Wild law

The people and officials of the Town of Bethel have labored diligently for some years now to create a comprehensive plan and zoning ordinances that strike a balance between the preservation of rural character and the environment on the one hand, and the encouragement of economic growth on the other. Much of this debate has been framed in terms of whether there should be a one-acre or a five-acre minimum for subdivisions of undeveloped land.

The dispute over the 200 or so acres of the erstwhile Smallwood Golf Course have provided the latest testing ground for this conflict, with the developer arguing that larger lots increase impermeable surfaces and fragment habitat, and the Preserve Smallwood Country Life organization arguing that five-acre lots would better preserve the environment.

It’s not clear how a smaller number of five-acre lots provides more habitat fragmentation than a larger number of one-acre ones. The point about impermeable surfaces, on the other hand, may be worth considering. But the main thing that struck us in reading about this dispute is the fact that framing the issue in terms of lot size is simply not adequate to achieve the result that both sides were willing to stipulate as desirable, namely, the preservation of the ecosystem.

There is no lot size that is, by itself, sufficient to safeguard the health and purity of the watershed or the preservation of habitat. Twenty-acre lots could be terribly destructive if they were host to sprawling, energy-inefficient McMansions with extensive driveways and garages and vast lawns replacing natural vegetation. Smaller lots could be comparatively benevolent with limits on tree-cutting, lawn size and pavement and a required minimum of preserved natural vegetation. And even a McMansion, if it had a green roof that bore native vegetation rather than cultivated plants, might be more environmentally hospitable than a much smaller house with a traditional roof.

In short, all of us who are wrestling with the issue of reforming our zoning to create smart, sustainable, ecologically sound growth, may need to expand the categories we use to think about—and write—zoning laws. There are precedents for such thinking, in cities that require the planting of trees along with the construction of buildings, for instance, or provisions like those now current in some sections of the river valley that prohibit clear-cutting or the cutting of trees over a certain diameter.

An even more fundamental departure from the usual ways of thinking about land-use ordinances and the environment is suggested in the work of Thomas Linzey, a Pennsylvania lawyer and founder of the Community Environmental Legal Defense Fund (CELDF), who has been beating the drum for what he calls “wild law.” Linzey has been pushing for the idea that nature and the ecosystem themselves should be considered to have rights, and that individual citizens and municipalities ought to have standing to fight for those rights in court. He has been instrumental in a number of municipalities actually adopting such principles, including Tamaqua, a borough in Pennsylvania, that became the first U.S. municipality to recognize the rights of nature and, on that basis, pass an ordinance prohibiting corporations from applying sewage sludge within its borders.

Opponents would no doubt complain that giving the ecosystem rights takes them away from the individual property owner. The problem is that the health of the ecosystem is a good that is shared by all and on which all depend for health, life and livelihood. And because the ecosystem is intricately interconnected, those who believe property rights include the right to destroy the ecosystem on one piece of land must accept the consequence that the property owner in question also has the right to destroy the health, life and livelihood of other individuals. There is nothing democratic, or moral, about that.

A switch in law as radical as the establishment of rights for nature is probably not coming to Bethel any time soon. But it still might behoove not only the people of Bethel, but all of us in this area, to try that perspective as a thought experiment, and see what types of zoning categories it might offer us that are different, and more effective, than the old straight-jackets like lot size. That, in turn, might open up the possibility for compromise zoning options that could come closer to keeping both developers and environmentalists happy than the five-acre/one-acre either/or.

Also in this issue:

• Current highway superintendent supports DPW

Dr. Punnybone

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