An Introduction for Local Governments and Property Owners
This guidebook provides an overview of land use and regulatory guidance to help communities ease into the transition away from fossil fuel power plants. Property owners and local governments are encouraged to coordinate directly with state and federal agencies, who have considerable expertise in environmental, real estate and other regulations that may be required.
Land Use and Regulatory Considerations
Land use regulations can impact the power plant decommissioning process at any step in the process. The following factors and questions should be considered:
Site Control
Who will have control of the site during the redevelopment stage?
- It is important that the entity with site control is willing to participate
- Utilities and private owners can control the redevelopment timeline and overall reuse strategy, within community regulations and economic context
- Public agencies and municipalities have the opportunity to redevelop the site with a combination of both public and private partnerships and funding
Site Amenities
What amenities already exist on the site?
- Waterfront access and port facilities provide opportunities for recreation, transportation, and tourism, but may require additional resiliency planning
- Natural gas lines and transmission stations, which may or may not be able to be relocated.
- Infrastructure that can be used for potential clean energy
- Existing buildings
- Visual attractiveness
Economic Development
Are there opportunities to leverage the site for economic development?
- Expanding employment opportunities and strengthening the local workforce should be a priority
- Opportunities to generate the tax revenue lost from the retirement of a plant should be explored
Land
Are there are land use and/or zoning restrictions?
- Cost of cleanup vs. value of property after development – consider the cost of decommissioning, remediation, and redevelopment.
- Market for redevelopment uses that address community needs
Site Access
How accessible is the site by car, public transit, train, by water or on foot?
- Proximity to rail, ports, and major highways should be considered for future industrial development
- If the reuse allows for public access, assess if the site and surrounding neighborhoods can handle increased traffic
Historic Preservation
Does that site have any significant historical structures or sensitive areas?
- Any historical or archaeological structures/areas previously identified should be evaluated to determine any impact on future redevelopment of the site.
- Any property located within a local or National Historic District will have to follow state and national regulations.
Environmental Features
Does the site have any environmentally sensitive areas?
- The presence of wetlands and floodplains should be identified before moving forward with any reuse plans.
- Identify whether there any endangered species on or adjacent to the site?
Due Diligence
Due diligence of a site is an important step early in the transition process. Due diligence can be divided into two categories: environmental due diligence and real estate (property) due diligence. It is important to coordinate with the site owner or operator because due diligence may have already been completed in some cases.
Environmental Due Diligence
Environmental due diligence evaluates the environmental condition of the property. This process is necessary to meet requirements for all appropriate inquiries (AAI), as outlined in the Comprehensive Environmental Response, Compensation and Liability Act (also known as the federal Superfund law).
Who conducts environmental due diligence?
An environmental professional / firm can conduct an assessment (often known as a Phase 1 Environmental Site Assessment) to identify potential releases of hazardous substances and petroleum products at the property, as well as other environmental conditions, including mold, radon, and asbestos.
Real Estate Due Diligence
Real estate due diligence helps to identify characteristics of a property that could impact the ability to reuse or transfer the property to a new owner, like existing zoning laws, potential liens, building conditions, and encroachments.
Who conducts real estate due diligence?
Attorneys and real estate professionals can help assess property value(s), conduct title searches, and any other issues related to real estate. Engineers may be needed to evaluate buildings and other physical conditions potentially affecting reuse of the property.
Environmental Assessments
Environmental Site Assessments (ESAs) help identify and classify any probable or existent environmental contamination liabilities. They are often a required step to obtain funding and are frequently important pieces in real estate transactions. Stands are ESAs have been established by the American Society for Testing and Materials (ASTM) to address the to address the “All-Appropriate-Inquiry” (AAI) aspect to the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), a federal regulation and funding source for containing/removing environmental hazards.
A Phase 1 ESA typically involves a site inspection, review of records, interviews with current owners, occupants, neighbors and even government officials to determine if environmental contamination resulted from activities on or near the site. Sampling and laboratory analysis aren’t always included in a Phase 1 ESA. Phase 1 ESAs should be completed by an environmental official.
A Phase II ESA occurs when potential contamination is identified during a Phase I ESA. Phase II includes sampling and laboratory analysis to confirm the presence of the contaminants. Some of the tests that may be performed include testing of groundwater and well monitoring, surface soil and water, subsurface soil borings, underground storage tank testing, etc. A Phase II ESA will help guide any potential future remediation and cleanup.
Parcel Ownership and Transfer
Parcel ownership, transfer, and associated factors will vary largely from site to site. There may be scenarios where existing plant owners are interested in redeveloping / revitalizing the site, and others where the plant owners do not have such interest. Non-governmental property owners should connect with their local government to gain additional insight on any local and/or state regulations to be aware of regarding site reuse.
Parcel Boundaries
Identify the parcel boundary (or boundaries), parcel identification number, and/or parcel address, and any other information that may impact potential future reuse. If the site/property consists of multiple tax parcels, additional due diligence may need to be completed.
Be aware of any encumbrances on the property, which could impact future reuse. Encumbrances often include deed restrictions, liens, easements, etc., which can impact the ability to transfer title to the property or impact the ability to reuse a property for a desired purpose and can be found via a title search and land survey review (such as an ALTA survey).
Liens
A site may have liens associated with mortgage, tax delinquencies, and any state and/or federal environmental cleanup actions, which local governments or other future property owners may be subject to upon acquisition of the property.
Restrictive Covenants
Restrictive covenants are typically listed on the deed and can restrict use of the property. Restrictive covenants apply to current and future owners of the property. Land use controls like restrictive covenants are often put in place to minimize potential exposure to environmental/industrial contamination.
Easements
Easements are recorded on the deed of a property, which can impact future use. Easements often include:
- Access easements
- Conservation easements
- Utility easements such as sewer or water lines, telecommunications, and electricity
- Private use easements such has private driveways, private utility lines, or maintenance of any pipelines
Zoning, Policies, Relevant Plans, and Studies
Zoning and Policies
Zoning is a tool used by communities to regulate the use of land and buildings to protect the community and promote the quality of life within its boundaries. Zoning regulations and local policies and ordinances can have a major impact on future remediation and redevelopment of a property. Market studies should be conducted as a part of reuse analysis. This will help a community determine whether existing zoning laws are able to support future site redevelopment.
One important feature of most zoning laws that can be used to help facilitate reuse is the ability to “sub-divide” parcels. Sub-dividing allows property owners to divide large parcels into several smaller parcels, which can be sold to other developers to accelerate site reuse.
If local zoning laws don’t support proposed redevelopment plans, property owners and/or local governments can do one of three things:
- Request/Grant a zoning variance, which grants a parcel (or parcels) an exemption to zoning restrictions.
- Rezone the parcel(s) to modify the property’s categorization (such as from industrial to mixed-use), which must be granted by the local municipality and may involve a public hearing; or
- Challenge the zoning law if it feels discriminatory, illegal, or outdated. This is a time-consuming process – a legal expert should be consulted to see if this avenue is appropriate.
Local governments can also update existing zoning codes or adopt a new one, which is a longer process and may require the help of a consultant/ zoning expert.
Alternatives to Traditional Zoning
An alternative to traditional zoning is a form-based code. A form-based code is a land development regulation tool that focuses on physical form rather than separation of uses, formed in the late 21st century as an alternative to traditional Euclidean zoning codes. Form-based codes look at the form of a building and its relationship with the public realm.
A form-based code contains five main elements:
- a plan/map of the regulated area designating the locations where different building form standards apply
- building standards controlling the features and functions of buildings
- public realm specificities like sidewalks, on-street parking, street trees, etc.
- a clearly defined application & review process
- a glossary of terms
Similar to Euclidean zoning, form-based codes are meant to implement and protect the vision of a community while protecting quality of life and public health. A form-based code is essentially just a different legal tool to help implement a plan.
Overlay Zone
An overlay zone is a tool that applies zoning rules to a specified area(s) with already established zoning standards. The overlay applies in addition to the pre-existing zoning districts. Overlays are often used to protect special features or sensitive areas such as historic districts, flood zones, or wetlands. Overlay zones have also been used as a technique for specific development projects such as mixed-use projects, affordable housing, and waterfront developments. For example, Environmental Protection Overlay Districts (EPOD) can manage development in or near environmentally sensitive areas, such as groundwater recharge areas, special habitat, or floodplains.
Relevant Plans and Studies
Like zoning codes, past and existing plans and studies should be examined. This includes plans such as comprehensive plans, open space plans, climate action plans, active transportation plans, comprehensive economic development strategies, and any existing state-run initiatives such as Local Waterfront Revitalization Initiatives and Brownfield Opportunity Area programs. Existing plans and initiatives can help highlight any previously identified plans for the site, identify any policies that may impact future use, and determine if any future uses for the have already been identified. Federal and state agencies will typically look at these plans when determining funding or program participation.
Learn More About NYS Zoning 
Environmental Regulations
Federal and State agencies are a resource to property owners and can share knowledge related to environmental laws and other regulatory areas that need to be addressed.
Note: it is important to keep any regulatory pre-notification periods for various permit and license closures. These can vary from 10 days to up to 180 days, depending on the regulatory agency. These permits may include Title V air permits, hazardous waste storage, etc.
Floodplains
Properties in areas adjacent to a body of water may be prone to flooding during significant weather events and may lay within 100-year or 500-year flood zone areas. Properties should be assessed to determine if some or all the property is within a flood zone. Property owners should also consider potential impacts that climate change may have on the property and examine how those changes may impact the ability to safely remedy and reuse the site.
State and local building codes should be reviewed for regulatory requirements related to development in a flood plain. Federal, tribal, state, and local regulations could affect the ability to construct a structure or the design of the structure. The Federal Emergency Management Agency (FEMA) has a large collection of digitized flood hazard maps that can be referenced. If a community doesn’t have digitized maps, paper maps should be available for viewing at the local municipality office.
Learn More About FEMA Flood Maps
Wetlands
A wetland is a defined area where water covers the soil or is present either at or near the surface of the soil. Development in wetland areas may be limited by a few factors, including state or federal regulations, and/or conservation easements. Identification of wetlands should be included as a part of a Phase 1 Environmental Site Assessment.
Endangered Species or Protected Habitats
A site should be evaluated to confirm the presence of endangered species or protected habitats on the property. Any areas that have endangered species or protected habitats may need to be excluded from any future development. Endangered species or protected habitats should be identified as a part of a Phase 1 Environmental Site Assessment.
Brayton Point Case Study
In 2014, the town of Somerset, MA partnered with the Massachusetts Clean Energy Center (MassCEC) to identify, assess, and analyze potential reuses and redevelopment of the 234- acre Brayton Point (closed in 2017) Power Plant site, which opened in 1963 and employed 240 people when closure was announced.
Learn More
Additional Land Use and Regulatory Resources
- Key Pre-Demolition Consideration for Fossil Fuel Power Plants (POWER Mag, 2021)
- Zoning for Alternative Energy [PDF] (New York Planning Federation, 2015)
- Basic Information about Wetland Restoration and Protection (U.S. EPA, 2022)
- Climate Resilient Land Use Strategies: Regulatory Language and Policy Examples (Metropolitan Area Planning Council)
- Legislative and Regulatory Timeline for Fossil Fuel Combustion Wastes (U.S. EPA)
- Business Models for Coal Plant Decommissioning [PDF] (Pacific Northwest National Laboratory, 2021)