Why aren't streams included in zoning?

by Ann

Visitor Question: Where are streams and creeks in the zoning guidelines?

Editors' Reply: That's an excellent question, and the main reason seems to be tradition. Zoning practice often includes a considerable amount of copying from other jurisdictions, adjusting for the philosophy of the city or town doing the zoning.

While we haven't seen a creek zoned "Water Body," for instance, there's nothing to say that it couldn't be.

Such a zoning classification probably wouldn't make much sense, though, since almost every state has some sort of regulation against using a water body, even if it's dry most of the time, as a building site.

Zoning traditionally and typically is enforced at the time when someone wants to build something new.

In addition, almost every state plus many counties and cities have some separate regulations that pertain to what can and can't be done within a "buffer zone" next to a creek, stream, or river. Usually that buffer is expressed in number of feet from a stream bank or other legally defensible marker.

The existence of these separate rules for water courses and also buffer zones probably is why zoning usually doesn't touch them.

Many progressive places do have a zoning classification entitled something like "Environmentally Sensitive Lands," and that classification could be used to establish a stream buffer if a municipality wanted to do that.

One of the difficulties with regulating streams through zoning is that courts generally have held that a zoning ordinance cannot rule out all economically productive use of land. Zoning can severely restrict development, for example saying that no more than one home per acre can be developed, but when you take away all economic use of the land, that's usually said to be a "taking," for which the government has to compensate the land owner.

If a city were to apply zoning to a stream, it would have to prohibit all economic use of the land to be logical at all. (Yes, some of you would say that we could and should quantify the economic value of "environmental services," but we're using the ordinary meaning ascribed to economic use of land.)

We have to conclude that zoning streams just isn't done, and that in the final analysis, that's probably a good thing. Land use regulations, including zoning, that prohibit all economic use of land just won't fly legally. Some of you would point out that it is silly to talk about water as land too. This topic really gives us plenty of grief with language, doesn't it?

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