case filed against Louisiana's Department of
Environmental Quality.57 The case was, however, significant for a number of reasons:
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* It highlighted the potential disproportionate amounts of new pollution in an area already
ranked nationally as having significant total toxic releases.
• The local citizens gained national and international attention for their cause by enlisting
the help of other Louisiana and national environmental and civil rights organizations to
assist them, thus raising the profile for issues of environmental justice for all impacted
communities.58
• It highlighted the significant obstacles faced by citizens complaining about
environmental justice problems when seeking redress. In this case, these obstacles
included not only the highly technical nature of the permitting process, but also the
political dimensions of opposing a new multi-million dollar facility and a state
bureaucracy that wanted to attract more new businesses.
• It dramatically illustrated the need for effective state management of programs to protect
human health and the environment, when EPA agreed with complainants that the law had
not been followed by Louisiana and revoked the air permit for Shintech, marking the first
time that EPA had ever rejected an air permit because of a citizens' petition.59 LDEQ
was then required to begin the permitting process again.60
• The issues raised by the citizens pointed not only to their concerns about health issues
associated with air toxics, but also to a different vision of economic development for the
Parish. The citizens wanted "a cleaner environment and greater economic
opportunities,' clean businesses' that employ local residents and enhance the
community."62
As the result of the Tulane Law Clinic's involvement in the Shintech case, the Governor of
Louisiana "threatened to go after Tulane's tax breaks and to ask supporters to reconsider their
financial contributions because of the [law] clinic's activities."63 Additionally:
• The Louisiana Supreme Court investigated the Tulane Environmental Law Clinic, at the
request of some major industry groups, who said the "environmental law student
practioners should be regulated more closely because business in the state was being
negatively impacted by their misguided challenges to environmental permits and other
practices."64
• The Court's investigation resulted in a revised rule that re-defined "indigence" to be 200
percent of the federal poverty level, thus severely limiting the law school's ability to
represent community groups like St. James Citizens for Jobs and the Environment.
• The Secretary of the Louisiana Department of Economic Development compiled a list of
nonprofit organizations with the intent to, as he put it, "use every legitimate method at
my command to defeat them."65
For their part, Shintech officials' were interested in moving to Convent because of easy access to
the Mississippi River and railway lines, as well as the availability of needed raw materials like
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natural gas and salt.66 The company also proposed to provide "165 full-time jobs and 90 contract
positions, plus 1,800 temporary jobs during construction."67 After the initial controversy about
siting the facility in Convent, Shintech additionally agreed to provide $500,000 for local
residents' job training and small business development, with support from the local chapter of
the National Association for the Advancement of Colored People.68 Convent residents opposed
to the facility were not, however, persuaded by the promises of jobs, which they believed would
not benefit very many local residents because they required higher skill levels than most local
workers had attained.69
There were also community residents who favored the facility, provided that real benefits
accrued to local residents.70 This group, however, received financial support from Shintech.
In the final analysis, for those opposed to the facility, the issue was not whether Shintech was
attempting to harm the community intentionally, but rather the harmful effects that additional
toxic emissions would have on the area.7
Parish and state officials saw the project very differently. In their eyes, the benefits were clear.
The Parish economy had been growing slowly, and Shintech would bring 165 permanent jobs,
plus 1,800 temporary construction jobs. Further, the company planned to buy 3,000 acres, using
400 for the plant and the rest as a buffer zone.73 Parish officials had researched other Shintech
facilities and found no past environmental problems, so they believed that Shintech workers and
the communities around other Shintech plants did not seem unhappy with the company.74
Leaders on both sides of the issue claimed to be supported by the majority of Parish residents.
While Parish officials were still in private conversations with Shintech and before LDEQ had
acted on the permit, they were invited to a community meeting and, according to them, were
"attacked and blindsided" by accusations of environmental racism.75 They claimed they did not
understand the charges of racism. They believed that the community had good race relations and
asserted that race was not considered when selecting the site for this facility. Also, Parish
officials thought that many who opposed the Shintech facility seemed to be white outsiders, not
from the local black community. In their view, these activists merely hurt the community by
driving away potential jobs, leaving the community with no alternatives for economic
development.76 As this local issue made national headlines, the Governor of Louisiana came to
Convent, went to the neighborhood closest to the proposed Shintech site, and asked several
people if they wanted the project. He concluded that they did after getting several affirmative
responses.77
LDEQ's Secretary took the position that the community was focusing on the wrong organization
to solve the problem, because it was a problem of siting, not the environmental permitting
process for which the Department was responsible. According to the then-Secretary:
What you see happening is first and foremost an absence of normal zoning
regulations that might keep people from building a sewerage plant or a refinery or
a gambling establishment next to your house. There's no debate; there is a woeful
lack of rules. Because you don't have zoning, they turn to environmental
agencies. We have regulations. We can't just say we want all buses painted red
because it's pleasing to the eye. If it meets the regulations, if it meets the science,
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then taking action is a ministerial function. You can't just take action because
someone says, "Oh, I don't really want you to locate there."
78
This was not a new position for the Department. In 1990, LDEQ's previous Secretary had sent a
memorandum to local officials hi Louisiana clarifying their responsibility for public health and
the environment, and admonishing them to consider fully the environmental implications of
industry siting decisions.7
Audits of Louisiana Environmental Programs
Environmental justice organizations do not, however, agree that LDEQ has only a ministerial
role. Environmental justice concerns in Louisiana and St. James Parish raise serious issues with
the overall effectiveness of LDEQ.
Audit by EPA's Inspector General
In 2001, the Regional Administrator for EPA's Region VI, which has oversight responsibility for
Louisiana, received a petition from the Tulane Environmental Law Clinic:
Requesting EPA to withdraw Louisiana's authority to implement the National
Pollutant Discharge Elimination System (NPDES) water program. In March of
2002, the New Sarpy Concerned Citizens Group [also] petitioned Region 6 to
withdraw from Louisiana the Resource Conservation and Recovery Act (RCRA)
art
hazardous waste program and the Title V air permit program."
The Regional Administrator asked the EPA's Inspector General to investigate these concerns.
The resulting audit highlighted the deficiencies of Region VI hi overseeing Louisiana's
environmental programs, by failing to establish measurable performance goals, not holding the
state accountable, and failing to ensure data quality from LDEQ.81
In August 2002, another report by EPA's Inspector General focused on public participation in
Louisiana's air permitting program and EPA oversight. That report concluded the program met
basic requirements, but could be improved by:
• Better record keeping;
• A clearly defined role for the agency's public participation group; and
• Increased public access to information about sources that receive multiple air
82
permits.
The report recommended that EPA improve its review of public comments before approving
LDEQ's air permits and take a more proactive role in assuring that LDEQ carries out its
commitments to EPA for improving public participation.83
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Concerns about Emissions Trading Program
Federal oversight of the Louisiana environmental program also came under scrutiny in
November of 2002, when EPA employees raised concerns about its approval of LDEQ's trading
program that allows industry to trade emissions of toxic volatile organic compounds (VOCs) for
reductions in nitrogen oxide emissions.84 EPA employees said that LDEQ's program violates
EPA's own environmental justice policy because of the potential for disproportionate impacts on
low-income and minority communities. They also alleged other deficiencies in the state trading
program:
• Failure to ensure that trades will result in net reductions in air pollution;
• Lack of safeguards to prevent double counting and other illegitimate trades; and
• Inability of state authorities to conduct reliable monitoring of industry exchanges.85
Louisiana's Legislative Auditor
Other audits have revealed a number of concerns about LDEQ's overall performance. In March
of 2002, Louisiana's Legislative Auditor released a performance audit of LDEQ that found four
categories of deficiencies:
1. Monitoring Functions
• LDEQ could not easily provide accurate information about the facilities regulated by
its programs.
• LDEQ had not issued 66 percent of water permits as committed to EPA, and to issue;
many facilities are operating under expired permits. Moreover, 69 percent of major
water facility permits and 73 percent of all solid waste facility permits have expired.
• Twenty-six percent of the required self-monitoring reports in the sample for water
and 22 percent of the required reports for air in the sample were either never
submitted to LDEQ or could not be located at LDEQ.
2. Enforcement Functions
• Some violations never received enforcement actions, and some enforcement actions
were not escalated when a facility continued to have the same or similar violation.
• Eight percent of the formal water enforcement actions in the sample were issued more
than 150 days after the violation occurred.
• LDEQ has not collected nearly $4.5 million—75 percent—of the monetary penalties
it assessed in fiscal years 1999, 2000, and 2001.
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• LDEQ's beneficial environmental projects and negotiated settlements may not
effectively penalize facilities with violations.
3. Complaint Resolution Process
• One-third of complaints in the sample were not handled within five days from when
LDEQ received the complaint.
• Some complaints in the sample that appeared to involve a violation were never the
basis for any enforcement action.
• Most complainants in the sample were dissatisfied with LDEQ's handling of their
complaints.
4. Other Issues
• Many of LDEQ's vital documents could not be located, were misfiled in agency
files,or were indexed incorrectly in electronic files.
• Nearly $11 million in fees were never collected because of LDEQ's poor billing and
OrfT
collection practices.
Other Environmental Justice Concerns
This legislative audit and the report of EPA's Inspector General confirmed the concerns of
environmental justice groups about the failures of LDEQ and EPA Region VI in protecting their
health and welfare of local residents, and they highlight the continuing incidents that harm public
health in communities like St. James Parish.
Recent vinyl chloride contamination of well water used for drinking, bathing, and cooking in an
African-American community in Iberville Parish, two miles from a chemical plant that produces
vinyl chloride, also illustrates why the Shintech case caused such concern among many St. James
residents.87 Louisiana's first grand jury on environmental issues has been impaneled amid
allegations that the state's Department of Health and Hospitals had known about the
contamination since 1997 but, through what state officials call "human error," failed to inform
• 88
the community or other authorities, including EPA and LDEQ.
Residents of this small 300-person community are concerned that their high rate of miscarriages
may be attributable to the vinyl chloride.89 Health officials have provided them with pamphlets
"warning them of possible threats from vinyl chloride to unborn children," and acknowledging
that this chemical can also cause "liver cancer, nerve damage, [and] circulatory problems." In
the final analysis, however, scientists are unsure what the effects might be from bathing in and
drinking water contaminated with the chemical.
Responding to these concerns, in June 2002, the Governor established a task force to review and
report on the funding and performance issues at LDEQ. The task force—made up of
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representatives from industry, the environmental community, public interest groups, and
government—produced their final report in March 2003, with specific recommendations for
correcting various deficiencies. While the report does not address environmental justice issues
specifically, it does include recommendations for improving enforcement and enhancing public
access to information, all concerns frequently raised by environmental justice groups.91
PLANNING, ZONING, AND GOVERNANCE IN LOUISIANA
Louisiana Planning and Zoning Laws
The Louisiana Constitution authorizes local governments to adopt regulations for land use,
zoning, and historic preservation; and state-planning legislation has authorized adoption of local
land use plans since the early 1920s.92 However, the state does not mandate local planning or
zoning by parishes or towns, nor does it provide incentives for local governments to engage in
such activities. If a locality nonetheless chooses to plan, it must adopt a master plan to promote
health, safety, and general welfare; provide for adequate light and air; include adequate traffic
provisions; and provide for the healthful and convenient distribution of population, open space,
and public housing.93
Localities in Louisiana must file their plans with the State Planning Office and also file their
plans and zoning ordinances with the appropriate regional planning commission, but solely for
informational purposes. There is no coordinated statewide plan for Louisiana, no statewide role
in local planning, and no mechanism for state approval or enforcement of local plans.94 The
Louisiana State Planning Office does, however, engage in some planning activities, such as
surveying state resources, reviewing local planning, and coordinating the planning and
programming of individual state agencies.95 In addition, the Legislature authorized creation of
certain regional development districts to facilitate intergovernmental cooperation and to
coordinate state, federal, and local planning and development programs.%
The South Central Planning and Development Commission carries out regional planning for the
district where St. James Parish is located (see section below on planning).97 When enacting
comprehensive plans, these regional planning commissions must hold at least one public hearing
and must give appropriate public notice, including posting the purpose, time, and place of the
hearing in a newspaper of common local circulation.
Local Governance in St. James Parish
Under Louisiana law, a parish is the approximate equivalent of a county and has jurisdiction over
the unincorporated areas within its borders.99 There are two incorporated towns in St. James
Parish: Lutcher and Gramercy. Each has its own local government with planning and zoning
capabilities, but these two incorporated towns are not involved in this case study. The
remaining unincorporated areas of St. James Parish operate under a home rule charter that grants
the Parish the right to establish rules of governance "requisite or proper for the management of
its affairs, not denied by general law or inconsistent with the constitution."101 A Parish Council
acts as the principal governing body for St. James.102
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The Parish Council—made up of 7 members who are chosen by general election—and its
President govern St. James Parish, along with other elected and appointed officials. The Parish
President, who has served for 14 years, is the political and administrative head and appoints four
area directors for operations, finance, human resources, and emergency preparedness. These
directorships are further subdivided into several departments with appointed department heads
who also report to the Parish President.103
The Office of Planning and Permitting comes under the Director of Operations and is responsible
for construction permits, fees, and notifications concerning building permits.104 It is a relatively
1 (IS
new function, first established in 2001.
The Parish supplements its professional staff with advisory commissions composed of citizen
volunteers appointed by the President and (elected) Parish Council. These commissions include
a Planning Commission, Coastal Zone Management Board, and Economic Development
Board.106
Planning Commission
The St. James Planning Commission has ten volunteer members. It has authority for
decisions about subdividing plots of land in unincorporated areas of the Parish.
Coastal Zone Management Board
The St. James Coastal Zone Management Board has eight appointees and three major
functions:
• Protection, development, and restoration or enhancement of the Parish's coastal
zone;
• Supporting and encouraging multiple uses of coastal resources, consistent
maintaining and enhancing their renewable resource management and
productivity; and
• Developing and implementing the coastal zone resource management program.
The Coastal Zone Management Board also has authority to review rules and regulations relative
to coastal resource management; review and comment on any permit application; review and
recommend modifications to the Parish Council on the coastal zone management program; issue
deny, or modify permits issued by the Parish President; inspect or investigate conditions relating
to the zone; and conduct other investigations related to the program.
The Director of the program is a civil engineer, and experts are retained as needed to assist the
citizen board with technical expertise.109 The parish-level board has never denied a permit, but it
has required permit conditions that have made it difficult for new development to proceed,
particularly to protect wetlands.110 Louisiana's coastal management agency has jurisdiction over
"uses of state concern," including gas and oil related facilities; but the Parish Board has
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jurisdiction over ''uses of local concern," including houses, camps, small developments, and
some large industry that does not fall under the state's jurisdiction.
Economic Development Board
St. James' Economic Development Board has 17 members. Each Parish Council member
appoints two members, and the Parish President appoints four members. The Director of the
Office of Economic Development invites interested companies to make presentations before the
Board, works closely with them, and seeks to recruit new businesses through other outreach.
While the Board cannot require new industry to hire local residents, the Board negotiates to
encourage local hiring.
Planning in St. James Parish
The Parish does not have a planning department, a comprehensive plan, a future land use plan, or
any professional planners on staff. Nor does the Parish intend to develop a comprehensive plan.
Parish officials offer two reasons for their decision. First, with no professional planning staff,
the Parish is reluctant to overburden its volunteer planning commission, which also supervises
compliance with the subdivision ordinance. Second, Parish leaders believe it is important to
study current land uses before undertaking planning.112 Toward that end, the Parish is in the
midst of developing a land use inventory based on a geographic information system (GIS) that
will enumerate all of the Parish's existing land uses and parcels.113
South Central Planning and Development Commission
The South Central Planning and Development Commission (SCPDC) was formed in 1973 under
Louisiana State Executive Order 27. SCPDC handles regional planning in Louisiana Planning
District Three, which covers six parishes, including St. James, as well as six municipalities,
including Lutcher and Gramercy. A 24-member Board, whose members are the top elected
officials of each Parish and municipality, governs the SCPDC.
SCPDC is partially funded by the parishes, and it assists member communities in developing
master land use plans, master recreation plans, and capital improvement plans. SCPDC also
helps with coastal zone management, transportation planning, environmental assessments and
impact statements, floodplain management, subdivision regulations, zoning ordinances, and
administration. In addition, SCPDC provides assistance on community development, historic
preservation districts, and historic structure surveys.
SCPDC also serves as a conduit for state information on environmental and development
permits. SCPDC receives notice of every permit application filed with LDEQ and passes this
information on to affected local governments. The commission also works closely with other
regional agencies, such as the Barataria Terrebonne National Estuary Program, the Port of South
Louisiana, and the Greater Lafourche Port Commission.
Although St. James has access to the planning resources of SCPDC, regional planners there
report that St. James seldom utilizes their expertise.114
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Zoning and Related Ordinances
The incorporated towns of Lutcher and Gramercy have adopted zoning ordinances,1 but the St.
James Parish Council has yet to do so for the unincorporated areas. The Parish President
explained this reluctance is due to the belief that zoning infringes on individuals' ability to
control privately owned property.116 According to Parish officials, local citizens heavily resist
zoning. In the absence of a state mandate to do so, the Parish has chosen not to adopt a land use
117
plan or any zoning ordinances.
St. James' failure to utilize zoning that would separate residential areas from industrial uses has
two important economic consequences for the Parish. First, low-income housing is often located
near heavy industry because an undesirable use can be located anywhere, leaving the poor
helpless to resist new sources of pollution.118 Second, the lack of zoning could deter new
businesses that, fearing litigation, do not want to locate near residential areas. A Parish
official also acknowledged that the lack of zoning is a concern for watchdog groups concerned
about environmental justice in the Parish.120 Another city official identified zoning as one of the
biggest cross-cutting issues in the Parish, and described zoning and land use plans as "laws to
help poor people."121 This official described the Shintech incident as resulting from local
government's lack of foresight to understand the implications of its siting decision.
Although reluctant to accept restrictions on its industrial properties, St. James has imposed
restrictions on residential property. For example, St. James' has adopted an ordinance requiring
that plans for any new subdivision be submitted to the Parish Council and allowing time for
public comment, public hearings, and approval by both the Planning Commission and the Parish
Council. The subdivision ordinance has multiple aims, including to:
• Protect the character, social, and economic stability of all parts of the Parish;
• Protect the value of Parish land, buildings and improvements; preventing
pollution of air, bayous, canals, and other water bodies;
• Preserve the integrity, stability, and beauty of the community;
• Preserve the natural beauty and topography of the Parish; and
• Provide for open spaces.
To achieve these aims, the ordinance contains specific guidelines and design standards for many
aspects of residential subdivisions, including roads, shoulders, utilities, and drainage.
ENVIRONMENTAL PERMITTING
Beginning in the early 1990s, various Louisiana agencies began to address the environmental
justice concerns that some of the state's African-American communities had vigorously raised.
While the Governor, the state Legislature, and LDEQ have noted the importance of
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environmental justice, to date their collective actions have not resulted in any official definition,
policy, or program beyond troubleshooting on specific issues as they emerge. Their efforts have,
however, produced a body of recommendations that, if implemented, could provide useful tools
for addressing environmental justice issues and other problems caused by the siting decisions of
local governments.
Louisiana Department of Environmental Quality
LDEQ has primary responsibility for issuing the environmental permits, including the Shintech
permit that caused major concerns for the state's environmental justice communities.124 LDEQ's
permitting responsibilities are carried out by its Office of Environmental Services, a multi-media
office that also has responsibility for licenses, registrations, certifications, authorizations, pre-
permit meetings, small business assistance, customer assistance, outreach, and a complaints
hotline. The Community/Industry Relations Group that has responsibility for responding to
environmental justice concerns is housed in this Office.126
LDEQ began to address environmental justice issues in 1992. In that year, citizen concerns
about a permit for a new commercial hazardous waste incinerator eventually resulted in the filing
of an^administrative complaint with the U.S. EPA under Title VI of the Civil Rights Act of
1964. LDEQ decided to address this problem by creating voluntary opportunities for
dialogues^ between community members and industry representatives to discuss their mutual
concerns. While the Department provided technical workshops for the citizens at these
meetings, it otherwise saw its role as solely a neutral convener.129 LDEQ's philosophy was to
"teach people how to solve their own problems with minimal government interference."130 The
Department hired a coordinator to manage the panel project, EPA provided the initial funding,
and LDEQ created an environmental justice group that reported to LDEQ's Secretary.131
Between 1993 and 1994, three panels were convened for St. John the Baptist Parish, the
Industrial Corridor, and Mossville and Westlake in Calcasieu Parish.132 These panels and other
efforts of LDEQ's environmental justice group did produce a few actions that may benefit some
communities. Examples include creating a recreation area, getting financial support for job
training, providing citizens with training for responding to emergencies, installing wind socks,
and setting up community advisory panels for some industrial facilities.133
In 1996, with a change in state administration, the environmental justice group was renamed the
Community/Industrial Relations Group134 and was moved to LDEQ's Office of Environmental
Services as part of the Stakeholder Outreach Section. The program manager for
community/industry relations heads the group, and it remains there today.135 This program
manager also serves as LDEQ's ombudsman and, as such, still has direct access to LDEQ's
Secretary.136
The three-person Community/Industrial Relations Group tries to keep an eye on any potential
LDEQ actions across the state, such as decisions on permit applications, that may raise
environmental justice concerns. They then notify appropriate LDEQ staff if they think there
might be such problems. They also work to try to defuse issues when they arise.'"
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The Community/Industrial Relations Group's standard operating procedures serve as the only
guidance for LDEQ's staff on how to respond to environmental justice problems.138 These
procedures are posted on the agency's Intranet. Suggested best practices for better public
participation include considering access to transportation, providing translators to overcome
language barriers, and adjusting the time and location of meetings to accommodate the public's
availability. These procedures can be used by any LDEQ staff who may chose to do so.
LDEQ has also developed draft environmental justice strategic plans, but the
Community/Industry Relations Group is waiting to make them final until after they receive
formal guidance on Title VI of the Civil Rights Act of 1964 and environmental justice from
EPA.140 However, LDEQ has not changed any of its permitting procedures to address
environmental justice concerns. The Department works with local governments on siting issues
as they emerge through the usual public participation process, and uses its environmental justice
staff to troubleshoot any problems that arise.141
Environmental Justice Report to the Legislature
In 1993, the Louisiana Legislature passed Act 767, which required the LDEQ to conduct public
hearings across the state, gather information from citizens about environmental justice concerns,
and then report back to the Legislature. In that report, LDEQ defined environmental justice as
"the equitable treatment of all people, regardless of race, income, culture, or social class with
respect to the development, implementation, and enforcement of environmental laws regulations
and policies."142 Although the Department has not officially adopted this definition, it has been
used consistently since that time.14
In August of 1994, LDEQ made the following recommendations to the Legislature for its action:
• Consider legislation to codify the court's decision in Save Ourselves Inc. v. the Louisiana
Environmental Control Commission 452 So. 2d. 1152 (La. 1984) (commonly referred to
as the IT decision), and require that LDEQ establish a broad-based advisory committee to
draft regulations implementing the mandates of the decision, beginning with
consideration of specific criteria for siting facilities;144
• Consider legislation to strengthen land use planning requirements in the state, taking into
consideration environmental justice concerns;
• Consider legislation to strengthen requirements for transporting toxic materials through
residential areas;
• Consider legislation offering tax incentives to reduce hazardous waste generation and
disposal in Louisiana;
• Consider legislation to strengthen existing statutes on emergency response in order to
meet community concerns more effectively;
• Provide funding for LDEQ to continue its environmental justice program and to create a
permanent position of environmental justice coordinator with adequate support staff;
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including permitted and unpermitted emissions and discharges; and should then
determine and set out any correlation that may exist between the emissions and
discharges and residential areas.15
Other recommendations included improving communication and dialogue between stakeholder
groups, developing targeted job training for Mississippi River Corridor residents near proposed
facilities, ensuring that pursuit of environmental justice does not harm economic growth,
increasing state resources for environmental programs, strengthening whistleblower laws to
protect industrial workers who report violations, and developing and supporting health studies to
determine the relationship between pollution and health effects.
Unfortunately, the Governor has not yet taken action on any of these recommendations.
ANALYSIS AND RECOMMENDATIONS
Leadership and Accountability
The opportunities for leadership and accountability for resolving environmental justice problems
have not been fully realized by any level of government in Louisiana although the Legislature
and the Governor have each solicited recommendations on how to address environmental justice
issues. The recommendations from citizens, industry, environmental groups, and state officials
provide a good foundation for action that, if properly implemented, could move Louisiana
forward to address environmental justice issues more effectively. But more visible leadership by
both the Legislature and the Governor is necessary for making progress.
The Governor's Advisory Task Force on the Funding and Efficiency of LDEQ developed
recommendations to correct the inadequacies identified by the state legislative audit.
Implementation of these recommendations by LDEQ and continued follow-up by the Governor
are essential to improve the state's stewardship of its environmental responsibilities and to
rebuild LDEQ's credibility with citizens whom the Department is responsible for serving.
LDEQ can become an important technical resource to local governments, helping them to
understand the environmental and human health implications of their siting decisions. However,
for LDEQ to perform this function, the Department needs channels for early communication in
advance of crisis situations; and LDEQ must demonstrate real progress in effectively exercising
its overall responsibilities along with taking visible actions that demonstrate its commitment to
achieving environmental justice.
Local officials throughout Louisiana have potentially valuable legal authorities for local land use
planning and zoning, but they have not exercised these powers. They also should make better use
of their regional planning authorities. Yet, local officials in St. James Parish have narrowly
viewed environmental justice issues and have defined it to mean only intentional decisions by an
industry to locate near a community-of-color. With this restricted view, they have shown little
willingness to address environmental justice problems.
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A more comprehensive view would enable the Parish to recognize that localized environmental
impacts and effective citizen participation affect the welfare of all Parish residents; and they are
elements of good government that, if enhanced, would benefit the Parish overall. The Parish has
also missed opportunities to work with regional planning authorities who could help to address
environmental and land use problems, for example, by recruiting a more diverse set of potential
businesses that would provide more jobs without increasing toxic burdens in the Parish.
Permitting and Other Authorities
LDEQ has responsibility for approving environmental permits in St. James Parish. However, the
Department has no clear strategy or demonstrated commitment to achieving environmental
justice and has many basic administrative deficiencies, as documented by several community,
state, and federal evaluations of its programs. Because of its own problems, LDEQ has not been
able to help St. James officials in resolving their environmental justice problems. Moreover,
LDEQ has not yet changed its permitting functions so it can effectively address community
concerns, such as by proactive public outreach and other steps to ensure meaningful citizen
participation in the Department's decisions.
Setting Priorities and Reducing Risks
Because Parish officials view environmental justice issues only as intentional discrimination by
industry, they have not explored ways to address the underlying community concerns about toxic
burdens that adversely affect public health and quality of life for Parish residents.
Public Participation
The Parish and the LDEQ offer only the most basic public participation opportunities required by
various laws. There is no evidence that they have adopted enhanced procedures to involve local
residents or respond to their environmental justice concerns.
Integration and Coordination
St. James Parish has not taken advantage of the support available from the regional planning
authority, which can assist the Parish in planning for important changes, including possibly ways
to address environmental justice issues. Nor has the Parish sought guidance or technical
assistance from LDEQ on environmental justice issues, and LDEQ has not made efforts to
engage Parishes proactively about these problems. Moreover, LDEQ still needs to remedy many
of its own deficiencies, and has not been in a position to help the parishes respond more
effectively to environmental justice concerns.
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RECOMMENDATIONS
• The Louisiana Legislature and Governor should move forward to implement the
recommendations on environmental justice resulting from public hearings in 1994 and
the 1998 Mississippi Corridor Task Force. Each of these efforts produced useful
recommendations from the public, business representatives, and senior state officials that
will help Louisiana to resolve some pressing public health and environmental problems.
• LDEQ should develop a clear environmental justice policy, action agenda, and
accountability measures that include commitments to reducing risk, improving
communication, and providing public access to more information. LDEQ should also
consider working with other state environmental agencies with effective environmental
justice programs, so it can benefit from their experience. LDEQ should further review
the environmental justice recommendations it has gathered at the request of the Louisiana
Legislature and implement those actions the Department could pursue based on existing
legal authorities.
• LDEQ should provide parish and town governments with guidance to help them
understand the public health and environmental implications of their land use decisions.
This assistance should follow up on the Department's 1990 memorandum to local
officials, which reminded them about their responsibilities for protecting public health
and welfare and the implications of their siting decisions.
• St. James Parish officials should work more closely with their regional planning
organization to develop a land use plan and zoning rules for the Parish so they can
prevent incompatible land uses such as residential communities close to polluting
industries. The Parish should also engage citizens in every stage of the planning and
zoning process and give them opportunities to shape the Parish plan and zoning by
ongoing involvement in Parish decisions.
• St. James Parish should adopt an environmental justice policy, embracing an appropriate
definition of environmental justice and acknowledging that all citizens should receive fan-
treatment and have opportunities for meaningful involvement in processes that affect
their health and welfare. The Parish should then work with LDEQ to gather information
about environmental and health hazards in the Parish, and should develop strategies—in
conjunction with other state agencies, such as the coastal zone management program—to
address any identified risks.
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ENDNOTES
U.S. Census Bureau, "American Fact Finder," website,
(visited July 2003).
2 Ibid.
3 Ibid.
Kevin Belange, Director, South Central Planning and Development Commission, Louisiana, Interview (August 13,
2002).
5 U.S. Census Bureau, "American Fact Finder."
Edie Michel, Director of Economic Development, and Diane Brathwaite, Director of Human Resources, St. James
Parish, Interview (August 13, 2002).
7 Diane Brathwaite, Interview (August 13,2002) and Letter (October 9, 2002).
8 Edie Michel, Interview.
9 St. James Parish, "Parish Statistics," website, (visited June 2003).
10 Louisiana Department of Environmental Quality (LDEQ), Toxics Release Inventory (May 2003).
11 U.S. Environmental Protection Agency (EPA), TRI Reporter: Chemical Report-State Report, website, (1997)
(visited June 2003).
uIbid,2QOO.
13 St. James Citizens for Jobs and the Environment, United Church of Christ Commission for Racial Justice,
Southwest Network for Environmental and Economic Justice, Deep South Center for Environmental Justice, Xavier
University, Environmental Justice Resource Center, Clark-Atlanta University, Louisiana Environmental Action
Network, Louisiana labor Neighbor Project, Southern Christian Leadership Conference, Earthjustice Legal Defense
Fund, and Greenpeace, From Plantations to Plants: Report of the Emergency National Commission on
Environmental and Economic Justice in St. James Parish, Louisiana, 3 (September 15 1998)
14 EPA, TRI Reporter.
15
16
Ibid, 2000.
17 Environmental Defense Fund, Scorecard (2000), website, (visited December 2002).
EPA, Title VIAdministrative Complaint re: Louisiana Department of Environmental Quality/Permit for Proposed
Skintech Facility, Draft Revised Demographic Information (April 1998). Some of the facilities within a four-mile
radius of the parish were in other parishes but impacted St. James Parish.
19 EPA, Nonattainment Status for Louisiana Parishes Under the 1-Hour Ozone Standard (Updated January 2000).
20 Environmental Defense Fund, Scorecard.
EPA's Office of Civil Rights includes 12 parishes in the Industrial Corridor, also known as the Mississippi River
Industrial Corridor: Plaquemines, St. Bernard, Jefferson, St. Charles, Orleans, St. John the Baptist, St. James,
Ascension, Iberville, East Baton Rouge, West Feliciana, and Concordia. EPA, Office of Civil Rights, Title VI,
"Mississippi River Industrial Corridor" (April 2, 1998).
EPA, Risk Assessment for Toxic Air Pollutants: A Citizen Guide, 1 (March 1991).
St. James Citizens for Jobs and the Environment, et al., From Plantations to Plants.
24 Ibid, 13.
25 John McQuaid, '"Cancer Alley': Myth or Fact," The Times-Picayune (May 23, 2000).
Ibid.
26
The National Academies, "Better Information Needed to Guide Efforts in Addressing Environmental Justice,"
Press Release (March 5, 1999).
Centers for Disease Control and Prevention, Cancer Burden Data Fact Sheets, Louisiana (2002), Available at
(visited December 2002).
Ibid.
31 Ibid.
32 National Cancer Institute, "State Cancer Profiles, St. James Parish, Louisiana" (2000). Available at
(visited May 2003).
33 Ibid.
34 Louisiana Department of Health and Hospitals, Office of Public Health (OPH) "Louisiana OPH-- Environmental
Epidemiology and Toxicology," website,
(visited June 2003).
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35 Patricia Andrews, Instructor and Registry Liaison, Louisiana Tumor Registry, E-mail (December 19, 2002); and
Dianne Dugas, Manager, Section of Environmental Epidemiology and Toxicology, Office of Public Health,
Louisiana Department of Health and Hospitals, Interview (November 1, 2002).
36 Patricia Andrews, E-mail.
37 Louisiana Department of Health and Hospitals, Office of Public Health, Parish Health Profile 1999.
38 Ibid., 99.
39 Patricia Andrews, Email.
40 Ibid
41 Ibid.
"Ibid.
43 Ibid.
44 Ibid.
45 The Louisiana Tumor Registry includes the following parishes in the Industrial Corridor: East Baton Rouge,
West Baton Rouge, Iberville, Ascension, St. John the Baptist, St. James, and St. Charles.
^Patricia Andrews, E-mail.
47 Ibid.
48 Charlie Cray and Monique Harden, "Environmental Justice in Louisiana," Rachel 's Environment and Health
Weekly (June 4, 1998).
49 Louisiana Environmental Action Network (LEAN), "A Report on Shintech's Title V Permit Application,"
(October 28, 1996) Available at (visited June 20, 2003).
50 EPA, TRI Reporter.
51 John McQuaid, "The Reluctant Warriors," New Orleans Times-Picayune (May 22, 2000).
52 Sara Shipley, "Race, Jobs, Pollution in Bayou," Christian Science Monitor (January 12, 1998).
53 Ibid
54 The other organizations were LEAN, St. John Citizens for the Environmental Justice, Ascension Parish Residents
Against Toxic Pollution, Gulf Coast Tenants Organization, River Area Planning Group, Southern Christian
Leadership Conference Counsel, and Tulane Environmental Law Clinic.
55 EPA, Office of Civil Rights, Title VI Administrative Complaint, re: Louisiana Department of Environmental
Quality/Permit for Proposed Shintech Facility (April 1998).
56 "A public petition under the 1 990 Clean Air Act requesting revocation of the Title V, Part 70 permit issued to
Shintech and It's [sic] Affiliates, Inc., by Louisiana's Department of Environmental Quality," Letter to Carol
Browner, Administrator, EPA (July 23, 1997).
57 See EPA, Office of Civil Rights, Title VI Complaints Filed with EPA.
58 John McQuaid, "Calling in help risks 'outsider' label," New Orleans Times-Picayune (May 22, 2000).
59 Mary-Ann Maidoh, "EPA revokes Shintech air emission permit," Hullabaloo News Online Edition (1997).
Available at (visited June 2003).
60 Ibid.
61 St. James Citizens for Jobs and the Environment, et al., From Plantations to Plants: Report of the Emergency
NationalCommission on Environmental and Economic Justice in St. James Parish, Louisiana, (September 15,
1998), Available at (visited November 2002).
62 Supreme Court of Louisiana. Amendment to Rule XX.
63 Mary-Ann Maidoh, "EPA revokes Shintech."
64 Supreme Court of Louisiana, Amendment to Rule XX.
65 Mary-Ann Maidoh, "EPA revokes Shintech."
66 Shipley, "Race, Jobs," 2.
"Ibid
"Ibid
69 Ibid
70 Ibid
71 Ibid
72 Ibid.
13 Ibid.
74 Edie Michel, Interview.
75 Edie Michel, Interview, and Dale Hymel, Parish President, St. James Parish, Interview (August 14, 2002).
76 Edie Michel, Interview.
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77 Ibid,
1 John McQuaid, "Burdens on the Horizon," New Orleans Times Picuyune (May 21, 2000).
7 Paul H. Templet, Secretary, LDEQ, Memorandum to Police Jury and Council Presidents, Mayors, Planning
Departments, Police Jury Association, Louisiana Municipal Association, "Local Governments' Authority Over
Zoning and Environmental Issues" (June 28, 1990).
80 EPA, Office of the Inspector General, EPA Region 6 Needs to Improve Oversightof Louisiana's Environmental
Programs, 2003-P-00005 (February 3, 2003).
81 Ibid., i.
EPA, Office of Inspector General, Public Participation in Louisiana's Air Permitting Program and EPA
Oversight, 01351-2002-P-0011, i-ii (August 7, 2002).
83 Ibid.
84 Steve Cook, "EPA Ignored Employees' Objections on Pollution Trading, Group Charges," SNA Inc., Daily
Environment Report (November 4, 2002).
85 Ibid.
State of Louisiana, Legislative Auditor, Department of Environmental Quality Performance Audit, Executive
Summary (March 2002).
87 Rick Bragg, "Toxic Water Numbers Days of a Trailer Park," The New York Times, (May 1,2003).
88 Ibid
"Ibid.
90 Ibid.
91 Advisory Task Force on Funding and Efficiency of LDEQ, The Report of the TaskForce in Response to Executive
Order MJF 02-12 (March 1, 2003).
92 American Planning Association, Planning for Smart Growth: 2002 State of the States, 65 (2002). Available at
(visited October 2002).
93 LSA-R.S. 33:106 (West Group 2002).
94 LSA-R.S. 33:108 and LSA-R.S. 33:138 (West Group 2002).
95 LSA-R.S. 39:4.1 (West Group 2002).
96 LSA- R.S. 33:140.61 (West Group 2002).
97 LSA-R.S. 33:131 (West Group 2002).
98 LSA-R.S. 33:108 (West Group 2002).
99 LSA-R.S. 33:106 (West Group 2002).
100 LSA-R.S. 33:135 (West Group 2002).
101 Police Jury Association of Louisiana, "Parish Government Structure," website,
(visited September 2002).
102 Ray Kliebert, Director of Permitting, St. James Parish, Interview (July 2, 2002).
103 St. James Parish, "Parish Department," website, (visited
May 2003).
104 Ibid.
105 Ray Kliebert, Interview (July 2,2002).
106 St. James Parish, "Boards and Commissions of St. James Parish," website,
(visited July 2003).
107 Ibid
mlbid.
Jody Chenier, Director of Operations, St. James Parish, Interview (November 4,2002).
110 Ibid.
111 Greg Ducote, Local Government Liaison, Louisiana State Coastal Zone Management, Interview (November 1,
2002).
112 Dale Hymel, Ray Kliebert, Jody Chenier, Interviews (August 14,2002).
113 Ray Kliebert, Interview (November 4, 2002).
114 South Central Planning and Development Commission, "South Central Planning and Development Commission"
website, (visited July 2003).
115 Kevin Belange and Martha Cazaubin, South Central Planning and Development Commission, Interviews,
(August 13, 2002).
116 Dale Hymel, Jody Chenier, and Ray Kliebert, Interviews (August 14, 2002).
117 Ibid
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I1S Diane Brathwaite, Interview (October 31, 2002).
11 Kevin Belange, Interview.
120 Ray Kliebert, Interview (July 2, 2002).
121 Diane Braithwaite, Interview (October 3 1 , 2002).
122 Ibid.
123 St James Parish, "www.stjamesla.com/James/Ordinance/CH106.DOC," website, (2001),
(visited June 2003).
124 LDEQ, Office of Environmental Services, "La Department of Environmental Quality," website,
(visited July 2003).
125 Ibid.
126 LDEQ, "Organizational Chart," website,
(visited July 2003).
LDEQ, Environmental Justice in Louisiana: An Overview of the Louisiana Department of Environmental
Quality's Community-Industry Relations Group, internal document, 2 (undated). See also, EPA, Office of Civil
Rights, "Title VI Complaints Filed with EPA." Available at
(visited July 2003).
128LDEQ, EnvironmentalJustice, 1-2.
Ibid
I32lbid.,5.
133 Ibid., 8-9.
134
135
LDEQ, Chronology of Accomplishments (undated).
Roger Ward, Community/Industry Relations staff, LDEQ, Interview (May 1, 2003).
136 LDEQ, "Organizational Chart."
137 LDEQ, Community/Industry Relations Group, EnvironmentalJustice Best Practices (SOP) (March 27, 2001).
138 Janice Dickerson, Community/Industry Relations Group, LDEQ, Interview (May 1, 2003).
139 Roger Ward, Interview.
140 Ibid
141 Michael Vince, Director, Permits, Enviornmental Services Division, LDEQ, Interview (April 30, 2003).
LDEQ, Final Report to the Louisiana Legislature on Environmental Justice: as mandated by Act 767 of the 1 993
Legislative Session, (1993).
143 Roger Ward, Interview.
Save Ourselves, Inc. v. Louisiana Environmental Control Commission, 452 So.2d 1 152, 1 157 (La. 1984) required
that LDEQ must be guided by "a 'rule of reasonableness,' which requires [LJDEQ to determine, before granting
approval of any proposed action affectionthe environment, that adverse environmental impacts have been niinimized
or avoided as much as possible consistently with the public welfare. ...[LJDEQ's written findings of act and reasons
for decision must address whether (1) the potential and real adverse environmental effects of the proposed project
have been avoided to the maximum extent possible; (2) a cost-benefit analysis of the environmental impact costs
balanced against the social and economic benefits of the project demonstrate that the latter outweighs the former;
and (3) there are alternative projects or alternative sites or mitigating measures that would offer more protection to
the environment than the proposed project without unduly curtailing non-environmental benefits to the extent
applicable."
LDEQ, Final Report to the Louisiana Legislature on Environmental Justice.
146 Roger Ward, E-mail (May 15, 2003).
LDEQ, Community/Industry Relations Group summary and minutes of the Mississippi Corridor Task Force
(undated).
148 Ibid
149 The "IT Questions" stem from a 1984 lawsuit, Save Ourselves, Inc., v. Louisiana Environmental Control
Commission, which is commonly referred to as the "IT case." The questions are requirements that LEDQ reviews
and considers during certain permit application processes. The questions are: "(1) Have the potential and real
adverse environmental effects of the proposed project been avoided to the maximum extent possible? (2) Does a cost
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benefit analysis of the environmental impact costs balanced against the social and economic benefits of the project
demonstrate that the latter outweighs the former? and (3) Are there alternative projects or alternative sites or
mitigating measures which would offer more protection to the environment than the proposed project without
unduly curtailing non-environmental benefits to the extent applicable?" LDEQ, IT/BFD Guidance (May 22, 2001).
See also, endnote 144.
150 LDEQ, Community/Industry Relations Group summary.
151 Ibid, 52-56.
217
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218
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CONCLUSION
Public administrators who are working to address environmental justice issues are faced with
many challenges but also many opportunities. In the course of the Academy's three studies, the
Panel has found that concerns at the heart of environmental justice problems really relate to how
federal, state, and local governments can better serve all citizens. Solutions to environmental
justice concerns include protecting citizens' health and welfare and ensuring they have
meaningful opportunities to shape decisions that affect their lives and neighborhoods.
The Panel's research has shown that these issues can be addressed by using existing legal
authorities, including current planning laws and zoning ordinances. The Panel has also found
that it is critical for federal, state, and local agencies to work together effectively, because each
level of government brings discrete tools and authorities that are critical to solving current
environmental justice problems and preventing future ones. The federal government must ensure
that its policies, rules, and guidance adequately consider environmental justice concerns, like
localized impacts. State environmental and other agencies must implement their environmental,
public health, planning, and other programs to take into consideration disproportionate impacts
that may heighten risk. States must also ensure that the public has opportunities and the requisite
information to participate fully in decisions about environmental permitting and future economic
development. Additionally, federal and state agencies have an important responsibility to
enforce environmental laws so that no community or neighborhood suffers the adverse
consequences of pollution.
There are also many opportunities for federal and state governments to provide the technical
assistance often needed by local governments. For their part, local governments have a unique
responsibility for planning and zoning decisions that can significantly affect the environment,
public health, and quality of life for their citizens.
The Panel's research has also demonstrated that addressing environmental justice problems
requires government officials at every level to:
• Exercise leadership by recognizing environmental justice as an important issue and by
establishing accountability to address these problems;
• Set priorities to reduce risks caused by pollution and other hazards;
• Engage the public early and proactively in substantive discussions about decisions that
affect their health and welfare;
• Adopt effective mechanisms for communicating with the public and provide the public
with adequate information so they can make useful contributions prior to agency
decisions; and
• Coordinate with other levels of government so local citizens can benefit from the unique
kinds of support that agencies at each level can provide.
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The Panel believes that the goal of environmental justice can be achieved by every level of
government We have found promising examples of strategies and activities at local, state, and
federal levels that can produce positive results for communities. The Panel hopes that the best
practices we have described in all three studies will serve as useful models to help public
administrators, citizens, nonprofit groups, and industry in quickly making real progress toward
achieving environmental justice for all communities.
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APPENDICES
221
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222
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APPENDIX A
INTERVIEWEES
CALIFORNIA
Manuel Acosta, Business Development Specialist, City of Huntington Park
Bill Chow, Redevelopment/Economic Development Manager, City of Huntington Park,
Bahrain Fazeli, Staff Researcher, Communities for a Better Environment
Henry Gray, Assistant Director, Community Development and Redevelopment, City of
Huntington Park
Dean Hickman, Resident, Huntington Park
Yuki Kidokoro, Lead Organizer, Communities for a Better Environment
Gregory Korduner, City Manager, City of Huntington Park
Jessica Maes, Councilwoman, City of Huntington Park
Julie O' Leary, Senior Management Analyst, Community Development Department, City ot
Los Angeles .
Veronica Soto, Business Outreach Manager, Alameda Corridor Transportation Authority
Jesus Torres, Community Organizer, Center for a Better Environment
Jorge Villanueva, Youth Program Coordinator, Center for a Better Environment
Jack Wong, Assistant City Manager, City of Huntington Park
Larry Wiggs, Consultant, Tutor Saliba Corporation
ILLINOIS
Anatoly Belogorsky, Permit Engineer, Illinois Environmental Protection Agency.
Peggy Bradley, Public Information Coordinator, Metropolitan Water Reclamation District
Juanita Charlton, Assistant Commissioner, Far South Planning District, Chicago
Kathleen Dickhut, Planner, Far South Planning District, Chicago
Marilyn Engwall, Planner, Far South Planning District, Chicago
Matthew Fortney, Engineer, Chicago Department of Environment
Katherine Greenberg, Director of Public Information, Chicago Housing Authority
Alan Keller, Manager, Northern Municipal Unit, Bureau of Water, Illinois Environmental
Protection Agency
Cheryl Johnson, People for Community Recovery
Mardi Klevs, Greater Chicago Regional Team Manager, U.S. Environmental Protection Agency
Dennis McMurray, Public Information Officer, Illinois Environmental Protection Agency
Jill Murray, Office Secretary, Chicago Department of Planning and Development
Kurt Neibergall, Manager, Office of Community Relations, Illinois Environmental Protection
Agency
Ken Page, Environmental Justice Officer, Illinois Environmental Protection Agency
Kimberly Worthington, Assistant Commissioner, Department of Environment, Chicago,
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LOUISIANA
Kevin Belanger, Director, South Central Planning and Development Commission
Diane Brathwaite, Director, Human Resources, St. James Parish
Martha Cazaubin, South Central Planning and Development Commission
Jody Chenier, Director of Operations, St. James Parish
Janice Dickerson, Louisiana Department of Environmental Quality, Community/Industry
Relations Group 3
Greg Ducote, Local Government Liaison, Louisiana State Coastal Zone Management
Dianne Dugas, Manager, Section of Environmental Epidemiology and Toxicology, Office of
Public Health, Louisiana Department of Health and Hospitals
Albertha Hastin, Louisiana Environmental Action Network
Dale Hymel, Parish President, St. James Parish
Ray Kliebert, Director of Permitting, Office of Operations, St. James Parish
Edie Michel, Director of Economic Development, St. James Parish
Gary Miller, Louisiana Environmental Action Network
Marylee Orr, Louisiana Environmental Action Network
Richard Parro, Sanitarian Parish Manager, Office of Public Health, Louisiana Department of
Health and Hospitals
Florence Robinson, Louisiana Environmental Action Network
Michael Vince, Director, Permits, Environmental Services Division, Louisiana Department of
Environmental Quality
Roger Ward, Community/Industry Relations staff, Louisiana Department of Environmental
Quality
PENNSYLVANIA
Patrick R. Andersen, Special Assistant to the Region III Administrator, U.S. Environmental
Protection Agency
Jerome Baiter, Lawyer, Public Interest Law Center of Philadelphia
Francine Carlini, Air Quality Program Manager, Pennsylvania Department of Environmental
Protection
Susan Cordes, County Solid Waste Management Official, Delaware County
Herman Fryer, Chairman, Environmental Advisory Board, City of Chester
Alisa Harris, Director, Office of Environmental Advocacy, Pennsylvania Department of
Environmental Protection
Susan W. Hauser, Manager, CIS & Information Services, Delaware County Planning
Department J &
Karen Holm, Environmental Planner, Delaware County
Neil Kinsey, Local Government Policy Specialist, Governor's Center for Local Government
Services
William Payne, Director, Planning Department, City of Chester
Dave Sciocchetti, Executive Director, Chester Economic Development Authority
Irshad Shaikh, Health Department, City of Chester
Dr. Masood Shaikh, Director, Health Department, City of Chester
224
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- — '
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Trish Young,
225
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226
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227
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228
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APPENDIX C
wm,t«, H. H
Agenty Stcrttsrv,
'
Sffffe o/ California
California Eiwirorim.entaTProteetiaTi Agency
Air K«oun»s Baud
.nJl Offic, of E«vl w
-i-hne..* of Pr.,tic«5e
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MEMORANDUM
TO: All Cal/EPA Employees
FROM: Winston H. Hickox
Agency Secretary
DATE: March 29, 2002
SUBJECT: CAL/EPA'S COMMITMENT TO ENVIRONMENTAL JUSTICE
California has long been a pioneer in taking initiative to reduce environmental and public
health risks posed by air and water pollution, solid and hazardous waste management,
and pesticide application. In this tradition, our Golden State stands as one of the
nation's leaders on the issue of environmental justice, being one of the first states in the
Nation to have passed legislation to codify environmental justice in state statute; in fact,
Governor Davis signed six bills related to environmental justice since 1999.
Cal/EPA is firmly committed to the achievement of environmental justice.
Environmental justice for all Caltfornians is an Agency priority.
Accordingly, we must continue to seek opportunities to implement environmental justice
principles, especially those with a concerted, cross-media approach-to ensure the
integration of environmental justice into all programs, policies, and activities within our
Boards, Departments, and Office (BDOs).
Our environmental justice mission reflects the Agency's commitment to this issue:
"To accord the highest respect and value to every individual and
community, the CaUEPA and its BDOs shall conduct our public health
and environmental protection programs, policies and activities in a
manner that is designed to promote equality and afford fair treatment,
full access and full- protection to all Catrfomians, including tow income
and minority populations. "
The snergy challenge teeing California is reat. Evwy Catitornian needs to taka Immediate action to reduce energy consumption.
For * Kst erf simple ways you can reduce demand and cut your oretgf costs, checkout vtww.flexyourpowef.ca.gov.
1OOI J Street
Sacrimcnto, CA 95314
phone: 9iS.445.384S .j-fwcnBi6.445.640I
229
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All Cal/EPA Employees
March 29, 2002
Page 2
SUBJECT: CAL/EPA'S COMMITMENT TO ENVIRONMENTAL JUSTICE
As I've stated before, 'Protecting human health and the environment is a job that is
never done' and indeed, the opportunities for analysis and action for environmental
justice in California are varied and great. The goal of our mission will be attained when
all Califomians. regardless of race, culture, or income, enjoy the same degree of
protection from environmental and health hazards and equal access to our decision-
making processes.
Environmental justice is defined in statute as, "The fair treatment of people of all races,
cultures, and incomes with respect to the development, adoption, implementation, and
enforcement of environmental laws, regulations and policies." (Government Code
Section 65040.12)
Statute obligates the Agency and its BDOs to do the following:
• Conduct all programs, policies, ond activities within Cal/EPA and if s BDOs in a
manner that ensures the fair treatment of people of aj| races, cultures, and
income levels, including minority populations and low-income populations of the
State;
* Promote enforcement of all health and environmental statutes within its
jurisdiction in a manner that ensures the fair treatment of all Calffornians,
irrespective of race, culture, and income;
• Ensure greater public participation from environmental justice stakeholders in the
development, adoption, and implementation of environmental regulations and
policies;
• Improve research and data collection for programs relating to the hearth and
environment of p«opl* of att races, cultures, and income levels, including minority
populations and low-income populations of the State.
• Identify among people of different socioeconomic classifications differential
patterns or consumption of natural resources for our programs.
Clearly, there is no one simple solution to environmental injustice, but rather a host of
existing procedural and programmatic tools available to address the issue. In order to
achieve meaningful environmental justice, we should, as a procedural and practical
matter:
230
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All Gal/EPA Employees
Morch 29, 2002
PageS
SUBJECT: CAUEPA'S COMMITMENT TO ENVIRONMENTAL JUSTICE
• Enhance our mechanisms for public involvement end input et all levels of the
decision-making process to ensure early, accessible and meaningful participation
of all stakeholders (e.g. fact sheets, availability of language translation, and
enhanced public outreach);
• Invest in capacity development of all stakeholders, particularly those historically
not engaged in the decision making process (e.g. technical assistance at the
community level and leveraging of resources to support local environmental
justice efforts);
* Explore opportunities to address environmental justice within current statutory
and. regulatory structures and identify any necessary changes or clarifications;
• Create partnerships with stakeholders in the environmental decision-making
process, understanding that environmental justice requires a collaborative
approach at all levels;
• Utilize research and proactive tools and approaches to environmental justice
issues, such as cumulative impact analysis and pollution prevention to inform
how we prioritize, develop, and implement our efforts to reduce and/or eliminate
environmental pollution and deliver the benefits of environmental protection; and
• In light of our State's current economic situation, we must be more vigilant in
ensuring environmental justice remains a priority and resources continue to be
directed this key issue.
I have asked each of the Boards, Departments, and Office to incorporate environmental
justice into their overall strategic plans. This has been accomplished and now we need
to move forward in earnest to implement those plans. To assist in our efTuits, titeie are
a number of resources 1 recommend you become familiar with and take advantage of as
follows:
• The Interagency Working Group on Environmental Justice (IWG):! chair,
this Group along with the Governor's Office of Planning and Research Director,
including all the heads of the Boards, Departments, and Office within Cal/EPA.
The IWO is responsible for guiding programmatic and policy development related
to environmental justice;
231
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Alt Cal/EPA Employees
March 29, 2002
Page 4
SUBJECT: CAL/EPA'S COMMITMENT TO ENVIRONMENTAL JUSTICE
• The External Cal/EPA Advisory Committee on Environmental Justice: This
Committee is made up of various EJ stakeholders from community groups,
environmental organizations, business, local/regional planning agencies, air
districts, and Certified Unified Program Agencies to provide advice and
consultation on environmental justice to Cal/EPA;
• The Cal/EPA Environmental Justice Website
(www.caleDaca.OjOv/EnvJusticje/): The website contains the most current
information on environmental justice concerns including a Calendar of Events on
environmental justice occurring throughput the State.
• Cal/EPA Environmental Justice Fundamentals Training Program
(hjlp;tfepanet/^nvJusticeAra)ningi: The training is offered at various times
throughout the year to bring greater awareness of environmental justice issues
within Cal/EPA.
Let's continue io work in this spirit to ensure environmental justice is not a series of
paper exercises, but is a tangible goal attained for and by all Califomians. The
Assistant Secretary for Environmental Justice, Romel Pascual, and his staff are
available to assist you. Mr. Pascual can be reached at (916) 324-8425 or via email at:
rpascualfajcalepa. ca. gov.
I appreciate your continued support in this matter.
23;
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APPENDIX D
City of
HUNTINGTON PARK California
COMMUNITY DEVELOPMENT DEPARTMENT
6550 MILES AVENUE, ROOM 145
HUNTINGTON PARK, CA 90255
January 18, 2000
TO: Honorable Mayor and Members of the City Council
FROM: Jack L. Wong, Assistant CAO/Director of Community Development & Redevelopment
SUBJECT: Huntington Park Air Quality Improvement Task Force's (AQITF ) response to the South
Coast Air Quality Management District's (AQMD) findings from the MATES II study.
Staff requests that the Council approve the report prepared by the AQITF, and authorize
the Mayor to forward it to the AQMD, cities in the Southeast Los Angeles area, and all other
appropriate agencies.
REQUEST:
BACKGROUND: The AQMD recently conducted an air quality study titled the'Multiple Air
Toxics Exposure Study.II (MATES II) of the South Coast Air Basin. The srudy concluded that- the
Southeast Los Angeles area, which includes the City of Huntington Park, had the highest level of toxic
air pollution in the Basin. The AQMD issued a 90 day public comment period (until February 4, 2000) to
receive comments which can be incorporated into the development of future comprehensive control
strategies and regulations to reduce toxic air emissions. The Huntington Park City Council agreed to
convene the AQITF to respond to the MATES II study and develop a comprehensive plan to reduce toxic
air emissions.
ANALYSIS: The Task Force consisted of different levels of participation from 18 individuals and/or
agencies of different backgrounds (see attached list within report). The meetings consisted of technical
presentations and round-table discussions, where ideas and recommendations were formed on a consensus
basis from the variety of different perspectives. By virtue of the Task Force's exploration of measures to
improve air quality, it became apparent that effective measures will need to be implemented at a regional
level. Due to this fact, the Task Force focused on addressing the issue at a regional level, in addition to
measures that could be implemented locally.
RECOMMENDATION: Staff recommends that the Council approve the attached AQITF Report, and
authorize the Mayor to forward it to the AQMD, cities in the Southeast Los Angeles area, and all other
appropriate agencies.
Respectfully submitted,
Jack L.
Assistant CAO/Director of Community
Developmenr & Redevelopment
233
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January 18,2000
HUNTINGTON PARK AIR QUAUTY
IMPROVEMENT TASK FORCE REPORT
BACKGROUND
The South Coast Air Quality Management District (AQMD) recently conducted an
air quality study referred to as the Multiple Air Toxics Exposure Study II (MATES II)
for the South Coast Air Basin, which is comprised of Orange County and the non-
desert portions of Los Angeles, Riverside and San Bernardino Counties. The study
monitored for over 30 toxic air pollutants, and assessed the potential risk of those
pollutants. On November 5, 1999, the completed MATES II report was released to
the public indicating the results.
The study indicated that since the MATES I study in 1987, ak toxic levels have
dropped by approximately 50%, which is a significant reduction. However, since that
rime, diesel particulates have been listed as a toxic cancer risk air contaminant.
Mobile diesel emission contaminants, such as tracks and buses, account for
approximately 70 % of the air toxins in the Basin. Twenty Percent (20%) are from
mobile, primarily gasoline powered, cars and trucks, and the final 10% are from
stationary sources such as refineries, plating businesses, dry cleaners, gas stations, etc.
The study concluded that the Southeast Los Angeles County area, which includes the
Gty of Huntington Park, had the greatest toxic air concentrations due to the
dominance of mobile sources in this urban core. According to the study, the average
cancer risk from toxic air pollutants, when continuously exposed over a 70 year
lifespan, in the entire South Coast Air Basin is approximately one (1) in 715 people.
For comparison, the risk to residents specifically in the Southeast Los Angeles
County area is approximately one (1) in 589 people.
The AQMD has issued a 90 day public comment period (until February 4, 2000) to
receive comments which can be incorporated into the development of future
comprehensive control strategies and regulations to reduce toxic emissions.
As a result of the study's findings, the Huntington Park Gty Council agreed to
convene the Huntington Park Air Quality Improvement Task Force (AQFTF) for the
purpose of protecting the public's health by raking a strong and proactive role to
reduce the level of TOXIC air pollutants, and create a safe environment for residents
and visitors of the community. Responsibilities of the Task Force included drafting a
234
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Huntiogton Park Air Quality
Improvement Task Force Report
January 18, 2000
Page 2
response to the MATES II study, develop a comprehensive plan to reduce toxic
emissions, and complete this effort by January 18,2000.
The Task Force invited participation from government officials, community groups,
residents, technical experts, and other organizations and agencies. Different levels of
participation from 18 individuals and/or agencies of different backgrounds (see
attached list) assisted in the Task Force's process. Six (6) meetings were scheduled to
accomplish the task. The methodology of the meetings consisted of technical
presentations and round-table discussions, where ideas and recommendations were
formed on a consensus basis from the variety of different perspectives. Due to the
limited rime (six weeks) given to provide comments, the Task Force sessions were
intensive, yet effective given the short time period.
During the Task Force's exploration of measures to improve air quality, it became
apparent that effective measures have to be implemented at a regional level. Due to
this fact, the Task Force focused on addressing the issue at a regional level, in
addition to measures that could be implemented locally.
The Task Force's Mission Statement and list of recommendations to help reduce
toxic air pollution, which are provided as "Principles" and "Specific Measures"
categories, are as follows:
MISSION STATEMENT
The Hunrington Park Air Quality Improvement Task Force's purpose is to protect
the public's health by taking a strong and proactive role to reduce the level of toxic
air pollutants, and create a safe environment for residents and visitors of the
community.
1) By virtue of the Task Force's efforts in exploring measures to improve air
quality, it is apparent th'at effective measures have to be implemented at &
regional level, and a collaborative effort must be undertaken to address this
concern.
2) That any future studies and/or reports, conducted and/or prepared by any
agencies regarding air quality not identity specific cities or locations, but rather
focus on general areas. Results that are overly site specific can negatively affect
2.35
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Huaticgton Park Air Quality
Improvement Task Force Report
January 18,2000
Page 3
the character of a community, and can create a false sense of security to cities in
the same general area with relatively the same level of air pollution.
3) That areas found to have the worst air pollution problems, specifically the
Southeast Los Angeles County area, should be the focus of toxic air emission
reducing programs and funding (by all relevant agencies including the AQMD,
MTA, LAUSD, ACTA, CALTRANS, EPA, State AKB, SCAG, DMV, County,
Cities, etc.)- *ln order for the Southeast Los Angeles County area to be equal
we need an unequal (greater) amount of assistance."
4) That current and/or projected air pollution mitigation measures (Le. use of
ethanol) take into consideration all aspects of implementation, including delivery
methods, and mitigate those impacts. It is important to stay focused on the
fundamental intentions and goals when proposing new mitigation measures.
5) The intent of the Task Force's report is not to be critical of other agencies, but
rather to stimulate a regional collaboration, with the understanding that other
municipalities and agencies are currently addressing the issue politically and
feasibly to the best of their ability.
6) That the AQMD initiate and implement a more comprehensive review process
with stricter regulations (Le. a model air quality ordinance) for stationary sources
emitting pollution, for all cities in the Southeast Los Angeles area. All local
efforts, however, should be implemented equally on a regional basis.
A) Gties should consider various permit review changes in conjunction
with the assistance from AQMD, such as: Longer noticing periods and
additional noticing methods for the establishment of toxic emission
producing projects/businesses; stricter zoning requirements; provide
bi-linguai noticing when relevant; designating certain types of
businesses as conditional uses requiring more detailed environmental
review; use of CEQA as a base tool fur additional review procedures;
include questions in environmental checklists regarding use of dicsel
vehicles; local incentives for ridesharing/use of clean emission
vehicles; implement a monetary fine for gross polluters; swift and
strong enforcement methods; no diesel vehicle idling; etc.
236
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Huntington Paris Air Quality
Improvement Task Force Report
January 18, 2000
Page 4
B) Tnat the AQMD provide cities with a list of all establishments
requiting AQMD permits, primarily potential toxic air emitting
establishment* (i.e. dry cleaners, chrome plating businesses, gas
stations, truck terminals, etc.), whereas cities can designate them in
appropriate zones, with appropriate entitlement requirements.
Q That the AQMD Board adopt a more stringent Rule 1402 in their
March (2000) Board meeting by amending the threshold to lin a
million cancer risk per facility and a hazard index of 1.
7) That periodic mobile diesel source (Le. trucks and buses) checkpoints be set up
throughout the Southeast Los Angeles area to enforce emission standards.
8) That AQMD Proposed Rule 1190 consider other regulation avenues including
components for any mobile source emission reduction possible, particularly for
diesel, such as that all government and private companies with 10 or more diesel
vehicles be required to change to cleaner burning vehicles within a specified
abatement period. Funding sources may include Federai, State, Regional and/or
Local sources. (Specifically, modify AQMD'e Proposed Rule 1190 to include
private industry.)
9) That all existing stationary operations emitting toxic air pollution (Le. dry
cleaners, chrome plating businesses, gas stations, etc. ) be monitored, and any
establishments not meeting a dean air threshold be given an abatement period
to achieve standards. This should be mandated at a mass scale similar to the
seismic retrofitting requirement and underground gas tank upgrading for gas
stations.
10) That all relevant agencies (including AQMD, MTA, LAUSD, ACTA,
CALTRANS, EPA, SCAG, State ARB, DMV, County, Cities, etc.) increase
funding and promotion of congestion management programs, traffic projections
and traffic circulation improvements (including studies and physical
improvements).
11) That on "800" number be established and marketed throughout the Southeast
LA. area for the public to report all forms of air pollution. Immediate
investigation and enforcement would be necessary.
12) That schools and other sensitive receptors (e.g. day care centers, hospitals, etc.)
in the Southeast LA- area install air filtration systems.
237
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Huntington Park Air Quality
Improvement Task Force Report
January 18,2000
PageS
13) That schools in the Southeast LA. area be consulted regarding the feasibility of
implementing a health-screening program for respiratory illnesses, and monitor
absences to determine how many absences are respiratory related.
14) That schools in the Southeast L.A. area develop "Neighborhood Schools"
instead of "Mega Schools", which have the potential for greater traffic impacts.
15) That emphasis should be given to grants, bond initiatives, and any other
financial resources, to provide additional trees, parks, and landscaping. All
Southeast L.A. cities should advocate maximum green open space and
landscaping for all new development, including public right-of-ways {Le.
landscaped medians). Qties can implement a titywide urban landscape element
or master plan for maximum dispersion. Develop an integrated regional master
plan for parks, open spaces, trails, and bikeways
16) That limitations on the days of the week when diesel trucks can use
thoroughfares be implemented in the Southeast I*A. area (Le. only on odd or
even days), unless designated as a clean emissions vehicle (special sticker?).
17) That all agencies consider more carefully sensitive receptors when initiating
projects that will impact air quality.
18) That CALTRANS conduct a study for the 110 freeway in addition to the 710
freeway study.
19) That CALTRANS provide High Occupancy Vehicle (HOV) lanes and/or
special Truck lanes (for clean emission designated vehicles) on the 110, 710 and
other freeways.
20) That the AQMD create or designate a special division (liaison, etc.) to provide
technical assistance and coordination specifically for the Southeast L.A. area
cities.
21) That Proposition 10 (tobacco) funds be used for air quality and alternative fuel
related improvements (and oppose the initiative to repeal Prop 10).
22)
That all relevant agencies (mdu^ AQMD, MTA, LAUSD, ACTA,
CALTRANS, EPA, SCAG, State ARB, DMV, County, Cities, etc.) provide
funding for planting a maximum amount of trees and landscaping along the
alameda corridor.
238
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Huntington Paik Air Quality
Improvement Task Force Report
January 18,2000
Page 6
23) Promote and expand the Carl Moyer program (which is a funding program to
convert diesel engines to heavy duty cleaner burning fuel engines).
24) That an inventory for entire Southeast LA. area be taken of all toxic air emitting
sources (Le. daily diesel truck/bus count, dry cleaners, chrome plating
companies, etc.) and focus on mitigating those areas in particular. (Checking
SIC codes for toxic emitting sources can help achieve this.)
25) That the California Air Resources Board increase the regulation of diesel vehicle
emissions and expedite the schedule for fuel improvement and exhaust filtering,
and other emission standards. Additionally, that the ARB provide a
presentation to the AQITF.
26) That the California Air Resources Board require diesel vehicles to pass regular
smog checks similar to gas powered vehicles, and gradually phase in increasing
emission standards.
27) That the MTA replace all diesel buses with dean air (CNG) buses as soon as
possible.
28) That municipalities and schools in the Southeast LA. sub-region strictly enforce
the school bus "no idling" regulations.
29) That schools and other sensitive receptors work with the Asthma and Allergy
Foundation to target the Southeast Los Angeles area for a "Breath Mobile",
which is an existing mobile program which screens and treats certain respiratory
ailments.
30) That all relevant agencies (including AQMD, MTA, LAUSD, ACTA,
CALTRANS, EPA, SCAG, State ARB, DMV, County, Cines, etc.) implement
parent education programs for air pollution and related effects.
31) That ACTA complete a supplemental environmental review, from original EIR,
addressing diesel emissions.
32) That Railroad Companies consider off-peak train operations in order to reduce
concentration of emissions.
33) That incentives be created for businesses to convert to better emission control
technology / equipment.
239
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Huntington Park Air Quality
Improvement Task Force Report
January 18» 2000
Page?
34) That funding to establish an alternative fuels dispensing facility for both public
and private sector use be made available.
35) That the Southeast L.A. area COG (Gateway) explore ways to increase project
review resources for improved processing, policy, technical expertise, etc.
36) That the AQMD do periodic monitoring of ambient air in neighboring cities to
corroborate emissions findings, as well as, evaluate reduction efforts.
37) That .SELAC (former name of Gateway COG) report from a few years ago be
revisited and possibly updated.
38) Advocate locally, regionally, and at State and Federal level for improved regional
planning and coordination and funding that can have positive impact on all
sources of emissions such as::
A) Regional sharing of impacts from airports, truck, trains, etc. (e.g. a
regional growth plan for all airports, particularly as a alternative to LAX
expansion, ports and port businesses to help "pay" for impacts; etc.)
i. That the pending Los Angeles Airport (LAX) expansion be
opposed by the Southeast Los Angeles area City Councils,
because it will create an additional source of pollution to the area.
B) Smart growth concepts for planning and projects that provide funding
and incentives for better transit oriented development particularly into
regionally targeted growth areas where transit supports density, where
less dense or less air impacted areas can support more growth while
offsetting the pressure in high impact areas such as the Southeast L.A.
cities and also allowing, for example, better opportunity/support for
open space increases; tie regional housing allocation to this concept;
require regional growth management elements in all general plans that
addresses air quality and transportation and other shared regional issues;
improve mixed use and pedestrian oriented development
funding/ financing/incentives /planning (Le. less auto-dependence).
C) Improve funding and data sharing for GIS applications among and
between all agencies that can also be used to do local and regional "what
if* type analysis of uses, growth impacts, environmental impacts,
transportation, etc.
240
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Hunnngton Fade Air Quality
Improvement Task Force Report
January 18,2000
Page8
39) Tie in Brownfield (environmentally distressed site) funding with new "dean"
uses.
40) Pursue/advocate/implement any other sound environmental policies or
projects such as: "green'Vsustainable building codes; air conditioning/filtration
mitigations, upgrades, or improvements for sensitive receptors or other general
impact areas for all buildings but particularly schools and homes.
41) That the Gty of Huntington Park Chief Administrative Officer, or designee,
coordinate a meeting comprised of City Managers/Chief Administrative
Officers from those cities included in the Gateway Gties Council of
Governments (COG). The meeting shall address the issues within the AQITF
report, proposed AQMD Rule 1190, and Air Toxics Control Plan, as well as
other measures to reduce air pollution within the Southeastern cities sub-region.
rru3:rcpns. to aqmd mates2 stdy. (final draft)
241
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tt Parfe Air Qwiity Improvement
Task Sorce Participants
'articipants
.osario Marin,. Mayor
liry of HimtJnpton Park
Jc Loya, Coundlmcrtiber
City of Hunnngton Park
Marco Fircbaugh, Assemblyman
Stale Assembly, 50th District
Cesar Mons, Representative
Office of State Senator Martha Escutia
South Coast Air Quality Management
District (AQMD)
Communities for a
ietier Envifonment (CBE)
IliLJ Piazza
.x>6 Angeles Unified School District
:rank Vielrna, Business Owner
Envio Exprecs
Mashi Nyssen, Coordinator
Pacific- Boulevard Merchants Acsociation
(a.k,a. BID)
Kay Hams, Interim Director
Hunringion Park Department of Parks
and Recreation
Dean l-Uckman, Resident
City of Huntinpton Park
IJnda Marcjuez, Resident
Ciry of Huntin^fon P«tk
f'.vclyn Munoz, U.S.C Student /Resident
City of Hunrington Park
l^r. Henry Gong
U.S.C. Rancho Los Amigos HoEpital
Victor Griego
Djverie Straicjjiei For Organizing
Andrea Hhcko
Keck School of Medicine,
Environmental Health Sciences CentRL
Alameda Corridor Transportation
Auihoriry (ACTA)
Metiopolitao Transportation
Authority (MTA)
*hone
lumber
213) 968-2639 pgr.
323) 582-4550
323) 562-7880
323)724-6175
909) 396-2000
(213)486-5114 x.107
213)743-5086
(323)584-1410
(323) 584-6360
(323)584-6218
(323)581-0802
(323)582-1322
(562)401-/b61
(562) 466-0904 pp.
(323) 349-0661
(323) 442-3077
(310)816-0460
(213)922-5882
'ax
lumber
P23) 588-4577
323) 58S-4577
P23) 562-2380
(323) 724-6566
909)396-3641
213)486-5139
213)749-7201
323)584-1404
(323) 5B2-2775
(323) 58B-4571
(323) 58S-0231
(562) 8U3-68B3
(323) 349-0864
(323) 442-3272
(310)816-0264
(213)922-4928
.ddress
550 Miies Avenue, Hunnngton
ark, CA 90255
550 Mies. Avenue, Hunungton
Park, CA 90255
501 Atlantic Avenue, Suite D,
Cudfthy, CA 90201
400 N. Momebello Boule\'ard,
te. 101, MontebeUo, CA 90640
-1 865 East Copley Dnvc
Diamond Bar. CA 91765
605 W. Olympic Blvd., Sic. 85(1
Los Angeles, CA, 9001 5
P.O. Box 5 1 2298
Los Angeles, CA 90051-2298
6330 Pacific Blvd., Suiic 201
Huntmgton Park, CA 90255
6330 Pacific Blvd., Suite 204
Hunringion Park, CA 5)0255
6550 Miles Avenue
Hunangton Park, CA 90255
J413 Marbrisa Avenue
Hunringion Park, CA 90255
6120 Cottage Street, WA
Hunbngton Park, CA 00255
16yi4Dulce YnezLanc
Pacific Palisades, CA 90272
5031 N. Fipjeroi, Suite #25
Los Angeles, CA 90042
1540 Alcazar Street. CHP #236
U» Angeles, CA. 900W
1 Civic Plaza, Suite 600
Carson, CA W74b
900 Lyon Street
l.os Angeles, CA 90012
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APPENDIX E
CHAPTER 2
Conceptualizing the General Plan
All statutory references are to the California Government Code unless otherwise noted
Preparing or comprehensively updating a gen-
eral plan is an important undertaking. The resources
required of the planning agency to prepare an ad-
equate general plan are potentially great. Yet many
people outside of the planning and development
world are not familiar with the general plan and
the role it plays in shaping our communities. So
why plan?
Part of the answer is that each city and county
has a statutory responsibility to adopt a general
plan, as described in Chapter 1 (§65300). Once
adopted, each city or county has a duty to "peri-
odically review and revise their general plans as
circumstances warrant..." (§65103(a), Citizens
ofGoleta Volley v. Board of Supervisors (1990) 52
Cal. 3d. 553}.
In addition, preparing, adopting, implement-
ing, and maintaining the general plan serves to:
* Identify the community's land use, circula-
tion, environmental, economic, and social
goals and policies as they relate to land use
and development.
* Provide a basis for local government decision-
making, including decisions on development
approvals and exactions.
* Provide citizens with opportunities to partici-
pate in the planning and decision-making pro-
cesses of their communites.
* Inform citizens, developers, decision-makers,
and other cities and counties of the ground
rules that guide development within a particu-
lar community.
The general plan bridges the gap between
community values, visions, and objectives and
physical decisions such as subdivisions and public
works projects.
The California Legislature declared in 1976
that "decisions involving the future growth of the
state, most of which are made and will continue to
be made at the local level, should be guided by an
effective planning process, including the local gen-
eral plan" (§65030.1). The Legislature has further
declared that the state's land is an exhaustible re-
source, not just a commodity, and is essential to the
economy, environment, and general well-being of the
people of California (§65030). The need to balance
population and economic growth with environmen-
tal quality has long been a concern of Californians.
State planning law, the California Environmental
Quality Act, and the Cortese-Knox-Hertzberg Local
Government Reorganization Act are three examples
of California's efforts to plan responsibly.
SUSTAINABLE DEVELOPMENT
Recently, the "sustainable development" and
"smart growth" movements have encompassed
established principles of good planning and advo-
cated a proactive approach to future development.
There is no precise definition of sustainable devel-
opment, but its basic concept involves meeting the
needs of current generations without compromising
the needs of future generations. Sustainable devel-
opment can be further defined as balancing the
"Three E's:" environment, economy, and equity.
"Smart growth" is a similar concept, although
some feel sustainability is broader. The goals and
methods of smart growth and the related "New
Urbanist" movement are compatible with sustain-
able development.
Sustainability goals include the following:
* Decreasing urban sprawl.
+ Preserving open space and prime agricultural
lands.
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• Creating strong economies.
• Creating compact, integrated communities.
• Ensuring the availability of affordable hous-
ing.
4 Promoting alternative, less polluting modes
of transportation.
* Promoting energy- and resource-efficient in-
dustry.
• Promoting waste reduction programs such as
recycling.
• Developing community-driven strategic plan-
ning and collaborative regional planning.
The comprehensive, integrated, and long-term
nature of the general plan makes it an ideal ve-
hicle for implementing local sustainable develop-
ment goals. While preparing or amending a general
plan, sustainable development policies or programs
may be addressed within the various/elements of
the plan. For example, policies on minimizing ur-
ban sprawl through limitations to development may
be addressed in the land use element; policies for
prime agricultural land preservation may be intro-
duced in the open-space element; and the trans-
portation element may be used to address public
transportation concerns.
The principles of sustainable development
may also guide the overall goals of the general plan
For example, Santa Clara County's general plan.
addresses four themes of sustainable development
in the organization of its general plan vision: so-
cial and economic well-being, managed and bal-
anced growth, livable communities, and
responsible resource conservation. The general
plan's goals for social and economic well-being
include achieving "a healthy, diverse economy and
adequate employment opportunities11 by reaching
"sustainable levels of growth and job formation
consistent with planned improvements in housing,
transportation, urban services, and maintenance of
environmental quality." Goals for the other themes
also reflect the necessary balance among the so-
cial, environmental, and economic goals of sus-
tainable development.
General plans may also be combined with
other documents to promote sustainability. For
instance, the City of Pasadena uses a quality of
life index to identify, measure, and set quality
of life indicators for a healthier, more sustain-
able city. "The Quality of Life in Pasadena" in-
dex combines information from the city's general
plan and other documents and addresses such
topics as the environment, health, education,
transportation, the economy, and employment.
The concept and application of sustainable de-
velopment is evolving through creative interpreta-
tion and use.
JOBS/HOUSING BALANCE
While the mandatory elements of the general
plan are not statutorily required to identify spe-
cific economic issues, the physical growth of the
community is clearly interrelated to its economic
growth. The availability and use of land and infra-
structure requirements such as housing, circula-
tion, water, and energy are all within the purview
of the general plan. Many jurisdictions develop
more explicit economic development policies in
an optional economic development element (as
discussed in Chapter 6). One issue that cuts across
several elements of the general plan is jobs/housing
balance.
Relying on the automobile as our primary
means of transportation has encouraged patterns
of development and employment that are often in-
efficient. Suburbanites routinely commute 25 miles
or more from their homes to their places of em-
ployment. Jobs are dispersed throughout employ-
ment regions, making public transit impractical for
most people. Car trips between home and the gro-
cery store (or the bank, the dentist, the restaurant,
etc.) are longer than necessary because residential
and commercial areas are not convenient to one
other.
Jobs/housing balance is based on the premise
that commuting, the overall number of vehicle trips,
and the resultant vehicle miles traveled can be re-
duced when sufficient jobs are available locally to
balance the employment demands of the commu-
nity and when commercial services are convenient
to residential areas.
Planning for a jobs/housing balance requires
in-depth analyses of employment potential (exist-
ing and projected), housing demand (by income
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group and corrected for regional housing opportu-
nities), new housing production, and the relationship
between employment opportunities and housing
availability. Other factors such as housing costs and
transportation systems must also be evaluated.
Achieving a jobs/housing balance requires
controlling the location, intensity, and nature of jobs
and housing in order to encourage a reduction in
vehicle trips and miles traveled and a correspond-
ing increase in the use of mass transit and alterna-
tive transportation methods such as bicycles,
carpools. and walking. Strategies include locating
higher-density housing near employment centers,
promoting infill development, actively recruiting
businesses that will utilize the local workforce, and
providing affordable housing opportunities within
the community. Jobs-housing provisions most di-
rectly affect the land use, circulation, and housing
elements.
ENVIRONMENTAL JUSTICE
OPR is required to provide guidance to cities
and counties for integrating environmental justice
into their general plans (§65040.12). Environmen-
tal justice is defined in state planning law as the
fair treatment of people of all races, cultures, and
incomes with respect to the development, adop-
tion, implementation, and enforcement of environ-
mental laws, regulations, and policies.
The following section discusses environmen-
tal justice and its relationship to the general plan.
Ideas for data and analysis and environmental jus-
tice policies are also included in the discussion of
the mandatory general plan elements (Section 2).
Federal Framework
The Constitutional basis for environmental
justice and all other challenges to governmental
discrimination lies in the Equal Protection Clause.
The Fourteenth Amendment expressly provides
that the states may not "deny to any person within
[their] jurisdiction the equal protection of the laws"
(U.S. Constitution, amend. XIV, §1).
Environmental justice policy was spearheaded
at the national level on February 11, 1994, when
President Clinton signed Executive Order (E.O.)
12898 regarding "Federal Actions to Address En-
vironmental Justice in Minority Populations and
Genera! Plan Guidelines
Low-Income Populations." The executive order
followed a 1992 report by the federal Environmen-
tal Protection Agency (U.S. EPA) indicating that
"communities of color and low-income populations
experience higher than average exposures to selected
air pollutants, hazardous waste facilities, and other
forms of environmental pollution." E.O. 12898
focused on environmental justice in relation to mi-
nority and low-income populations by reminding
us that there are current laws that can be used to
achieve environmental justice. Among the laws that
were underscored include the National Environmen-
tal Policy Act (NEPA) and Title VI of the Civil Rights
Act of 1964 (Title VI). Following E.O. 12898, on
December 10, 1997, the Council on Environmental
Quality (CEQ) released NEPA Guidance for Federal
Agencies on Key Terms in E.O. 12898.
Title VI, as amended, prohibits any recipient
(state or local entity, or public or private agency)
of federal financial assistance from discriminating
on the basis of race, color, or national origin in
their programs or activities. Title VI itself prohib-
its intentional discrimination (42 USC §2000d to
§2000d-7; EPA's Title VI implementing regula-
tions, 40 CFR part 7.25). Although Title VI is
broader in scope than E.O. 12898, the doctrine of
environmental justice is better ensured by the ex-
ecutive order because it explicitly applies to low-
income as well as minority populations.
State and local agencies that receive federal
funding must comply with Title "VI, as stated above,
and by extension, E.O. 12898. This is commonly
known as "federafization." In response, many state
and local agencies that receive federal funding have
initiated environmental justice programs of their own.
State Framework
Prior to the passage of explicit environmental
justice laws in California, multiple anti-discrimi-
nation statutes were already in the books. For ex-
ample, state planning law prohibits any local entity
from denying any individual or group of the en-
joyment of residence, iandownership, tenancy, or
any other land use in California because of the race,
sex, color, religion, ethnicity, national origin, an-
cestry, lawful occupation, or age of the individual
or group of individuals (§65008). In addition, the
Fair Employment and Housing Act (FEHA) spe-
245
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cifically prohibits housing discrimination on the ba-
sis of race, color, religion, sex, sexual orienta-
tion, marital status, national origin, ancestry,
familial status, disability, or source of income
(§12900,etseq.)
In 1999, Governor Davis signed SB 115 (Solis,
Chapter 690, Statutes of 199) into law, defining
environmental justice in statute and establishing
OPR as the coordinating agency for state environ-
mental justice programs. The bill further required
the California Environmental Protection Agency
(CalEPA) to take specified actions in designing its
mission for programs, policies, and standards
within the agency and to develop a model envi-
ronmental justice mission statement for boards, de-
partments, and offices within the agency by January
1, 2001. In September 2000, Governor Davis
signed a related bill, SB 89 (Alarcon, Chapter 728,
Statutes of 2000), which complements SB 115 by
requiring the creation of an environmental justice
working group and advisory group to assist CalEPA
in developing an interagency environmental jus-
tice strategy. Further, SB 828 (Alarcon, Chapter
765, Statutes of 2001)) added due dates for the de-
velopment of CalEPA's interagency environmen-
tal justice strategy and required CalEPA to address
program obstacles impeding environmental justice
by December 31,2003.
AB 1553 (Keeley, Chapter 762, Statutes of
2001) requires OPR to incorporate environmental
justice considerations in the General Plan Guide-
lines. AB 1553 specified that the guidelines should
address the following:
4 Distributing new public facilities in an equi-
table manner.
* Locating hazardous industrial facilities and
uses in a manner that seeks to avoid over-con-
centrating these uses in proximity to schools
or residential dwellings.
4 Avoiding locating new schools and residen-
tial dwellings in proximity to hazardous in-
dustrial facilities.
* Promoting more livable communities by ex-
panding opportunities for transit-oriented
development so that residents minimize traffic
and pollution impacts from traveling for pur-
poses of work, shopping, school, and recreation.
Forms of Inequity
Problems of environmental justice can be bro-
ken down into two categories: procedural inequity
and geographic inequity. In other words, unfair
treatment can manifest itself in terms of process
or in terms of results.
Procedural inequity occurs when the planning
process is not applied uniformly. Examples of pro-
cedural inequity include:
* "Stacking" commissions or committees with
certain interests while ignoring other segments
of the community.
* Holding meetings at times or locations that
minimize public participation.
* Using English-only written or verbal commu-
nication when a non-English speaking popu-
lation will be affected by a planning decision.
* Requiring lower levels of mitigation for
projects affecting low-income or minority
populations.
* Uneven enforcement of environmental rules.
Geographic inequity describes a situation in
which undesirable land uses are concentrated in
certain neighborhoods while the benefits are re-
ceived elsewhere. It also describes a situation in
which public amenities are concentrated only in
certain areas. Examples of geographic inequity in-
clude:
* Certain neighborhoods have a disproportion-
ate share of industrial facilities that handle or
produce hazardous waste, while the economic
benefits are distributed to other neighborhoods
(in the form of jobs and tax revenue).
* Certain neighborhoods have a disproportion-
ate share of waste disposal facilities, while
the benefits of such facilities are received by
the community or region as a whole.
* Community centers, parks, and open space are
concentrated in certain neighborhoods.
Demographics
In order to identify inequitable distribution of
either undesirable or beneficial land uses, cities
and counties should identify areas with low-income
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and minority populations. Planners must ask two
questions in order to identify low-income and mi-
nority populations. First, what is the appropriate
geographic unit of analysis? Second, what is the
definition of low-income and minority?
The appropriate geographic unit will vary with
the size and population density of the city or county.
Typical geographic units are council/supervisorial
districts, neighborhoods, census tracts, and census
blocks. For cities and counties with higher popu-
lation density, census tracts will typically be the
most useful unit of analysis. For small cities and
counties with low population densities, census
block may be the appropriate unit. Accurate data
is usually not available below the census block
level.
A geographic unit is considered low-income
or minority if the low-income or minority popula-
tion exceeds 50 percent or is meaningfully greater
than the city or county as a whole. Census Data
Series P-60 on Income and Poverty provides in-
formation on income levels. Minority groups may
include the following Census categories: Ameri-
can Indian or Alaskan Native; Asian or Pacific Is-
lander; Black, not of Hispanic origin; or Hispanic.
Once low-income and minority populations
have been identified, planners can compare the
demographic data to the distribution of public fa-
cilities and potentially hazardous industrial facili-
ties. The planning agency should work with the
fire department, county environmental health de-
partment, regional water quality control board, and
local air district to identity industrial facilities or
uses that may pose a hazard to human health. This
analysis can be used to identify inequitable distri-
bution of beneficial public facilities and
overconcentration of industrial facilities in low-
income and minority neighborhoods. Geographic
information systems (GIS), where available, are a
powerful tool for doing this kind of analysis.
Community Participation
Community involvement in the planning
process is an important part of environmental
justice. Cities and counties should develop com-
munity participation strategies that allow for
early and meaningful community involvement
by all affected population groups. Consider strat-
egies to overcome linguistic, institutional, cultural,
economic, and historical barriers to effective par-
ticipation in the general plan process. Chapter 8 is
dedicated to the issue of community participation
and suggests methods to improve outreach to and
communication with all population groups, includ-
ing low-income and minority populations.
Public Facilities
Cities and counties should plan for the equitable
distribution throughout the community of new pub-
lic facilities and services that increase and enhance
community quality of life, given the fiscal and legal
constraints that restrict the siting of these facilities.
Public facilities that enhance quality of life
may include parks, open space, recreational facili-
ties (including senior and youth centers), commu-
nity centers, libraries, museums, cultural centers,
science centers, and zoos. Equitable distribution
can be measured as the distance (or travel time)
from each residential area to the facility. A geo-
graphic analysis of public facilities may reveal
underserved areas in the city or county.
Some public facilities, such as parks and open
space/greenbelts will be fairly numerous and should
be geographically dispersed throughout the commu-
nity. The facilities will usually serve one neighbor-
hood or subdivision. Other facilities may serve several
neighborhoods, such as a recreational center or branch
library. The facilities should be located in neigh-
borhood or "village" centers. Other public facili-
ties are unique and serve the entire community,
such as a central library or city museum. Unique
facilities that are located in the civic center or urban
core are presumed to be equitably distributed.
Fiscal constraints include the relative cost of
land and the ability of public agencies to obtain
financing for acquisition and construction. Legal
constraints include, but are not limited to, local,
state, and federal regulations for the protection of
the environment, public health and safety, or the
preservation of natural and cultural resources (in-
cluding historical and archeological resources).
Industrial Facilities
Cities and counties should develop policies
that provide for the location of industrial facilities
and other uses that, even with the best available
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technology, will contain or produce material that,
because of its quantity, concentration, or physical
or chemical characteristics, pose a significant haz-
ard to human health and safety in a manner that
seeks to avoid over-concentrating these uses in
proximity to schools or residential dwellings.
Over-concentration occurs when industrial
facilities or uses do not individually exceed accept-
able regulatory standards for public health and
safety, but when considered cumulatively with
other industrial facilities and uses, pose a signifi-
cant health and safety hazard to adjacent residen-
tial and school uses.
Facilities that emit, handle, store, or dispose
of hazardous materials are regulated by a variety
of agencies. These agencies include county envi-
ronmental health departments, fire departments, air
districts, regional water quality control boards, the
California Department of Health Services, the Cali-
fornia Integrated Waste Management Board, and
the California Department of Toxic Substance
Control (DTSC). However, cities and counties, as
the primary land use authority, are primarily re-
sponsible for the location and distribution of po-
tentially hazardous industrial facilities through the
general plan and zoning ordinances.
One approach to avoiding over-concentration
of potentially hazardous industrial facilities and
uses in proximity to residential and school uses is
the use of buffer zones. Buffer zone policies may
be at approached in one of two ways. The general
plan land use diagram may designate transitional
land uses between industrial and residential areas.
Transitional uses may include open space, light
industry, office uses, business parks, or service
commercial uses. Buffer policies may also be
aimed at individual siting decisions. For example,
certain industrial uses may not be allowed within
a quarter mile of a residential or school use.
One weakness of buffer policies is that it is
difficult to make a priori decisions about how much
distance is needed to eliminate potential health and
safety hazards to residential and school. A possible
solution to this problem is to make certain indus-
trial uses conditional within a certain distance of
residential or school uses. This allows the city or
county to consider the potential hazards associated
with individual facilities or uses. Approval of a
conditional use is discretionary and thus would be
subject to CEQA. It should be noted that CEQA
requires that a lead agency consult with the affected
school district if any facility that would create haz-
ardous air emissions or handle acutely hazardous
material is proposed within a quarter mile of a
school (Public Resources Code §21151.4).
Another policy response to over-concentration
is to cap the number of potentially hazardous fa-
cilities within a certain distance of each other. For
example, the state of Georgia does not allow sit-
ing of a new solid waste facility if two such facili-
ties already exist within a two mile radius of the
proposed facility.
New Residential Uses and Schools
Cities and counties should provide for the lo-
cation of new schools and residential dwellings in
a manner that seeks to avoid locating these uses in
proximity to industrial facilities and uses that will
contain or produce materials that, because of their
quantity, concentration, or physical or chemical
characteristics, pose a significant hazard to human
health and safety.
The location of new residential and school
development is the flipside of the problem dis-
cussed in the section above. Given the need for
new housing and schools and given the need to
make efficient use of land, how do cities and coun-
ties deal with existing over-concentration of indus-
trial uses? When designating areas for residential
development, the city or county should identify any
over-concentrated industrial areas. Appropriate
buffers should be placed between over-concen-
trated industrial areas and new residential areas.
Using their authority over the approval and design
of subdivisions, cities and counties may develop
policies and standards related to industrial over-
concentration and new subdivision approvals.
The location of new schools is of particular
concern to both local governments and school dis-
tricts. The general plan should identify possible
locations for new schools. Such locations are ap-
proximate and do not indicate specific parcels.
Identifying appropriate school locations as part of
the general plan process may avoid project-level
problems of proximity to industrial facilities and
uses. The planning agency should work closely
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248
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with the school district to identify suitable school
locations. Prior to adopting or amending a general
plan, the planning agency must refer the proposed
action to any school district within the area cov-
ered by the proposed action (§65352),
For their part, school districts are required to
notify the planning commission of the city or
county prior to acquiring property for new schools
or expansion of an existing school. School districts
are not bound by local zoning ordinances unless
the ordinance provides for the location of schools
and the city or county has adopted a general plan
(§53091). School districts can override the general
plan and zoning ordinances with regards to the use
of property for classroom facilities by a two-thirds
vote of the school board (§53094). The board can-
not exercise this power for non-classroom facilities
such as administrative buildings, bus storage and
maintenance yards, and warehouses. If the school
board exercises their override power, they must
notify the city or county within 10 days (§53904).
In addition to general plan and zoning con-
cerns, CEQA requires that the environmental docu-
ment prepared for a new school identify whether
the proposed site is any of the following: a current
or former hazardous waste or solid waste disposal
facility, a hazardous substances release site identi-
fied by DTSC, the site of one or more pipelines
that carry hazardous substances, or is within a quar-
ter mile of a facility that emits hazardous air emis-
sions or handles acutely hazardous material (Public
Resources Code §21151.8). If such facilities exist,
the school board must make findings that the fa-
cilities do not endanger the public health (for those
attending or employed by the proposed school) or
that existing corrective measures will result in the
mitigation of any health endangerment.
TRANSIT-ORIENTED DEVELOPMENT
Cities and counties should promote more liv-
able communities by expanding opportunities for
transit-oriented development (TOD) so that resi-
dents minimize traffic and pollution impacts from
traveling for purposes of work, shopping, schools,
and recreation.
Transit-oriented development (TOD) is a strat-
egy that may help a community achieve its gen-
eral plan goals related to circulation, housing,
environmental quality, and economic development.
By improving access to jobs and housing and revi-
talizing existing neighborhoods, TOD can be a tool
for environmental justice.
TOD is defined as moderate- to higher-den-
sity development, located within easy walk of a
major transit stop, generally with a mix of resi-
dential, employment, and shopping opportunities
designed for pedestrians without excluding the
auto. TOD can be new construction or redevelop-
ment of one or more buildings whose design and
orientation facilitate transit use. (Statewide Tran-
sit-Oriented Development Study: Factors for Suc-
cess in California, California Department of
Transportation, 2002).
A well-designed, vibrant TOD community can
provide many benefits for local residents and busi-
nesses and the surrounding region. Compact de-
velopment near transit stops can increase transit
ridership and decrease rates of vehicle miles trav-
eled (VMT), thereby yielding a good return on tran-
sit system'investments. TOD can also provide
mobility choices, increase public safety, increase
disposable household income, reduce air pollution
and energy consumption rates, help conserve re-
sources and open space, play a role in economic
development, contribute to more affordable hous-
ing, and decrease infrastructure costs.
A variety of factors need to be considered
during the development and implementation of
TOD. These factors include transit system design;
community partnerships; understanding of local
real estate markets; coordination among local, re-
gional, and state organizations; and providing the
right mix of planning and financial incentives and
resources. A successful TOD will reinforce the
community and the transit system. Transit opera-
tors, property owners, and residents should be
involved in the development of TOD proposals.
Data to identify and assess potential locations
for TOD should be collected during preparation of
the land use, circulation, and housing elements of
the general plan. An inventory of potential devel-
opment sites within 1/4 to 1/2 mile of transit routes
may reveal potential locations for TOD. Additional
data may be used to verify the optimum location
and mix of uses to further refine the viability of
TOD at specific transit hubs. This data may in-
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249
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CASE STUDY: Integrating Transit-Oriented Development in the General Plan
The following policies from the 1998 City of Oakland General Plan illustrate how local jurisdictions can
facilitate and guide transit-oriented development:
Goal: Integrate land use and transportation planning: Integrate transportation and land use planning at the
neighborhood, city and regional levels by developing transit-oriented development where appropriate at tran-
sit and commercial nodes.
Objective: Provide mixed use,transit-oriented development that encourages public transit use and increases
pedestrian and bicycle trips at major transportation nodes.
Policy I: Encourage Transit-Oriented Development. Transit-oriented development should be encouraged at
existing or proposed transit nodes, defined by the convergence of two or more modes of public transporta-
tion such as BART, bus, shuttle service, light rail or electric trolley, ferry and inter-city or commuter rail.
Policy 2: Guiding Transit Oriented Development.Transit-oriented developments should be pedestrian ori-
ented, encourage night and day time use, provide the neighborhood with needed goods and services, contain
a mix of land uses, and be designed to be compatible with the character of surrounding neighborhoods.
Policy 3: Promoting Neighborhood Services. Promote neighborhood-serving commercial development within
one-quarter to one-half mile of established transit routes and nodes.
Policy 4: Unking Transportation and Economic Development. Encourage transportation improvements that
facilitate economic development. ' .
Policy 5: Linking Transportation and Activities. Link transportation facilities and infrastructure improvements
to recreational uses, job centers, commercial nodes, and social services (i.e., hospitals, parks, or community
centers).
elude origin and destination studies, transit rider-
ship projections, and data to determine the appro-
priate jobs to housing ratio and level of retail
services. The appropriate density will support a
high level of transit service. An optimal mix of
uses will provide opportunities to shop, work, live,
and recreate without the need for an automobile.
The jobs to housing ratio should encourage com-
muting via transit and reduce the need for parking
in the vicinity of the TOD.
Local governments can promote TOD through
general plan policies that encourage supportive
densities and designs and a mix of land uses. TOD-
supportive policies may provide for higher land
use densities, reduced parking requirements, de-
creased automobile levels of service, and increased
transit levels of service. TOD policies may facili-
tate a pedestrian-oriented environment with fea-
tures such as traffic calming strategies, traditional
grid street patterns with smaller blocks, and archi-
tecture that relates the building to sidewalks, pia-
zas, and parks rather than to parking.
Implementation Tools
Successful TOD implementation is dependent
upon TOD-supportive general plan policies en-
abled by specific zoning codes, development regu-
lations, and design guidelines. To create an
effective regulatory and review environment, lo-
cal jurisdictions can modify existing zoning
codes to encourage TOD; tailor development
regulations to individual TOD sites where ap-
propriate; develop TOD-friendly design stan-
dards; and simplify and streamline the permit and
review process.
The following planning tools are typical ways
a community can implement TOD-supportive gen-
eral plan policies.
Specific Plan
Specific plans are a useful zoning tool for
implementing the TOD-re!ated policies and objec-
tives of the genera! plan. A specific plan can pro-
vide detailed information on land use, development
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CASE STUDY: Integrating Transit-Oriented Development in the General Plan
The following policies from the agriculture and land use element of the Fresno County General Plan illustrate
how local jurisdictions can facilitate and guide transit-oriented development
Policy LU-F.I The County shall encourage mixed-use development that locates residences near compatible
jobs and services.
Policy LU-F.2 The County shall encourage the combination of residential, commercial, and office uses in mixed
use configurations on the same site.
Policy LU-R3 The County shall promote development of higher-density housing in areas located along major
transportation corridors and transit routes and served by the full range of urban services, including neighbor-
hood commercial uses, community centers, and public services.
Policy LU-F.4 The County shall selectively redesignate vacant land for higher density uses or mixed uses to
facilitate infill development.
Policy LU-F.5 The County shall encourage subdivision designs that site neighborhood parks near activity
centers such as schools, libraries, and community centers.
Policy LU-F.6 The County shall encourage the creation of activity centers including schools, libraries, and
community centers in existing neighborhoods.
Policy LU-FJThe County shall seek to reduce the amount of land devoted to parking in new urban non-
residential development and encourage the use of shared parking facilities.
Policy LU-F.8 The County shall adopt transit- and pedestrian-oriented design guidelines and incorporate them
into community plans and specific plans. The County shall review development proposals for compliance with
its adopted transit-and pedestrian-oriented design guidelines to identify design changes that can improve transit,
bicycle, and pedestrian access.
Policy LU-F.9 The County shall plan adequate pedestrian-oriented neighborhood commercial shopping areas
to serve residential development.
Policy LU-F. 10 The County shall encourage school districts to site new schools in locations that allow students
to safely walk or bicycle from their homes, and to incorporate school sites into larger neighborhood activity
centers that serve multiple purposes.
standards, and infrastructure requirements in the sity, pedestrian-oriented development around
TOD area. For a further discussion of specific transit stations.
plans, see Chapter 10 of this document as well as A transit village plan must be consistent with
the OPR publication The Planners Guide to Spe- the city or county general plan (§65460.8). The plan
cific Plans, *s adopted by resolution, like the general plan, and
becomes the policy foundation for village zoning
Transit Village Plan provisions, public works projects, and future sub-
The Transit Village Development Planning division activity.
Act of 1994 (§65460, et seq.) authorizes cities To encourage pedestrian use, the entire vi-
and counties to prepare "transit village plans" kge must be contained within a one-quarter mile
to encourage mixed-use development in close radius of a transit station. The Act provides that a
vicinity to transit stations. Transit village plans city or county adopting a plan will be eligible for
occupy a niche similar to the community plans state transportation funds but does not indicate that
described in Chapter 1. What distinguishes them areas with such plans will receive priority fund-
is their specific role in encouraging high-den- ing. Transit villages may be excluded from con-
General Plan Guidelines
251
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formance with county Congestion Management
Plan level of service standards with the approval
of the Congestion Management Agency.
Zoning
Iran sit-oriented development will typically
involve changes in zoning, either as a separate ac-
tion or in conjunction with a specific plan or tran-
sit village plan. The purpose of the rezoning is to
specify uses and allow the necessary density and
building intensity for a successful development.
Zoning changes may take the form of a new zon-
ing district or an overlay zone. Considerations for
TOD zoning include mixed-use, minimum residen-
tial densities, appropriate automobile parking stan-
dards, and optimal building setbacks to create
pedestrian scale.
For more information on transit-oriented de-
velopment, see the Bibliography under "Transpor-
tation and Circulation."
General Plan Guidelines
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APPENDIX F
CALIFORNIA PLANNING AND ZONING LAWS
A. State Planning Law
The responsibility for land use planning and control rests primarily with the cities and counties in
California.1 While the State Office of Planning and Research is responsible for "developing state
land use policies, coordinating planning of all state agencies, and assisting and monitoring local
and regional planning,"2 the Office is not vested with "any direct operating or regulatory powers
over land use, public works, or other state, regional or local projects or programs."
B. Local Planning Requirements
Each city and county planning agency in California is required to prepare, and its legislative
body is required to adopt, a comprehensive, long-term general plan for the physical development
of the city or county, and for any land outside its boundaries which bears relation to its
planning. 4 The general plan may be adopted in a variety of formats—as a single document or as
a group of documents—but it must address the following elements to the extent that the subject
of the element exists in the planning area:5
(a) A land use element which designates the proposed general distribution and general
location and extent of the uses of the land for housing, business, industry, open space,
including agriculture, natural resources, recreation, and enjoyment of scenic beauty,
education, public buildings and grounds, solid and liquid waste disposal facilities, and
other categories of public and private uses of land;
(b) A circulation element consisting of the general location and extent of existing and
proposed major thoroughfares, transportation routes, terminals, and other local public
utilities and facilities, all correlated with the land use element of the plan;
(c) A housing element;
(d) A conservation element for the conservation, development, and utilization of natural
resources including water and its hydraulic force, forests, soils, rivers and other waters,
harbors, fisheries, wildlife, minerals, and other natural resources;
(e) An open-space element;
(f) A noise element, which must identity and appraise noise problems in the community.
"The noise element...shall recognize...to the extent practicable...current and projected
noise levels for all of the following sources: (1) Highways and freeways, (2) Primary
arterials and major local streets, (3) Passenger and freight on-line railroad operations and
ground rapid transit systems, (4) Commercial, general aviation, heliport, helistop, and
military operations..., (5) Local industrial plants..., (6) Other ground stationary noise
sources...."
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(g) A safety element for the protection of the community from any unreasonable risks
associated with the effects of seismically induced surface rupture, ground shaking,
ground failure, tsunami, seiche, and dam failure; slope instability leading to mudslides
and landslides; subsidence, liquefaction and other seismic hazards.6
In addition to these seven required elements, cities and counties may include any other elements
and address any other subjects that relate to their physical development.7 With respect to the
housing element, a specific article was added to the Planning and Zoning title of the Local
Government Code setting forth the required contents of the element.8
C. Incentives for Local Planning
Incentives to encourage local planning are unnecessary because local planning is mandatory.
D. State Role in Local Planning
1. State Plan and/or Policy
The Office of Planning and Research is charged with the responsibility of developing state land
use policies, coordinating planning of all state agencies, and assisting and monitoring local and
regional planning.9 In furtherance of this mandate, the Office is directed by statute to, among
other things, "engage in the formulation, evaluation and updating of long-range goals and
policies for land use, population growth and distribution, urban expansion, development, open
space, resource preservation and utilization, air and water quality, and other factors which shape
statewide development patterns and significantly influence the quality of the state's
environment."10 In addition to this state-level task, the Office: coordinates the technical
assistance provided by state departments and agencies in regional and local planning to assure
consistency with the statewide environmental goals and objectives; develops long-range policies
to assist state and local agencies in meeting the challenges of growth and development and
"defining the complementary roles of the state, cities, counties, school districts, and special
districts with respect to such growth"; and encourages planning assistance to city, county, district
and regional planning agencies; assists local governments in land use planning.11 The Office is
also charged with organizing California into regional planning districts.
2. Approval of Local Comprehensive Plans, Zoning Ordinances
While the development and adoption of local comprehensive (general) plans is purely local in
nature, the planning agency is directed—not required—to refer the proposed plan for comment
by all abutting cities and counties in the area covered by the proposed plan, any special district
that may be significantly affected by the adoption of the proposed plan, all school districts within
the area covered by the plan, the local agency formation commission, any area wide planning
agency that may be significantly affected by the plan, federal agencies that have operations or
lands within the jurisdiction covered by the plan, public water districts, and the appropriate Air
Quality Management District.13 These entities have 45 days to comment.14
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3. Consistency Requirements
Zoning ordinances must be consistent with the adopted general plan.15 In addition, no local
public works project and no tentative map or parcel may be approved if it is not consistent with
the plan.16 Local governments in California may adopt "specific plans or other plans" in addition
to the general plan, but these other plans must be consistent with the general plan.17 Although
regional plans may be developed and adopted by the regional planning districts, such plans are
"advisory only and shall not have any binding effect on the counties and cities located within the
boundaries of the regional planning district for which the regional plan is adopted."18 In an
effort to facilitate "effective and harmonious" planning, all city, county, and other local planning
agencies are required to submit to the regional planning board their general plans and/or master
plans, zoning ordinances and subdivision regulations, and a similar filing requirement, for
informational purposes, exists for the state agencies with respect to the regional planning
boards.19 Cities and counties may submit local planning and zoning proposals to the regional
planning board for advice, and such advice "shall consist of a report as to the conformance of
such proposals to the regional plan, the possible effect of such proposals on other portions of the
region, and any other matters which in the judgment of the board may be of assistance to the
body requesting such advice."20
4. Public Participation Requirements for Localities
The California Legislature has specifically recognized the importance of public participation in
land use planning, declaring it the policy of the State that, "each state, regional and local agency
concerned in the planning process involve the public through public hearings, informative
meetings, publicity and other means available to them, and that at such hearings and other
forums, the public be afforded the opportunity to respond to clearly defined alternative
objectives, policies and actions."21 Specifically in the area of local plan development, the
enabling statute requires that that the planning agency provide opportunities for the involvement
of citizens, public agencies, public utility companies, and civic, education, and other community
groups are involved as much as possible.22
5. Reporting Requirements for Localities
City and county planning agencies are required to report annually to the City Council, the Office
of Planning and Research, and the Department of Housing and Community Development.23 The
Regional Planning Board is also required to report annually to the legislative bodies and to the
planning agencies of all of the counties, cities, and other governmental agencies within the
region for the purpose of reporting on the status of the regional plan and notifying recipients of
amendments and revisions within the past year as well as providing a report of other major
activities.24
6. Monitoring Requirements for Localities
Other than the responsibility of the Office of Planning and Research to check on the amount of
time that has passed since the last update to a local general plan, there are no comprehensive
monitoring requirements for local general plans.
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7. Updates of Plans
Local planning agencies are required to "periodically review, and revise, as necessary" local
general plans.25 There is no specified statutory timeframe for such periodic review, although the
Planning Office is required to notify cities and counties that their plans have not been revised
within eight years, and the Attorney General is to be notified when plans are not revised within
ten years.2 The only other time frame for plan revisions relates to the housing element and
requires updates to that element at least every five years.27
E. Development Fees
Local governments are authorized to assess and collect impact fees from applicants for the
purpose of defraying all or a portion of the cost of public facilities associated with a new
development.28
F. Coordination with Environmental Justice
The Office of Planning and Research is California's coordinating agency for environmental
justice programs.29 No later than July 1, 2003, the Office is required to incorporate
environmental justice guidelines into the next edition of the general plan guidelines for cities and
counties. The guidelines are to recommend provisions for general plans to do all of the
following:
(1) Propose methods for planning for the equitable distribution of new public facilities
and services that increase and enhance community quality of life throughout the
community, given the fiscal and legal constraints that restrict the siting of these
facilities.
(2) Propose methods for providing for the location, if any, of industrial facilities and uses
that, even with the best available technology, will contain or produce material that,
because of its quantity, concentration, or physical or chemical characteristics, poses a
significant hazard to human health and safety, in a manner that seeks to avoid over-
concentrating these uses in proximity to schools or residential dwellings.
(3) Propose methods for providing the location of new schools and residential dwellings
in a manner that seeks to avoid locating these uses in proximity to industrial facilities
and uses that will contain or produce material that because of its quantity,
concentration, or physical or chemical characteristics, poses a significant hazard to
human health and safety.
(4) Propose methods for promoting more livable communities by expanding
opportunities for transit-oriented development so that residents minimize traffic and
pollution impacts from traveling for purposes of work, shopping, schools, and
recreation.31
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ENDNOTES
See generally, West's Ann. Cal. Gov. Code sec. 65100 et. seq. (establishment of planning agencies, commissions,
departments); West's Ann. Cal. Gov. Code sec. 65800 et. seq., (general plan and specific plan requirements); West's
Ann. Cal. Gov. Code. Sec. 65800, et. seq. (zoning regulation); and West's Ann. Cal. Gov. Code sec. 66410, et. seq.
(subdivision regulation).
2 West's Ann. Cal. Gov. Code sec. 65035 (1997).
3 Ibid.
4 West's Ann. Cal. Gov. Code sec. 65300 (1997).
5 West's Ann. Cal. Gov. Code sec. 65301 (1997).
6 West's Ann. Cal. Gov. Code sec. 65302 (1997).
7 West's Ann. Cal. Gov. Code sec. 65303 (1997).
8 West's Ann. Cal. Gov. Code Art. 10.6 (1997).
9 West's Ann. Cal. Gov. Code sec. 65035 (1997).
10 West's Ann. Cal. Gov. Code sec. 65040(a) (1997).
11 West's Ann. Cal. Gov. Code sec. 65040(i) and (k)-(m) (1997).
12 West's Ann. Cal. Gov. Code sec. 65040.4 (1997).
13 West's Ann. Cal. Gov. Code sec. 65352 (1997).
14 Ibid.
15 West's Ann. Cal. Gov. Code sec. 65455 and sec. 65860 (1997).
16 West's Ann. Cal. Gov. Code sec. 65455 (1997).
17 West's Ann. Cal. Gov. Code sec. 65359 (1997).
18 West's Ann. Cal. Gov. Code sec. 65060.8 (1997).
19 West's Ann. Cal. Gov. Code sec. 65067 (1997).
20 West's Ann. Cal. Gov. Code sec. 65067.2 (1997).
21 West's Ann. Cal. Gov. Code sec. 65033 (1997).
22 West's Ann. Cal. Gov. Code sec. 56351 (1997).
23 West's Ann. Cal. Gov. Code sec. 65307 and sec. 65400 (1997).
24 West's Ann. Cal. Gov. Code sec. 65067.3 (1997).
25 West's Ann. Cal. Gov. Code sec. 65103 (1997).
26 West's Ann. Cal. Gov. Code sec. 65040.6 (1997).
27 West's Ann. Cal. Gov. Code sec. 65588 (1997).
28 See, West's Ann. Cal. Gov. Code sec. 66000 et seq. (1997).
29 West's Ann. Cal. Gov. Code sec. 65040.12 (Cum. Supp. 2002). The Office is also charged with reviewing and
evaluating information from federal agencies obtained as a result of their respective regulatory activities under
federal Executive Order 12898, and from the State Working Group on Environmental Justice that was established
pursuant to Public Resources Code sec. 72002. Ibid.
30 Ibid.
31 Ibid.
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258
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APPENDIX G
TEXAS PLANNING AND ZONING LAWS
A. State Planning Law
The Local Government Code (LGC) of Texas contains the state's authorities for local planning
and development1 and regulation of uses.2 There is no state-level planning in Texas, and any
regional planning is merely advisory. Therefore, land use controls are left entirely to local
governments.
B. Local Planning Requirements
Texas did not adopt comprehensive planning regulations until 1997; but the state has had
subdivision laws3 since the late 1920s. Local governments in Texas may adopt and define the
content and design of comprehensive plans for long-range development.5 It is important to note,
however, that while municipalities may adopt comprehensive plans for the long-range
development of the municipality,6 there is no requirement to adopt these plans. Municipalities
may also define the relationship between comprehensive plans and development regulations and
may adopt standards for consistency.7 Although local zoning regulations must be adopted in
accordance with a comprehensive plan, this requirement is weakened by Texas caselaw holding
that zoning ordinances may constitute the comprehensive plan.8 State statutes provide little
guidance for municipalities when developing comprehensive plans; they simply authorize plans
to include, but do not limit them to, provisions on land use, transportation, and public facilities.9
A local comprehensive plan may consist of a single plan or a coordinated set of plans organized
by subject and geographic area to coordinate and guide the establishment of development
regulations.10
County governments in Texas have no statutory authority to develop and adopt comprehensive
plans or zoning ordinances. The only exceptions are Padre Island11 and the Amistad Recreation
Area. Some authority is granted for several Texas counties to establish zoning ordinances and
regulations in protected areas,13 but counties may establish building and setback lines only in
areas beyond the corporate limits of municipalities.14
C. State Rules & Guidelines
Texas has no state rules and guidelines for local planning beyond the statutory provisions
described above. The Local Government Code authorizes planning and zoning for housing and
other structures, including authority to secure substandard buildings, preserve historic buildings,
conserve energy, control rent, and adopt fair housing ordinances.15 Other miscellaneous
community development tools authorized by the state include Neighborhood Empowerment
Zones, which can be created by municipal governing bodies to build or rehabilitate affordable
housing, increase economic development, improve the quality of social services, education, or
provide public safety to residents; and the North American Free Trade Agreement Impact
Zones to promote opportunities for developing local businesses and jobs for residents of the
zone, as well as requiring certain businesses to hire NAFTA displaced workers.17
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D, Incentives for Local Planning
Texas has no state incentives to encourage local comprehensive land use planning. There is,
however, a vast array of special district legislation for a variety of purposes, including water
supplies, electric utilities, tax increment financing, county development and economic
development. A popular tool for municipalities is Chapter 380 of the Local Government Code,
which authorizes municipalities to create programs for a variety of economic development
purposes. There are many projects related to land development that impact local economies and
assist municipalities with obtaining appropriate infrastructure and addressing other planning and
zoning related matters.
The Office of Rural Community Affairs offers various grant programs, such as the Colonia
Planning Fund,18 to promote the development of viable communities thorough affordable
housing and increased economic opportunities for persons of low to moderate income. The
Texas Historical Commission also provides technical assistance and preservation grant priority
for localities participating in Commission programs, including funding for preservation through
local community visioning processes.19
E. State Role in Local Planning
The state and counties have no role in local planning, nor do they provide regional oversight of
local planning. Instead, the councils of government throughout Texas are purely advisory. The
regional councils of government may provide training on local land use issues, may oversee and
coordinate federal grants, or coordinate air quality issues, but their function for local land use
planning is advisory at best. Moreover, state government has no role in approving local
comprehensive plans or zoning ordinances.
F. Regional Role in Local Planning
Any combination of Texas counties or municipalities may agree to establish by ordinance a
regional planning commission20 for the future development of communities within the region.
These commissions plan transportation system improvements, adequate public facilities (e.g.,
streets, utilities, health, educational, recreational facilities), agricultural needs, business and
industry needs, preservation of historical and cultural values, and improving quality of life.
The regional planning commissions have no authority to require consistency among or between
local plans; rather the commissions may develop regional planning recommendations, which
participating local governing bodies may then adopt in whole or in part.
In a state planning region or sub-region where a regional planning commission exists, the
commission functions as an areawide planning agency for purposes of the reviews required for
certain federal and state funding programs.23 If a project has regionwide significance, a
commission has responsibility for reviewing the proposed project and determining whether the
project conflicts with the regional plan or policy.
Adjacent municipalities are also authorized to form joint planning commissions. Once formed
a joint planning commission is required to complete a Master Plan to ensure orderly planning.
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That plan must include: highway design; street and park layout; and designation of areas for the
location of schools, residences, businesses and commerce, industry, and water reservoirs.27 It
should be noted that, while joint planning commissions are authorized by Texas statute, none
currently exist.
G. Public Participation Requirements for Localities
There are no special public participation requirements for developing and adopting a
comprehensive plan or zoning ordinance except for the usual public notice and public hearing
requirements. With respect to subdivision law, in economically distressed counties, the Texas
enabling statute requires that notice be published in English and in Spanish.29
H. Reporting Requirements for Localities
Texas does not have any general reporting requirements for municipalities or counties.
/. Monitoring Requirements For Localities
There are no monitoring requirements for municipalities and counties except when local
government assesses impact fees, and in that case, they must annually submit a written
certification verifying compliance to the Attorney General. With respect to local zoning and
land use laws, the governing body of a municipality may adopt ordinances to enforce its zoning
regulations.31
/. Benchmarks for Localities
Because there is no state or regional role in planning and zoning, there are no performance
measures or benchmarks.
K. Updates of Plans
Planning and zoning commissions may update their comprehensive plans and zoning regulations
whenever necessary as long as proper public notice procedures are followed.
L. State Leadership on Environmental Justice
The Texas Commission on Environmental Quality administers the state's environmental equity
program, but there is no Texas statute or regulation on environmental justice.32 Through this
initiative, the state strives, among other things, to assist citizens and neighborhood groups for
participating in regulatory processes.33 In addition, the program function as a community liaison
and provides environmental awareness and outreach campaigns to educate communities about
the siting of various potential hazards.34
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M. Impact & Development Fees
In Texas, the municipalities, counties, and other local governments may impose impact fees to
finance new capital improvements or public facility expansions.35 To enact impact fees, the local
governing body must comply with appropriate public notice and hearing requirements, complete
a capital improvement plan, and submit land use assumptions.36 Within the North American
Free Trade Impact Zone and Neighborhood Empowerment Zones, municipalities may waive or
adopt fees related to the construction of buildings within the zones, including impact fees.
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ENDNOTES
1 V.T.C.A., Local Government Code, Title 12 (West Group 1999).
2 V.T.C.A. Local Government Code, Title 7 (West Group 1999).
3 V.T.C.A. Local Government Code, Ch. 213 (West Group, Cum. Supp. 2002).
4 American Planning Association, Planning for Smart Growth: 2002 State ofStates^ 121 (2002).
5 V.T.C.A., Local Government Code, sec. 213.002 (West Group Cum. Supp. 2002).
6 V.T.C.A., Local Government Code, sec. 219.002 (West Group 1999).
7 The "Home Rule Provision" allows cities with a population of 5,000 or more to enact and amend ordinances as
long as they do not conflict with the state constitution or other state laws (Texas Constitution - Article 11, § 5). See
Planning for Smart Growth, supra note 4, 120.
8 See, Bernard v. City of Bedford, 593 S.W.2d 809, 812 Tex. Civ. App. (Fort Worth 1980).
9 V.T.C.A., Local Government Code, sec. 219.002 (West Group 1999).
10 Ibid.
11 V.T.C.A., Local Government Code, sec. 231.012 (West Group 1999).
12 V.T.C.A., Local Government Code, sec. 231.031 (West Group 1999).
13 V.T.C.A., Local Government Code, sec. 231.101 (zoning around Lake Tawakoni and Lake Ray Roberts); sec.
231.131 (zoning around Lake Alan Henry, Lake Cooper and Post Lake), sec. 231.171 (zoning and other regulation
on El Paso Mission Trail Historical Area); sec. 231.201 (zoning around Lake Somerville); and sec. 231.221
(development regulations in Hood County) (West Group 1999 and Cum. Supp. 2002).
14 V.T.C.A., Local Government Code, sec. 233.001(West Group 1999).
15 See, V.T.C.A, Local Government Code, Chaps. 214, 302 and 318 (West Group 1999).
16 V.T.C.A., Local Government Code, Ch. 378. (West Group, Cum. Supp. 2002).
17 V.T.C.A., Local Government Code., Ch. 379 (West Group, Cum. Supp. 2002).
18 See, (site visited 10/02).
19 See, (site visited 10/02).
20 V.T.C.A., Local Government Code, sec. 391.003 (West Group 1999).
21 V.T.C.A., Local Government Code, sec. 391.001 (West Group 1999).
22 V.T.C.A., Local Government Code, sec. 391.004 (West Group 1999).
23 V.T.C.A., Local Government Code, sec. 391.008 (West Group 1999).
24 Ibid.
25 V.T.C.A. Local Government Code, sec. 371.042 (West Group 1999).
26V.T.C.A. Local Government Code, sec. 371.043 (West Group 1999).
27 V.T.C.A. Local Government Code, sec. 371.043(a) (West Group 1999).
28 See, e.g., V.T.C.A., Local Government Code, sees. 211.006, 213.003 and Ch. 231 (West Group 1999).
29 V.T.C.A., Local Government Code, sec. 232.025 (West Group 1999).
30 V.T.C.A., Local Government Code, sec. 395.082 (West Group 1999).
31 V.T.C.A. Local Government Code, sec 213.012 (West Group 1999).
32 See, (site visited 10/02).
33 Ibid.
34 Ibid.
35 V.T.C.A., Local Government Code, Ch. 395 (West Group 1999).
36 V.T.C.A., Local Government Code, sec.395.014; sees. 395.042 - 395.0455 (West Group 1999).
37 V.T.C.A., Local Government Code, sec. 378.004(1) and sec. 379.004(1) (West Group Cum. Supp.. 2002).
263
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264
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APPENDIX H
PENNSYLVANIA PLANNING AND ZONING LAWS
A. State Planning Law
In Pennsylvania, the state has delegated its planning authority to local governments through the
Municipalities Planning Code (MFC).1 The MPC establishes the framework for local, county,
and regional governments to conduct land use planning. The cities of Pittsburgh and
Philadelphia are excluded from this legislation and operate under their respective home rule
charters.3
The MPC allows a municipality to enact or adopt a comprehensive plan, zoning ordinances,
subdivisions, and land development ordinances, including an official map. It also contains
procedures for establishing a planning agency, a zoning hearing board, and appeals of their
decisions. Since its initial enactment in 1968, the MPC has been amended several times,
including the addition of impact fees.4
In 2000, two planning bills—Acts 67 and 68—were enacted as part of Governor Ridge's
Growing Smarter Initiative.6 Collectively, these Acts clarify the authority of counties and
municipalities to create Locally Designed Growth Areas as part of their comprehensive land use
plans; encourage and enhance Transferable Development Rights as a tool to preserve open space
and farmland; direct that state agencies must consider and may rely on local land use plans or
ordinances when reviewing applications for funding or permitting to avoid conflicts with local
planning decisions; and provide local governments with the ability to withstand legal challenges
while facilitating consistent planning at local, county, and regional levels and planning for
growth.7
On December 22, 2000, Act 127 was signed by Governor Ridge to clarify the amendments to the
MPC by Acts 67 and 68. In June of 2000, the Downtown Location Law8 further required the
Department of General Services to set guidelines for locating state agencies in central business
districts. Also in 2000, the General Assembly amended the Industrial Sites Environmental
Assessment Act9 to provide performance-based loans to businesses and communities for
remediation and cleanup of non-hazardous wastes.
B. Local Planning Requirements
In Pennsylvania, municipalities—cities, towns, and boroughs—are given the primary
responsibility for regulating land use.10 The local governing body generally does not conduct the
planning function, and a planning commission is appointed to assume this responsibility. But the
local governing body controls the basic functions and operation of its appointed planning
commission.11 The powers and duties of the planning commission, as well as the statutory
guidelines for planning and zoning, are outlined in the MPC. Municipal authority to regulate
land use is exercised by the planning commission through zoning, subdivision, and land
development ordinances, and is limited by state legislation and the Constitution.12
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Pennsylvania counties are granted planning functions in the absence of municipal authority, and
can adopt zoning or subdivision regulations for the entire county if there are no municipal
ordinances or for as much of the land within the county that is otherwise not regulated.13 Each
county has an appointed planning commission,14 and municipalities wishing to engage in certain
planning activities are required to submit their proposed actions to the county planning
commission for review.15
Although the MPC requires counties to develop a comprehensive plan/ municipalities are not
required to develop and adopt their own plans.17 However, should a municipality develop its
own comprehensive plan, it must do so in accordance with the MPC, and its plan must be
consistent with the county's comprehensive plan.18
County and municipal comprehensive plans must be prepared and adopted in accordance with
Section 10301 of the MPC and must contain, but need not be limited to, the following elements:
• Statement of objectives for future development;
Land use plan;
• Plan to meet housing needs of present and future residents;
• Transportation;
Community facilities and utilities;
• Statement of relationships among various plan components (i.e., environmental,
energy conservation, fiscal, economic development and social consequences on
municipality);
• Short and long-range plan implementation strategies;
Statement that existing and proposed development is compatible with existing and
proposed development and plans in contiguous municipalities or a statement that
measures have been taken to provide buffers or transitional devices between
disparate uses, and a statement that existing and proposed development of the
municipality is generally consistent with the objectives and plans of the county
comprehensive plan;
Plan for the protection of natural and historic resources;
County comprehensive plans must identify:
land uses related to important natural resources and utilization of existing
minerals;
current and proposed land uses that have a regional impact and
significance;
a plan for the preservation and enhancement of prime agricultural land and
to encourage compatible land use regulation of existing agricultural
operations; and
a plan for historic preservation; and
Plan for reliable supplies of water.19
In addition, a comprehensive plan may:
Ofl
Include an energy conservation plan; and
'J1
• Identify areas for future growth and development.
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C State Rules & Guidelines
With the exception of requirements preempted by other federal or state legislation, local zoning
ordinances in Pennsylvania must take into account transferable development rights, preservation
and protection of prime agricultural land, environmentally sensitive areas, areas of historic
significance, and availability of reliable, safe and adequate water.22 In addition, zoning
ordinances must provide for reasonable development of minerals in each municipality and may
7^
not unreasonably restrict forestry.
Z>. Incentives for Local Planning
Pennsylvania's incentives to encourage planning mostly are various types of funding for
planning purposes. Priority for state grants to develop or revise comprehensive plans will be
given to those municipalities that agree to adopt comprehensive plans generally consistent with
county comprehensive plans and to enact new zoning ordinances or amendments that would fully
implement the municipal comprehensive plan.24 When a county adopts a comprehensive plan in
accordance with the MPC and where any municipalities therein have adopted plans and zoning
ordinances in accordance with provisions of the MPC, "commonwealth agencies shall consider
and may rely upon comprehensive plans and zoning ordinances when reviewing applications for
the funding or permitting of infrastructure or facilities."25 Similarly, joint municipal zoning
ordinances receive the same consideration and municipal authorization to, by agreement, share
tax revenues and fees remitted to municipalities located within the joint municipal zone.
The Department of Community and Economic Development (DCED),27 whose mission is to
foster opportunities for businesses and communities to succeed and thrive, also provides various
grants and other financial assistance to municipalities, including grant programs to support
community development, community services, housing assistance, infrastructure, municipal
services, and neighborhood improvement.28
The Governor's Center for Local Government Services,29 designated by Executive Order 1999-1
as the lead state agency responsible for land use assistance and monitoring at the local level,
offers technical assistance; financial assistance, including the Land Use Planning and Technical
Assistance Program (LUPTAP), the Shared Municipal Services Program and the Local
Government Capital Project Loan Program; and education and training for local governments to
encourage sound land management practices, economic development, and healthy and strong
communities.
E. Regional Planning
Under Pennsylvania's Planning and Development Act, municipalities are specifically authorized
to enter into intergovernmental cooperative agreements. * Cooperative planning and
implementation agreements are authorized for the purpose of developing, adopting and
implementing a comprehensive plan for the entire county or for any area within the county.
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F. State Role in Local Planning
1. State Plan and/or Policy
Pennsylvania does not have a statewide land use plan, but Executive Order 1999-1 serves as a
guide for all state agencies making decisions that impact land use.33
2. Approval of Local Comprehensive Plans, Zoning Ordinances
There is no state approval for plans or zoning ordinances. However, as discussed below, the
statutes contemplate an opportunity for review and comment among and between different
government jurisdictions.
2a. Comprehensive Plans
Municipalities: A municipal governing body is authorized to adopt and amend a comprehensive
plan as a whole or in parts.34 Prior to adopting or amending a plan, the municipal planning
agency must hold at least one public meeting pursuant to public notice before forwarding the
proposed plan or amendment to the local governing body.35 In reviewing the proposed plan, the
governing body must consider the comments of the county, contiguous municipalities, and the
school district, as well as the public meeting comments and the recommendations of the
municipal planning agency.36 Comments of the county, contiguous municipalities, and local
school districts must be sent to the governing body within 45 days after the plan is received, and
the proposed plan or amendment can not be approved until these comments are received.37 If a
contiguous municipality or school district fails to respond within 45 days, the governing body
may then proceed without their comments.38
Counties: The governing body of a county is authorized to adopt and amend the county
comprehensive plan as a whole or in parts.39 Before adopting or amending the comprehensive
plan, or any part thereof, the county planning agency must hold at least one public meeting
before forwarding the proposed plan or amendment to the county's governing body.40 In
reviewing the proposed comprehensive plan, the governing body must consider comments from
other municipalities, or school districts within the county, other contiguous school districts,
municipalities, or counties, as well as comments at the public meeting and recommendations of
the county planning agency.41 Comments of the counties, municipalities, and school districts
must be sent to the governing body within 45 days after the plan is received, and the proposed
comprehensive plan must not be approved until these comments are received.42 If, however, the
counties, municipalities, or school districts fail to respond within 45 days, the county's governing
body may then proceed without their comments.43
In accordance with MFC Section 10302(a.l), counties must consider any amendments to their
comprehensive plan proposed by municipalities that are considering adoption or revision of their
municipal comprehensive plans so as to achieve general consistency between the respective
plans. When two or more contiguous municipalities request amendments to a county
comprehensive plan for purposes of achieving general consistency between the municipal plans
or multi-municipal plan and the county plan, the county must accept the amendments unless
good cause for their refusal is established.45
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Adoption of a comprehensive plan, any part of a comprehensive plan, or an amendment to a
comprehensive plan must be by resolution carried by the affirmative votes of not less than a
majority of all members of the county's governing body.
2b. Zoning Ordinances
Municipalities: The governing body of each municipality may enact, amend, and repeal zoning
ordinances to implement comprehensive plans.
Counties: The powers of county governing bodies to enact, amend, and repeal zoning ordinances
are limited to land in municipalities, wholly or partly within the county, that have no zoning
ordinances in effect when a county zoning ordinance is introduced and until a municipal
ordinance is adopted. Once a municipality, whose land is subject to county zoning adopts an
ordinance, it repeals the county zoning ordinance.
Zoning ordinances must reflect the policy goals of the community development plan as outlined
in MFC Section 10606 and must give consideration to the character of the municipality, the
needs of the citizens, and the suitabilities and special nature of particular parts of the
community.49 A county must hold a mediation session with any municipalities that believe the
county's ordinances will have negative local impacts.
3. Consistency Requirements
Municipal comprehensive plans must be generally consistent with the adopted county
comprehensive plan.50 A municipality may amend its comprehensive plan at any time, provided
that its plan remains generally consistent with the county plan and compatible with the
comprehensive plans of abutting municipalities.51 Where a municipality with a comprehensive
plan is located in a county that has adopted a comprehensive plan, both the county and
municipality must give each other's plan consideration so that the objectives of each plan
(county and municipal) can be protected to the greatest extent possible.52 County planning
commissions must publish advisory guidelines to promote consistency with the adopted county
comprehensive plan.53 These guidelines must promote uniformity with respect to local planning
and zoning terminology and common types of municipal land use or zoning regulations.
4. Public Participation Requirements for Localities
Other than traditional public notice and hearing prior to the adoption of local plans and zoning
ordinances, Pennsylvania has no specific requirements for public participation in the
development of these documents.
5. Reporting Requirements for Localities
Municipalities must forward a copy of their comprehensive plans and any future amendments to
Pennsylvania's Center for Local Government Services for informational purposes.
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6. Monitoring Requirements For Localities
Except for a five-year report on Land Use and Growth Management and the required filings
described above, there is no state-level monitoring of local government compliance with
planning and zoning laws.
7. Benchmarks for Localities
The Center for Local Government Services must issue a Land Use and Growth Management
Report by the year 2005 and must review and update the report at five-year intervals.56
8. Updates of Local Plans
The MFC requires a municipal or multi—municipal comprehensive plan to be reviewed at least
every ten years.57 The municipal or multi—municipal plan must be sent to the governing bodies
of contiguous municipalities for their review and comment and must also be sent to the Center
for Local Government Services for informational purposes.58 In addition, the municipal or
multi-municipal comprehensive plan must be sent to the county planning commission or, upon
the request of the county planning commission, to a regional planning commission when the
comprehensive plan is updated or at ten-year intervals, whichever comes first, for review and
comment on whether the municipal plan remains generally consistent with the county
comprehensive plan and to indicate where the local plan may deviate from the county plan.59
County comprehensive plans must be updated at least every ten years.60 Counties must consult
with municipalities and solicit comment from school districts, municipal authorities, public
utilities, and the Center for Local Government Services, for informational purposes during the
process of preparing or updating a county comprehensive plan in order to determine future
growth needs.6
9. Impact & Development Fees
Pennsylvania authorizes localities to impose development impact fees, but they may only be used
for transportation purposes associated with new development.62
G. State Leadership
Executive Order 1999-1 established Pennsylvania's land use policy, which all state agencies
must follow. It requires soundly planned growth; farmland and open space preservation;
development in areas that have been previously developed or in locally designated growth areas;
increased understanding of land use planning impacts in relation to environmental, economic and
social factors; regional cooperation; preservation of private property rights; preservation of the
economic and social vitality of Pennsylvania's communities; and infrastructure maintenance and
improvements that are consistent with sound land use practices.63
Specifically with respect to environmental justice, in June 2001, Pennsylvania's Environmental
Justice Work Group recommended to the Department of Environmental Protection (DEP) that
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the DEP "should lead in the coordination of local, state and federal governmental agencies that
can play a role in improving the conditions of environmentally burdened minority and low-
income communities."64 The Work Group's report focused on strategies to address
environmental justice issues when certain applications for environmental permits are filed, but
the report fails to consider the opportunities for using local land use planning and zoning
decisions to address environmental justice issues.
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ENDNOTES
1 53 P.S. Sec. 10101 (West 1997).
2 Pennsylvania Planning Association, Planning in Pennsylvania, undated. Available at
(visited October 2002).
5 City of Pittsburgh v. Zoning Board of Adjustment of City of Pittsburgh, 535 A.2d 278, 1 12 Pa.Cmwlth. 246; appeal
granted, 546 A.2d 622, 519 Pa. 661; appeal granted, 546 A.2d 623, 519 Pa. 662; affirmed, 559 A.2d 896, 522 Pa. 44
(holding the MFC does not apply to the City of Pittsburgh because the definition of municipality does not include
cities of the second class). See 53 P.S. Sec. 10103 (West 1997).
3 Ibid.
4 Municipalities Planning Code 1990-2000, A Decade of Amendments to the Pennsylvania Municipalities Planning
Code (Act 247 of 1968 as reenacted and amended by Act 170 of 1988); Local Government Commission, General
Assembly of the Commonwealth of Pennsylvania (September 2000).
6 H.B. 14 (Act 67 of 2000) and S.B. 300 (Act 68 of 2000).
7 American Planning Association, Planning for Smart Growth: 2002 State of the States, 109-1 10 (February 2002).
8P.L.318(2000).
9 H.B. 2057 (2000).
10 Pennsylvania Planning Association, Planning in Pennsylvania.
11 Ibid
12 Ibid
"Ibid.
15 53 P.S. Sec. 10304 (West 1997).
16 53 P.S. Sec. 10301.4(a) (West Supp. 2002) (municipalities and school districts within the respective county, and
contiguous counties, school districts and municipalities must have an opportunity to review, comment and
participate in the preparation and adoption of the county comprehensive plan).
17 Gerstleyv. Cheltenham Tp. Planning Com'rs, 95 Montg. 195 (1971). If a municipality, however, chooses to enact
impact fees for offsite transportation improvements, it must have adopted either a municipal or county
comprehensive plan, subdivision and land development ordinance or zoning ordinance.
18 Ibid. See also, 53 P.S. § 10306 (West Supp. 2002).
19 53 P.S. Sec. 10301 (a) and (b) (West Supp. 2002).
20 53 P.S. Sec. 10301.1 (West Supp. 2002).
21 53 P.S. Sec. 10301(d) (West Supp. 2002).
22 53 P.S. Sec. 10603 (West Supp. 2002).
23 Ibid
24 53 P.S. Sec. 10301.5 (West Supp. 2002).
25 53 P.S. Sec. 10619.2 (West Supp. 2002).
26 Ibid
27 Department of Community and Economic Development (DCED), About DCED. Available at
(visited
October 2002)
28DCED, Communities hi PA, Community Resources. Available at
(visited October
2002).
29 DCED, Governor's Center for Local Government Services. Available at
(visited October 2002).
30 DCED, Governor's Center for Local Government Services, Pennsylvania Growing Smarter, undated. Available at
(visited October 2002).
31 53 P.S. Sec. 10212 (West Supp. 2002).
32 53 P.S. Sec. 1 1 102 (West Supp. 2002).
33 American Planning Association, Planning for Smart Growth, 109.
34 53 P.S. Sec. 10302(a) (West Supp. 2002).
35 Ibid.
36 Ibid
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Ibid
"Ibid
39 53 P.S. Sec. 10302(a.l) (West Supp. 2002).
Ibid
Ibid.
Ibid
40
41
42
43 Ibid
44 53 P.S. Sec. 10302(d) (West Supp. 2002).
"Ibid
46 53 P.S. Sec. 10302(c) (West Supp. 2002).
47
53 P.S. Sec. 10601
4b 53 P.S. Sec. 10602 (West 1997).
49 53 P.S. Sec. 10603(a) (West Supp. 2002).
50 53 P.S. Sec. 10301.4(a) (West Supp. 2002).
51 53 P.S. Sec. 10603(k) (West Supp. 2002).
52 53 P.S. Sec. 10306(a) (West Supp. 2002).
53 53 P.S. Sec. 10301.4(b) (West Supp. 2002).
"Ibid
55 53 P.S. Sec. 10301(7)(c) (West Supp. 2002).
56 53 P.S. Sec. 10307 (West Supp. 2002).
57 53 P.S. Sec. 10301 (c) (West Supp. 2002).
58 Ibid
59 Ibid
60 53 P.S. Sec. 10302(d) (West Supp. 2002).
61 53 P.S. Sec. 10306(c) (West Supp. 2002).
62 53 P.S. Sec. 10501-A etseq. (West 1997).
Governor Thomas J. Ridge, Executive Order 1999-1, Commonweath of Pennyslvania (January 7, 1999).
4 Pennsylvania Department of Environmental Protection, Environmental Justice Work Group, Report to the
Pennsylvania Department of Environmental Protection, 16 (June 2001).
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274
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APPENDIX I
ILLINOIS PLANNING AND ZONING LAWS
A. State Planning Law
Illinois law does not require planning, but every "municipality may create a planning
commission, planning department or both," and local planning commissions are appointed by the
mayor of a city or president of a village board, subject to confirmation by the governing bodies.1
B. Local Planning Requirements
Where they have been created, local planning commissions and planning departments are
authorized to prepare and recommend to the local governing body a comprehensive land use plan
for present and future development or redevelopment: "Such plan may be adopted in whole or in
separate geographical or functional parts, each of which, when adopted, shall be the official
comprehensive plan, or part thereof, of that municipality."2
Local comprehensive plans may do the following:
• Include reasonable requirements for streets, alleys, public grounds, and other
improvements;
•
Establish reasonable standards of design for subdivisions and for re-subdivisions of
unimproved land and of areas subject to redevelopment in respect to public
improvements as herein defined;
• Establish reasonable requirements governing public streets, facilities, playgrounds,
schools, etc.;
• Designate land suitable for annexation to the municipality;
• Recommend changes, from time to time, in the official comprehensive plan;
• Prepare and recommend to the governing bodies, from time to time, plans for specific
improvements that implement the official comprehensive plan;
•
Assist municipal officials responsible for improvements that are part of the official plan,
to implement these projects and, generally, to promote realization of the comprehensive
plan;
Prepare and recommend to the governing body schemes for regulating or forbidding
structures or activities that may hinder access to solar energy necessary for the proper
functioning of solar systems, as defined in Section 1 .2 of the Comprehensive Solar
Energy Act of 1977, or to recommend changes in such schemes; and
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• Exercise other powers that are germane to the powers listed above, as may be conferred
by the local governing body.
In addition to local comprehensive plans, regional comprehensive plans may be adopted pursuant
to Illinois' Counties Code, Section 5-14001.
C. State Rules & Guidelines
Illinois has authorized creating a statewide comprehensive plan.4 The Department of Commerce
and Community Affairs serves as the state's planning agency. For example, it is responsible for
using state planning grants or federal funds to conduct statewide comprehensive planning, as
well as state and interstate comprehensive planning and research. However, as a practical matter,
it has little involvement in local land use planning issues, as discussed below.
D. Incentives for Local Planning
Prior to August 2002, Illinois had no specific incentives for local planning. But Public Act 92-
0768 was adopted to provide, among other things, technical assistance for local planning, to
encourage local governments to plan and adopt other regulatory and development approaches
that will promote comprehensive planning, and to support planning efforts for one or more units
of local government or planning agencies that are working together.
To receive funding in the form of technical assistance grants under this new Illinois statute, a
locality's new or revised comprehensive plan must address, at a minimum, each of the following
elements:
1) Issues and Opportunities—This element sets forth the vision of the community, identify the
major trends and forces affecting the local government and its citizens, set goals and
standards, and serve as a series of guiding principles and priorities to implement the vision.
2) Land Use and Natural Resources—This element translates the vision statement into physical
terms; provides a general pattern for the location, distribution, and characteristics of future
land uses over a 20-year period; and serves as the portion of the comprehensive plan upon
which all other elements are based. The land use element must be in text and map form, and
it must include supporting studies on population, the local economy, natural resources, and
an inventory of existing land uses.
3) Transportation—This element covers all relevant modes of transportation, including mass
transit, air, water, rail, automobile, bicycle, and pedestrian modes of transportation;
accommodates special needs; establishes the framework for acquiring, preserving, and
protecting current and future rights-of-way; and incorporates transportation performance
measures.
4) Community Facilities (schools, parks, police, fire and water and sewer)—This element
provides for community facilities; establishes levels of service; ensures that facilities are
provided as needed; and coordinates with other units of local government that provide the
needed facilities.
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5) Telecommunications Infrastructure—This element coordinates telecommunications
initiatives; assesses short-term and long-term needs, especially regarding economic
development; determines existing telecommunications services; encourages investments in
the most advanced technologies; and establishes a framework for providing reasonable
access to public rights-of-way.
6) Housing—This element documents the present and future needs for housing within the
jurisdiction of the local government, including affordable housing and special needs housing;
takes into account the housing needs of a larger region; identifies barriers to the production
of housing, including affordable housing; access the condition of the housing stock; and
develops strategies, programs, and other actions to address the need for a range of housing
options.
7) Economic Development—This element coordinates local economic development initiatives
with those of Illinois agencies; ensures that adequate economic development opportunities
are available; identifies the strategic competitive advantages of the local community and the
surrounding region; assesses the community's strengths and weaknesses with regard to
attracting and retaining business and industry; and defines the municipality's and county's
respective roles.
8) Natural Resources—This element identifies and defines the local natural resources such as
water, land, flora, and fauna; identifies land and water areas in relation to these resources;
assesses the relative importance of these areas to the needs of the resources; and identifies
mitigation efforts needed to protect these resources.
9) Public Participation—This element must include a process for engaging the community in
outreach, developing a sense of community, and building consensus; as well as a public
education strategy.
10) Comprehensive plans may also include natural hazards, agriculture and forest preservation,
human services, community design, historic preservation, and adopting subplans as needed!
The decision whether to include these elements in a comprehensive plan must be based on
the needs of the particular locality. See Pub. Act 92-0768, Section 25.
The Act further provides that "municipalities and counties that have adopted official
comprehensive plans in accordance with Division 12 of Article 11 of the Illinois Municipal Code
or Section 5-14001 of the Counties Code may be eligible for additional preferences in state
economic development programs, state transportation programs, state planning programs, state
natural resources programs, and state agricultural programs." See Pub. Act 92-0768 Section
30(b).
Tax increment financing is also authorized for increasing the availability of affordable housing.
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E. State Role in Local Planning
1. State Plan and/or Policy
Illinois does not have any state oversight or control of local planning and zoning. However,
under the new Act, the Department of Commerce and Community Affairs is authorized to
provide education and training for local officials on planning, regulatory, and development
practices and techniques that promote sound comprehensive planning. In addition, the
Department may develop and distribute model ordinances, manuals and other technical
publications. See Pub. Act 92-0768, Section 35.
2. Approval of Local Master Plans and Zoning Ordinances
No state approval is required for local land comprehensive plans or zoning ordinances.
3. Consistency Requirements for Localities
In general, there is no specific language requiring consistency, but the state Board for
Consistency reviews local plans.5 However, where a municipality chooses to accept funding
under Pub. Act 92-0768 for the development or revision of its comprehensive plan, local land
development regulations, including amendments to the zoning map and any other land use
actions, should [not "must"] remain consistent with the new or revised plan for five years after
the plan takes effect. See Pub. Act 92-0768, Section 30.
4. Public Participation Requirements for Localities
There is no specific requirement for public participation other than the public participation
element in comprehensive plans developed under the new Public Act 92-0768 (see item D
above).
5. Reporting Requirements for Municipalities of over 500,000:
The planning commission must review every plan, design, or other proposal and, within 30 days
after they are submitted, must report to the public body or agency with jurisdiction over affected
property or improvements about whether the plan, design, or other proposal conforms with the
long range planning objectives and the official plan for the municipality.
6. Monitoring Requirements for Localities
There are no enforcement or monitoring mechanisms for action by a state agency. However,
municipalities have authority to monitor and enforce their local land use laws.
7. Benchmarks for Localities
There are no performance measures or benchmarks for local plans other than the requirements of
the new Public Act 92-0768 for certain plan elements.
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8. Updates of Plans
Local planning and zoning commissions may amend comprehensive plans and zoning
regulations when necessary as long as they follow proper public notice procedures.7
9. State Leadership
• The Urban Renewal Consolidation Act of 1961 states that the governing body of each
municipality has the power to "acquire by purchase, condemnation or otherwise any
improved or unimproved real property, the acquisition of which is necessary or
appropriate for the rehabilitation or redevelopment of any blighted or slum area or any
conservation area as defined in Section 3 of the Urban Community Conservation Act."8
• Local governing bodies may enact ordinances prescribing fair housing practices, defining
unfair housing practices, and establishing an office of fair housing or human relations.9
• Illinois has adopted standards for the operation of local commissions that administer and
enforce local ordinances that prohibit discrimination based on race, color, religion, sex,
creed, ancestry, national origin, or physical or mental handicap in the listing, sale,
assignment, exchange, transfer, lease, rental, or financing of real property for residential
use, and prescribing penalties for violations of those ordinances.10
10. Impact & Development Fees:
Illinois law does not authorize collection of such fees.
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ENDNOTES
1 S.H.A.
2 S.H.A.
3 S.H.A.
4 S.H.A.
5 S.H.A,
6 S.H.A.
7 S.H.A.
S.H.A.
S.H.A.
0 S.H.A
65TCLS5/11-
65ICLS5/11-
65ICLS5/11-
65ICLS5/11-
65ICLS5/11-
65ICLS5/11-
65TCLS5/11-
65ICLS5/11-
65TCLS5/11-
.65ICLS5/11
12-4(1993).
12-5 (1993)
12-5 (1993)
12-5 (1993)
12-6(1993)
12-4.1 (1993)
12-7(1993)
11-1(1993)
11-1(1993)
-11-1(1993)
280
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APPENDIX J
ANSWERS TO QUESTIONS ABOUT ODORS
Verbatim Excerpts from the Illinois Environmental Protection Agency's
Responsiveness Summary on NPDES Permit Renewal Hearings
Metropolitan Water Reclamation District of Greater Chicago (MWRDGC) Facilities
January 22, 2002
ALTGELD GARDENS
1. There are a number of sources for these odors. Why isn't it possible to find out which
odors originate at the MWRDGC facility?
The greatest number of complaints in this area seemingly related to emissions are from
Chicago Specialties. The IEPA and the US EPA have taken legal action against Chicago
Specialties, and the production unit which is the main source of odor complaints, has been
shut down permanently.
On any given day in a metropolitan community, odors can be emitted by any number of
industrial and/or residential activities. Depending on prevailing winds and varying climatic
conditions, odors can be detected from many miles away. Even if the odors are confined to a
narrow wind pocket or particular locality, they can be indistinguishable from each other
because of either aggregating affects or the similarities of the emission activity (e.g., several
chemical manufacturers emitting a similar 'chemical-like' smell).
As a general rule, the IEPA does not speculate about what odorous compound(s) may be
present at ground level or in the atmosphere on any given day unless a complaint was filed
with the lEPA's field office and/or a field inspector was able to investigate the apparent
source of the odors. Even then, the lEPA's authority to enforce against any person(s) or
business entity causing the odors is somewhat limited. As discussed herein, the current
framework of Illinois' environmental laws and regulations does not recognize every type or
every occurrence of odors as an actionable offense. Rather, the odors must be of such a
quality or nature as to constitute "air pollution" as defined by Section 3.02 of the Illinois
Environmental Protection Act. See, 415 ILCS 5/3.02 (2000).
The IEPA will monitor facility operations for future compliance with applicable
environmental regulations and permits. The IEPA will also make every effort to promptly
and thoroughly investigate odor complaints involving MWRGDC's Calumet Plant that are
brought to our attention. Concerned citizens should continue to make their opinions and/or
odor complaints known to the IEPA, local authorities and their elected public officials.
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2. If you know there are odors in the area, why are you relying on the logs filled out by the
residents instead of checking out the source yourselves?
The IEPA does conduct inspections. However, the IEPA cannot be at the site constantly.
Further, when Agency staff have been at the site odors that extend to the vicinity of the
Altgeld Gardens neighborhood have not been observed. Odors logs are often the only
evidence of the existence of such odors. Odor logs maintained by citizens can be very
important in identifying the source of odors, its off-site impact and in assisting with any
resulting civil or criminal prosecution of any person(s) or business entity responsible for the
air pollution.
If you believe the MWRDGC facility is the source of odor, you should contact their odor
hotline.
3. What chemicals are causing odors that we smell in Altgeld gardens?
With the general Calumet area being highly industrialized and the source of odors possibly
coming from many different sources, it is impossible to say what odors the residents of
Altgeld Gardens have experienced.
4. The people of this area suffer from numerous reported ailments. The current and
future health concerns range from asthma, heart disease, cancer, skin irritations and
rashes, migraines, kidney failure, Crohn's disease, throat irritation, pink eye, viruses,
congested respiratory system, hair loss, stuffy ears, thyroid problems, allergy, eye
irritation, stomach pain, leg aches, ear pain, neck pain, chest pain, bumps on skin,
vision problems, chronic cough, olfactory fatigue. We believe them to be caused by the
odors from the Calumet facility.
The complaints described at the hearing are various in nature and could be found in any
general population. Odors from the facility are likely not the cause of many of the variety of
symptoms and ailments described. Genetics and personal lifestyle choices have a much
greater effect on the formation of disease including heart disease and cancer. Odors could be
an asthmatic or allergenic irritant and cause nuisance complaints. If you feel that there are
increased illnesses in your neighborhood you should contact the Illinois Department of
Public Health, which performs health assessments.
5. Who should residents contact when the odors are strong from the Calumet plant? Can
there be a 1-800 number, because it is costing us now?
The residents should contact the Chicago Department of Environment, the IEPA or the
MWRDGC. The Chicago Department of Environment can be reached at 312-744-7672. The
city can also be reached by dialing 311 toll free. The IEPA, Bureau of Air, Field Operations
Section, telephone number is 847-294-4000. The Chicago Department of Environment can
be contacted toll free at 311 to make an odor complaint. If you believe the MWRDGC
facility is the source of the odor, you should contact their odor hotline.
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6. Can the odors (from MWRDGC) be regulated or monitored by the EPA or other
agencies?
The IEPA, Bureau of Air, Field Operations Section, investigates odors from this site and all
other industrial/commercial sites in Illinois. Last year the Agency investigated dozens of
complaints, many of them for sources around Altgeld Gardens, but did not receive any
complaints of odor originating at the Calumet Water Reclamation Plant.
There are no instruments to directly monitor odors. Neither the IEPA nor the U.S. EPA has
an odor standard. Odors are regulated under the "Environmental Protection Act" as a
nuisance violation. The nuisance provision prohibits air emissions from unreasonably
interfering with the enjoyment of life and property. There are no other regulations applicable
to air emissions from drying beds at the Calumet WRP.
Sources of odors are frequently regulated by local municipal or county zoning ordinances
and are generally prohibited to the extent that such odors constitute a legal nuisance. Under
state law, odors can fall within the prohibition established under Section 9(a) of the Illinois
Environmental Protection Act, which generally provides that no person shall cause or allow
the emission of contaminants into the environment so as to cause or tend to cause air
pollution. See, 415 ILCS 5/9(a)(2000).
Air pollution is defined by the Illinois Environmental Protection Act as "the presence in the
atmosphere of one or more contaminants in sufficient quantities and of such characteristics
and duration as to be injurious to human, plant or animal life, to health or to property, or to
unreasonably interfere with the enjoyment of life or property." See, 415 ILCS 5/3.02 (1998).
Illinois courts have recognized that this definition creates two distinct categories of air
pollution: 1) air pollution which causes an injury to a person(s) life or property, and 2) air
pollution which "unreasonably interferes" with a person(s) enjoyment of life or property.
See, Incinerator. Inc. v. Pollution Control Board. 59 I11.2d 290, 319 N.E.2d 794 (111. 1974).
Most odor cases commonly involve the second category of air pollution. In evaluating this
type of air pollution case, the Illinois Supreme Court has observed the following:
"There is little that any person can do which does not in some degree 'interfere with the
enjoyment of life or property' of other persons. The very act of breathing consumes
oxygen. In our opinion the word 'unreasonably' as used in Section 3(b) was intended to
introduce into the statute something of the objective quality of the common law, and
thereby exclude the trifling inconvenience, petty annoyance or minor discomfort." See,
Processing and Books. Inc. v. Pollution Control Board. 64 I11.2d 68, 351 N.E.2d 865 (111.
1976).
Because of the "reasonableness" standard inherent in the definition, a focal point of this type
of air pollution case is those facts and circumstances that bear upon the severity or impact of
the alleged odors. Thus, evidence that a complainant(s) periodically cannot enjoy a back-
yard barbeque, must frequently close all windows to a house or business, or avoid
participating in the normal social, economic or recreational pursuits because of the
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interference of odors are important considerations in any such lawsuit. The Pollution Control
Board or reviewing court will then determine, based on the totality of the evidence presented
at trial, whether a cause of action based on this category of air pollution can be sustained.
Most important for this site is that last year the Illinois EPA investigated several odor
complaints for sources around Altgeld Gardens, but did not receive any complaints for the
Calumet WRP.
7. Does any governmental agency currently monitor odors from the Calumet facility?
See response to #6.
8. Can odors from the treatment process be controlled?
Odors can be controlled by ozonators, air scrubbers and by operational controls by treatment
plant personnel. The Agency does not know the exact source of any odors from the Calumet
facility. This will be identified in a study to be performed by MWRDGC.
See response to #9.
The odors emanating from the Calumet WRP into the surrounding neighborhoods continue to
be a concern for the Agency. The Agency believes that the odors are from the sludge drying
beds and are therefore outside the control of an NPDES permit. In October 2000, the Agency
reissued state permits to the MWRDGC for their sludge drying and disposal process but did
add a provision that the MWRDGC was to prepare a study on proper odor management by
October 2001.
9. Odors from the Calumet facility seem to increase during periods of precipitation. Why?
The IEPA, Bureau of Water, has issued a permit requiring the Calumet WRP to conduct an
odor study. This study should identify potential sources of odors as well as the possible
magnitude of any odor. From that study, the MWRDGC can determine what measures need
to be taken to control odors.
10. What is an odor log?
Odor logs are a type of 'form' document developed by the IEPA that are meant to assist
citizens in recording facts about a given odor occurrence. These forms enable a person to
document the time and place of the odor occurrence, specific weather conditions, and other
relevant characteristics about the odors. If citizens experience odors that are harmful to their
health or unreasonably interfere with the enjoyment of their lives or property, they should
also document or maintain information pertaining to the effects of said odors (e.g., medical
records, video tapes of visible emissions or discharges, reported occurrences in which
citizens had to close the windows to their house, relocate or cancel an outdoor barbeque,
etc.).
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11. How important is it for the neighbors of the Calumet facility to fill out the odor logs?
Unless the lEPA's field inspector was notified or otherwise present at a given time and
location to perform an investigation of the alleged odors, odor complaints and copies of any
accompanying odor logs that are reported to the IEPA or other local authorities are often the
only evidence of the existence of such odors. This is especially true where the odors
dissipate after a short period of time and may not be ascertainable by the time that a field
inspector arrives at a given location. For this reason, odor logs maintained by citizens can be
very important in identifying the source of the odors and in assisting with any resulting civil
or criminal prosecution of any person(s) or business entity responsible for the air pollution.
12. How can a person obtain an odor log?
Odor logs can be obtained from the IEPA upon request. Copies can be requested from the
Illinois EPA's regional field office located at 9511 Harrison Street, Des Plaines, Illinois
60016. The phone number for the regional office is 847-294-4000.
13. Is the Calumet facility currently in compliance with state and federal regulations? Is
non-compliance the basis for permit denial?
Section 39 of the Illinois Environmental Protection Act imposes upon the IEPA a duty to
issue permits for the construction, installation or operation of any type of facility, equipment,
vehicle, vessel or aircraft that is required to obtain a permit by the Pollution Control Board
upon proof by the permit applicant that the facility, equipment, vehicle vessel or aircraft will
not cause a violation of the Act or regulations adopted thereunder. The Pollution Control
Board and Illinois courts have recognized that this standard for permit issuance requires the
IEPA to review the permit application and then determine whether "the application and the
supporting documents demonstrate that the Environmental Protection Act will not be violated
if the requested permit is issued." City of East Moline v. Illinois EPA, PCB No. 86-218
(September 8, 1983); Illinois EPA v. Pollution Control Board. 118 Ill.App.3d 772, 455
N.E.2d 158 (1983).
Permitting and enforcement responsibilities vested in the IEPA under the Illinois
Environmental Protection Act are separate and distinct functions. The Pollution Control
Board and Illinois courts have held that the IEPA cannot lawfully deny a permit as a
substitute for enforcement. See, Environmental Protection Agency v. Pollution Control
Board, 252 Ill.App.3d 828, 624 N.E.2d 402 (3rd Dist. 1993); ESG Watts, Inc.. v. Pollution
Control Board. 286 ni.App.3d 325, 676 N.E.2d 299 (3rd Dist. 1997); Waste Management v.
Illinois Environmental Protection Agency. PCB Nos. 84-45, 84-61 and 84-68 (October 1,
1984); Centralia Environmental Services. Inc., v. Illinois Environmental Protection Agency.
PCB No. 89-170 (October 25, 1990).
It is the Agency's duty to incorporate operational controls and restrictions in an NPDES
permit to comply with federal and state law.
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14. We get the sludge from other neighborhoods. Let everybody be responsible for their
own sludge. We should not have to bear the burden of everyone's sludge. We need to
make them come into compliance. Certain parts are regulated, but not the odor and it
needs to be. It is killing a lot of people here.
In waste management it is beneficial to have large centralized locations. This makes it
economically and technically feasible to treat the waste. There are three treatment facilities
in the Chicago area to treat sewage from the city's residents at Calumet, Stickney and on the
North Side. The facilities are generally put along highways or in industrial areas to generally
minimize impacts to residential areas.
The sludge treatment and drying areas for the District are regulated under a state-operating
permit that included an odor control study and development of a management plan
referenced in response #9.
15. The Calumet Water Reclamation Plant is one of the major emitters of odors in the area.
Why haven't you placed an agency employee here to monitor the odors? The IEPA
should have a field inspector monitor odors at the facility daily.
A field inspector is assigned to the Calumet area and is in the vicinity frequently. Restricting
a field inspector to one facility is unwarranted. Further, because of citizen complaints, the
IEPA has increased surveillance of the MWRDGC facility since July 2000.
16. Isn't the EPA's job to determine the effects of these odors from the Calumet plant on
human health?
The IEPA monitors and regulates emission sources to assure compliance with the
environmental regulations. Regulations are developed to be protective of human health. The
environmental regulations treat odors as a nuisance violation and an impediment to
enjoyment of personal property, not as a threat to human health.
17. We would like to have an air pollution test done in the community regularly - every
week and even in the rain.
There are no air quality standards for odors and significantly, there are no specific air testing
methods for monitoring odors. Rather, odors are regulated on a nuisance basis. Only humans
can determine the degree of interference due to a particular odor. Documented odor
complaints through IEPA investigation or through community odor logs provide the best
technical data and support for compliance related relief. Accordingly, the IEPA relies on
citizens to report odors and Agency inspections.
18. In 1990 an orange cloud broke out over Calumet Facility (across from Rosebud Farm)
around 6 or 7 in the morning and I passed out. I have been sick with asthma and
breathing problems. What was that orange cloud and could it have contributed to these
problems?
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The IEPA is unaware of this incident. MWRDGC is not a likely source of an orange cloud.
Unfortunately, there is probably no way to find out today what was released from an
unknown source 11 years ago.
19. Can IEPA make MWRDGC and the other companies clean up the area or shut them
down?
As with any other person or business entity, MWRDGC and nearby companies in the
surrounding area are each responsible for the consequences of their own actions. To the
extent that MWRDGC or the other companies are found to have caused or allowed air, water
or land pollution, the IEPA has authority to initiate enforcement for said occurrences. It
should be noted that a State's Attorney of the county in which the alleged violation occurred
also has that authority.
20. Are you going to communicate with the community to let them know about potential or
actual risks here? The community needs information and warnings on the hazards in
the area.
Information on the amount of emissions released to the environment by various industries is
published by the U.S. EPA annually in their Toxic Release Inventory report. In the case of
emergency, local emergency responders would notify residents of immediate danger and any
action needed. Also the IEPA notifies mass media, businesses and other state agencies to
spread information when there is a possibility of a high ozone day.
21. Can you include information on general spills from companies in the area and
monitoring reports?
A review of the Agency data from 1996 to 2001 finds the following number of spills have
been reported:
Calumet City - 10
Chicago - 794
Burnham - 3
Dolton - 311
River Dale - 23
Additional information can be obtained for specific locations on request.
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APPENDIX K
LOUISIANA PLANNING AND ZONING LAWS
A. State Planning Law:
The Louisiana Constitution specifically authorizes local governments to adopt regulations,
subject to uniform procedures established by law, for land use, zoning, and historic preservation;
to create commissions and districts to implement those regulations; to review decisions of any
such commission; and to adopt standards for use, construction, demolition, and modification of
certain areas and structures. Although Louisiana's comprehensive planning statutes remain
virtually identical to those adopted by the Legislature in the early 1920s,2 a new statute in 1977
was enacted to authorize the creation of state planning and development districts for the purpose
of facilitating intergovernmental cooperation.3
Parish planning commissions are authorized to develop and adopt master plans for the physical
development of unincorporated territory within each parish, and municipal planning
commissions are authorized to adopt master plans for the physical development of
municipalities.4 Municipalities are also granted authority to adopt zoning regulations,5 enact
transfer of development rights programs, and enforce local zoning laws.7 In addition, local
historic preservation commissions and districts are recognized by state statute.8
B. Local Planning Requirements
Louisiana has authorized local governments to adopt local land use regulations and plans. A
parish planning commission adopts a master plan for the unincorporated territory of a parish,
while a municipal planning commission adopts a plan for the municipality. If a locality—either
a parish or a municipality—chooses to plan, its planning commission must adopt a master plan
for development; and its plan must promote health, safety, and general welfare. Its plan must
also provide adequate access t light, protect open space and air quality, establish traffic systems,
promote healthful and convenient distribution of population, and provide for public housing.
Local plans must include, among other things:
• General location, character, and extent of railroads, highways, streets, viaducts, subways,
bus, streetcar, and other routes, bridges, waterways, lakes, waterfronts, and playgrounds,
squares, parks, aviation fields, and other public ways, grounds, and open spaces;
• General location of public buildings, schools, and other public properties;
• General character, extent, and layout of public housing and replanning of blighted
districts and slum areas;
• General location and extent of utilities and terminals — whether publicly or privately
owned or operated - for water, light, sanitation, communication, power, transportation
and other purposes;
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• Removal, relocation, widening, narrowing, vacating, abandonment, change of use or
extension of any of the foregoing; and
• For a parish planning commission, the zoning plan must control height, area, bulk,
location, and use of buildings and other premises in urban areas or in areas suitable for
-9
urbanization outside municipal limits.
Parish development boards may also be created10 and, once established, they:
(S)hall prepare a written plan and report for the development of the resources and
facilities of the parish including information showing the location and condition
of the streets, highways, bridges, waterways, parks, aviation facilities, commercial
airlines, pipe lines, railroads, electric power lines, mines, factories, forests, other
natural resources, public utilities, and other pertinent and appropriate information.
The plan and report shall include definite recommendations by the board for the
utilization and correlation for better economic use and distribution of the
resources of the parish.11
Municipalities must choose to establish either a parish development board or a planning
commission, but they may only have one or the other, not both.
A municipality located in a parish that has a parish planning commission may designate the
parish commission as its local planning commission. If this occurs, the parish planning
commission has all the powers and functions relating to making, adopting, and amending a
master plan for that municipality.13
C. State Rules & Guidelines:
Louisiana's enabling statutes as discussed here authorize local planning and zoning and land use
controls. There is no coordinated statewide planning, although many state agencies handle a.
variety of planning activities. For example, the Division of Administration in the Governor's
Office may conduct surveys and studies concerning the development of state resources and
facilities, review current programming and future planning of all state agencies, review
programming and planning of parishes and municipalities, and coordinate planning among
various state agencies.1
D. Incentives for Local Planning
Louisiana does not offer any state incentives for local planning.
E. State Role in Local Planning
la. State Plan and/or Policy
There is no statewide role in land use planning and zoning in Louisiana, as this function is left
largely to the parishes and municipalities under the statutory structure described above.
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However, Louisiana has created certain state development districts to facilitate
intergovernmental cooperation and to coordinate state, federal, and local planning and
development programs.
Ib. Regional Planning Commission
Pursuant to state statute, the legislative bodies of any municipality and a surrounding or
contiguous parish, any two or more contiguous municipalities, any one or more municipalities
and one or more parishes all forming a single urbanized or suburbanized area, or any one or more
municipalities and one or more parishes all forming a single urbanized area of more than fifty
thousand population and including contiguous municipalities and parishes—referred to as
"urbanized areas"—are authorized to create a regional planning area out of their combined
territories; and the police jury of any parish may likewise join with one or more counties in an
adjoining state to form a single area for that purpose.16
Regional planning commissions must prepare and amend their regional development plans.17 A
regional plan, designed to promote the general welfare and prosperity of the regions must
contain:
(a)
(b)
(c)
(d)
A statement of the objectives, standards and principles sought to be expressed in the
regional development plan;
Recommendations for the most desirable pattern of land use within the regional
planning area, in the light of the best available information concerning topography,
climate, soil and underground conditions, water courses and bodies of water, and other
natural or environmental factors, as well as in the light of the best available
information concerning the present and prospective economic bases of the regional
planning area; trends of industrial, population or other developments; the habits and
standards of life of the people of the regional planning area; and the relation of land
use within the regional planning area to land use in adjoining areas. These
recommendations must, insofar as appropriate, indicate areas for residential uses and
their maximum recommended densities; areas for farming and forestry, mining and
other extractive industries; areas for manufacturing and industrial uses, with
classification of such areas in accordance with their compatibility with land uses in
adjoining areas; areas for concentrations of wholesale, retail, business, and other
commercial uses; areas for recreational uses and open spaces; and areas for mixed
uses;
The circulation pattern recommended for the regional planning area, including routes
and terminals of transit, transportation and communication facilities, whether used for
movement within the regional planning area or for movement from adjoining areas;
Recommendations concerning the need for, and the proposed general location of,
public and private works and facilities, such as utilities, flood control works, water
reservoirs, pollution control facilities, military or defense installations, when those
works or facilities—by reason of their function, size, extent, or any other causes—are
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of regional or metropolitan, as distinguished from purely local, concern or for any
other cause are appropriate subjects for inclusion in a regional development plan;
(e) Such other recommendations of the regional planning commission concerning current
and impending problems as may affect the regional planning area as a whole.
In addition, regional planning commissions are authorized to, among other things:
• Conduct or assist in studies and investigations of existing and emerging problems of
agriculture, industry, commerce, transportation, population, housing, public service, local
government and allied matters affecting the development of the regional planning area;
• Prepare inventories of the region's natural resources and of major public and private
works and facilities of all kinds which are deemed of importance to the development of
the regional planning area as a whole;
. Cooperate with, and provide planning assistance-including but not limited to surveys,
land use studies, urban renewal plans, technical services and other planning work to
parish, municipal, or other local governments, or planning agencies;
• Coordinate planning activities with the planning activities of state agencies, parishes,
municipalities or other local units within its regional planning area, and cooperate with or
assist departments and other agencies of federal, state, and local government as well as
other regional planning commissions in the execution of their planning functions with a
view to harmonizing their planning activities with regional development plans.
Regional planning commissions may not exercise the functions of any municipal planning
commission or parish planning commission if these bodies are established within a regional
planning area, except where the legislative body of the municipality or when; a parish designates
the regional planning commission as its local or parish planning commission.
Two or more regional planning commissions are authorized to form an association for the
purpose of coordinating comprehensive planning and development programs so they can resolve
any economic, social, physical, or governmental problems of the state and its citizens. In
addition to the general grant of authority to create regional planning entities, Louisiana statutes
specifically allow for creating specialized regional planning organizations covering specified
areas within the state, such as a Metropolitan Planning Commission.
2. Approval of Local Master Plans, and Zoning Ordinances
2a. Master Plan
The development and adoption of a local master or comprehensive plan does not require state
approval. However, before adopting a master plan, a local planning commission must follow
appropriate public notice procedures and allow an opportunity for public input. Certified
copies of the adopted plan must be filed with the local legislative body, parish clerk of court, and
the Louisiana State Planning Office.
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2b. Zoning Ordinances
The local governing bodies of all municipalities may enact zoning ordinances,25 and these
regulations must comply with their comprehensive plans.26 Where certain municipal planning
commissions have been established, they must also serve as the zoning commissions but must
hold separate meetings and maintain separate records. 27 The governing bodies of parishes with
populations over 23,000 that have no municipal government, are authorized to adopt zoning
within the parish after appropriate notice to all landowners. 28 In addition, Louisiana statutes
grant specific parishes general zoning authority.29 Parishes with home rule charters and
populations in excess of 400,000 may also adopt comprehensive plans and zoning ordinances.30
As mentioned below, copies of zoning ordinances, as well as other land use documents, must be
filed with appropriate regional planning commissions for informational purposes only; but
municipalities and parishes may seek advice and input from the regional commissions.31
Affordable housing exceptions to zoning ordinances for local housing authorities are also
authorized to facilitate development, redevelopment, and other activities. 32 Zoning ordinances
may not prohibit condominium ownership or impose requirements that would not be imposed on
similar property ownership.33
3. Consistency Requirements for Localities
3a. State
Parishes, municipalities, and local planning agencies must file all their plans, zoning ordinances,
official maps, building codes, subdivision regulations and planning reports with the appropriate
regional planning commission for informational purposes. The governing bodies of parishes
and municipalities may also submit this information to the regional planning commission and
obtain the advice of the Commission.35
3b. Adjacent Localities
In a parishes where there are both parish and municipal planning commissions, a municipal
commission must consult and cooperate with the parish commission to ensure adjusted and
harmonious development among the multiple jurisdictions, zoning districts, public
improvements, utilities, and subdivisions that exist in the parish.36
4. Public Participation Requirements for Localities
When enacting comprehensive plans, planning commissions must hold at least one public
hearing and must issue appropriate public notices that include the purpose, time, and place of the
hearing in a newspaper of common local circulation.37
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5. Reporting Requirements for Localities
Localities are required to file their plans with the State Planning Office although that office does
not conduct any legal review.38 Localities are also required to submit their planning documents
to the appropriate regional planning commission for informational purposes.
6. Monitoring Requirements For Localities:
Enforcement of local zoning and land use regulations is the responsibility of the enacting
municipality or parish. There is no statewide or regional monitoring of compliance with land
use plans or zoning ordinances.
7. Benchmarks for Localities
There are no statewide performance measures or benchmarks for local or regional planning and
zoning because these functions are optional at the local level.
8. Updates of Plans
There is no statutorily prescribed time period for regularly reviewing and updating
comprehensive plans or master plans.
9. State Leadership on Environmental Justice That Could Impact Local Land Use
Louisiana's Department of Environmental Quality has been mandated by the Legislature to
complete an environmental justice study concerning the impacts of air pollution and waste
discharge from facilities in or near residential areas.40 That study has never been completed,
probably because the mandate was contingent on funding being available. Allegedly, the
funding for the study has never been approved by the Legislature.
10. Impact & Development Fees
Impact fees on development are not statutorily authorized in Louisiana.
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ENDNOTES
1 LSA-Const. Art. 6, section 17 (1974). This language is based on the 1921 State Constitution, Art. 14 section 29
(West 1996).
2 See American Planning Association, Planning for Smart Growth: 2002 State of the States, 65 (2002). Available at
(visited October 2002).
3 Id. Citing, La. Acts of 1977, No. 472, sec. 1.
4 LSA-R.S. 33:106 (West Group 2002).
5 LSA-R.S. 33:4721 (West Group 2002).
6 LSA-R.S. 33:4722 (West Group 2002).
7 LSA-R.S. 33:4728 (West Group 2002).
8 LSA-R.S. 25:731 et. seq. (West Group 2002).
9 LSA-R.S. 33:106 (West Group 2002).
10 LSA-R.S. 33:121 (West Group 2002).
11 LSA-R.S. 33:127 (West Group 2002).
12 LSA-R.S. 33:130 (West Group 2002).
13 LSA-R.S. 33:1 18 (West Group 2002).
14 LSA - R.S. 39:4.1 (West Group 2002).
15 LSA- R.S. 33:140.61 (West Group 2002)
16 LSA-R.S. 33:131 (West Group 2002).
17 LSA-R.S. 33:135 (West Group 2002).
18 Ibid.
19 Ibid.
20 LSA-R.S. 33:137 (West Group 2002).
21 LSA-R.S. 33:135.1 (West Group 2002).
LSA R.S. 33:140.6 (West Group 2002) (authorizing the Shreveport Metropolitan Planning Commission)
23 LSA R.S. 33:108 (West Group 2002).
24 Ibid.
25 LSA-R.S. 33:4721 and 33:4722 (West Group 2002).
26 LSA-R.S. 33:4723 (West Group 2002).
LSA R.S. 33:106 (West Group 2002) (this section is applicable to planning commissions established pursuant to
Subpart A (Planning Commissions), Part IV (Physical Development of Parishes and Municipalities) of Chapter 1
(Creation, Organization, Alteration and Dissolution) of the Municipalities and Parishes Code)
LSA-R.S. 33:4877 and 33:4878 (West Group 2002).
29 LSA.-R.S. 33:140.51 -140.59 (West Group 2002) (St. Bernard Parish); 33:140.121-140.129 (Grant Parish)-
33:140.151-140.159 (Natchitoches Parish); 33:140.161-140.169 (Acadia Parish); and 33:140.171-140.179 (West
Baton Rouge Parish).
30 LSA-R.S. 33:140.181 (West Group 2002).
31 LAS-R.S. 33:138 (West Group 2002).
32 LSA-R.S. 40:524 (West Group 2001).
33 LSA-R.S. 9:1121. 106 (West Group 2000).
34 LSA-R.S. 33:138 (West Group 2002).
35 Ibid.
36 LSA-R.S. 33 : 1 1 9 (West Group 2002).
37 LSA-R.S. 33:108 (West Group 2002).
39 LSA-R.S. 33:138 (West Group 2002).
40 LSA-R.S. 30: 201 1.2 (West Group 1997).
Morgan, Lewis & Bockius, LLP, EnvironmentalJustice: 50 State Summary, prepared for the American Chemistry
Council (March 2000). See Louisiana section.
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APPENDIX L
Final Recommendations to the Governor by the
Mississippi River Corridor Task Force
September 30,1999
Executive Order MJF 98-01, as amended, requires the Mississippi River Corridor Task
Force "to provide the Governor and state agencies with objective recommendations
regarding the most efficient and effective means to obtain and address public comment
on all aspects of future proposals for development or expansion projects, including
possible human health, environmental, and economic development issues, along with
recommendations as to the resolution of any potentially conflicting concerns." In
satisfaction of this mandate, the Mississippi River Corridor Task force makes the
following recommendations:
1.
The State of Louisiana should consider the establishment of a State
Environmental Review Process (SERF) modeled after the National Environmental
Policy Act and implementation guidance developed by the Council on
Environmental Quality. It should be a relatively short, streamlined and focused
process required of only "major" projects. It should apply to all "major" actions
within the state, not just environmental permitting actions. This process could
also accommodate the "LT. Questions" issue. Scoping meetings and hearings
would provide for public participation and due process. It would provide a much-
needed open, structured, and predictable process for decision-making. There is a
wealth of federal case law concerning NEPA decisions to provide guidance.
Some fifteen states and the District of Columbia have enacted mini-NEPA
statutes that generally require state agencies to oversee the preparation of
environmental impact statements on proposed actions that may significantly affect
the environment.
a) The State of Louisiana also should consider the development of a set of
guidelines designed to promote dialogue between the community and a
prospective industry prior to or early in the environmental permitting process.
b) There should be an earnest attempt to seek input about local concerns in the
process of scoping an environmental impact assessment study for a proposed
development. Such input would provide a good means for addressing the
concerns of citizens residing in the vicinity of the proposed industrial
facilities.
c) Expand the LDEQ pre-permitting program to include representatives of the
Department of Economic Development, the Department of Health &
Hospitals, the Department of Labor, and the Department of Agriculture, and
any other state agency, where appropriate, to serve as resources to 'both
industry and the community during the permitting process.
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2. Consider the formation of a regional organization to integrate, give greater voice
to, and assist with coordinating of activities of the multiple jurisdictions of the
region. Such an organization would be established as a resource for coordination,
not as another layer of bureaucracy. Louisiana has metropolitan planning
organizations such as the Capital Region Planning Commission and river basin
organizations such as the Amite River Basin Drainage and Water Conservation
District that are designed to address specific issues on a regional basis and assist
with coordination of efforts of numerous local jurisdictions. The Mississippi
River Corridor is a major economic engine for the State of Louisiana and is rich
in history and human and natural resources. The parishes and communities of the
region have to deal with a lot of common, local issues, but do not have the vehicle
for addressing regional concerns such as sustainability of environmental and
economic resources, including quality of life and self-sufficiency.
a) This organization should consist of officials from state and local government,
industrial representatives, and residents of the Mississippi River Industrial
Corridor, and should continue working on Environmental Justice-related
issues in the Mississippi River Industrial Corridor and elsewhere in Louisiana.
b) Develop a mechanism whereby the positive impact of industry in the
Mississippi River Corridor can be assessed and made available to the public
each year. Annual investment, jobs, annual payrolls, annual state and local
taxes paid, community outreach programs in place, funds donated for
community programs, and value of service time given to communities each
year by the company are examples of this positive impact. The information
provided by each company to the data collector could be aggregated by the
type of industry before release to the public so individual company
information is not disclosed. This type of information will allow the public to
see positive impact of industry. It will also serve as a tool that companies can
use to identify effective community outreach programs. Finally, this data can
be used to derive standards to allow for the projection of the total positive
impact of a new industrial company locating hi the area.
c) Establish a stakeholder team to develop guidance on how to most effectively
accomplish that communication in the river corridor parishes. This guidance
should also address means to avoid or mitigate the polarization that so often
develops around a proposed action.
d) The pre-permitting process should include a component that allows business,
government and the community an opportunity to form an advisory alliance to
jointly discuss considerations involved in siting, expansions and other
permitting requests at the beginning of the permit application process.
3. Seek funding for collaborative job training programs between business and
government that target residents of the Mississippi River Corridor who live in
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9.
close proximity to existing or proposed industrial facilities. Establish a
mechanism for dissemination of job training program information and dispersal of
funds.
Encourage continued support of on-going health studies, including the Lead
Surveillance System and the Lower Mississippi River Interagency Cancer Study
(LMRICS).
a) Secure funding to establish health screenings in the Mississippi River
Industrial Corridor to determine whether there is any relation between
emissions and residents' illnesses.
b) Continue the monitoring of cancer and other health problems in both the
Mississippi River Industrial Corridor and elsewhere in Louisiana.
c) Find out if health concerns around emissions are valid. If such concerns
are valid, change permits; if concerns are not valid, take steps to promote
better communication.
Recognize the importance of Environmental Justice in the context of
environmental permitting and regulation. However, the impact of Environmental
Justice upon economic growth should be recognized and steps should be taken to
ensure that existing laws do not unfairly impact long-term growth in the state.
Recognize that Environmental Justice does not apply universally. Take steps to
identify areas where Environmental Justice allegations are being lodged for
questionable purposes and areas where there are genuine cases of Environmental
Justice.
The Governor and the Legislature should support additional resources for the
state's environmental programs.
Strengthen existing state whistleblower laws to provide increased guarantees and
protections for employees of industrial facilities who report suspected violations
and suspected near violations of existing environmental laws and regulations.
Existing state whistleblower laws should be compared to similar federal laws.
Where a federal whistleblower law is found to be more stringent and effective,
then the federal law should be incorporated into Louisiana law.
Encourage private groups to develop a program that offers financial rewards to
citizens who step forward to report suspected violations of existing environmental
laws and regulations.
Seek funding to develop a program designed to heighten public awareness of
existing federal and state whistleblower laws.
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10. The Governor should recommend that the Legislature study the concept of zoning
with a goal of developing more active and broader based land use planning.
Explore the possibility of statewide zoning laws and minimum statewide siting
standards for new industrial development. Develop legislation requiring the
establishment of buffer zones between a given community and a proposed
industrial facility. Encourage local governing bodies to listen to and address
resident concerns about local zoning and land use planning.
11. Secure legislative funding to allow LDEQ to conduct the environmental justice
study mandated by Louisiana R.S. 30:2011.2
The department shall examine and study the relationship
between emission of air pollutants and the discharge or
wastes by facilities located in or near residential areas. The
study shall determine the amount of such emissions and
discharges in each residential area of the state. The study
shall include permitted and unpermitted emissions and
discharges. The study shall determine and set out any
correlation that may exist between the emissions and
discharges and residential areas.
The department shall not commence the study authorized in
this section until funds have been specifically approved for
the study by the Legislature. The department shall not
divert existing funds or fees from other budgeted programs
to fund this study, but may provide in-kind services to
match any federal grants received.
The present report and its recommendations should be included in any study
conducted under Louisiana R.S. 30:2011.2.
12. Investigate the development of an Environmental Dispute Resolution program,
utilizing alternative dispute resolution (ADR) techniques, that those individuals
with environmental justice-related grievances can employ in lieu of Title VI
complaints and other lawsuits.
13. Conduct further review and study of recommendations made by the Institute of
Medicine in its recently released book, Toward Environmental Justice: Research,
Education, and Health Policy Needs (Washington, D.C., National Academy
Press, 1999), to assess their possible application to the state environmental
regulatory process. These recommendations include the following:
a) A coordinated effort among federal, state, and local public health agencies
is needed to improve the collection and coordination of environmental
health information and to better link it to specific populations and
communities of concern.
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b) Public health research related to environmental justice should engender
three principles: improve the science base, involve affected populations,
and communicate the findings to all stakeholders.
c) Environmental justice in general and specific environmental hazards in
particular should be the focus of educational efforts to improve the
understanding of these issues among community residents and health
professionals, including medical, nursing, and public health practitioners.
This would include the following:
• Enhancing health professionals' knowledge of environmental
health and justice issues;
• Increasing the number of health professionals specializing in
environmental and occupational medicine; and
• Improving the awareness and understanding of these issues by the
general public.
d) In instances in which the science is incomplete with respect to
environmental health and justice issues, policymakers are urged to use
caution on behalf of affected communities, particularly those that have the
least access to medical, political, and economic resources, taking
reasonable precautions to safeguard against or minimize adverse health
outcomes.
14. Explore ways to expand use of the Toxic Release Inventory and environmentally
related Internet sites as tools for greater public understanding of toxic chemicals
in the community.
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302
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APPENDIX M
Recommendations from the 1994 Public Hearings on Environmental Justice
Held Pursuant to Louisiana Legislative Act 767 (1993)
1) Consider legislation to codify Save Ourselves Inc. v. the Louisiana Environmental
Control Commission decision (452 So. 2d. 1152 (La. 1984)) (commonly referred to as the
/ T decision) and require that LDEQ establish a broad-based advisory committee to draft
regulations implementing the mandates of the decision, beginning with consideration of
criteria for siting facilities;
2) Consider legislation to strengthen land use planning requirements in the state, taking into
consideration Environmental Justice concerns;
3) Consider legislation to strengthen requirements on the transportation of toxic materials
through residential areas;
4) Consider legislation to provide tax incentives to reduce hazardous waste generation and
disposal in Louisiana;
5) Consider legislation to strengthen existing statutes related to emergency response in order
to more effectively meet community concerns;
6) Provide funding to the LDEQ to continue the Environmental Justice program and to
create a permanent position of Environmental Justice coordinator with adequate support
staff;
7) Provide funding for community/industry environmental justice panel program to allow
for expansion beyond the current limited areas;
8) Provide funding for a joint project between the LDEQ Environmental Justice Program
and the Louisiana Emergency Planning Committees (LEPC) to train local citizens in
emergency response;
9) Provide increased funding to Historically Black Colleges and Universities (HBCU) in the
state to support programs in environmental sciences and engineering in order to ensure
eligible minority candidates for positions at the LDEQ;
10) Have LDEQ report to the Legislature on modified public notification procedures and
public hearing activities;
11) Have LDEQ report to the Legislature annually on the status and progress of the
environmental justice program; and
12) Have LDEQ review enforcement alternatives to better serve highly industrialized areas
and report findings to the Legislature.
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304
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