EP 1110-1-24
15 Dec 00
property, with the intention to develop it inappropriately, the lending institution approached for
financing the project may have a greater incentive to ensure that the planned use is compatible.
(4) Proprietary controls require periodic site visits to assess whether the land use
restrictions are being obeyed. To increase the effectiveness of proprietary controls at OE sites, it
is necessary to agree at the time that the restriction is placed in the deed what third party, such as
a local government or state agency, is responsible for performing the site visits and enforcing the
institutional control. Again, the institutional control must be implemented in accordance with
the specific property laws of the state in which the site is located. Additionally, government
agencies and third parties must have an interest in and have the capability to monitor compliance
with the restriction. Finally, it should be ensured when implementing the institutional control
that all parties - USACE, local government, property owner, and property user - share the same
interpretation of the restrictions at the time the legal mechanism is imposed so that there are no
misunderstandings as to the development restrictions placed on the property.
b. Local Government Controls. Other types of legal institutional controls have evolved in
the U.S. legal system to be reserved for use strictly by local government authorities. Local
government controls provide potential avenues for the implementation of institutional controls at
sites that are contaminated with OE. In the context of environmentally-contaminated sites, this
group of land use controls is typically developed, implemented, and enforced through
cooperative agreements negotiated between Potentially Responsible Parties (PRPs) and local and
state government officials. The Federal Government (e.g., USEPA) has not historically asserted
its authority under CERCLA to enforce such land use controls once they have been established.
Controls on land use which local governments have the power to impose and enforce include
zoning restrictions, permitting programs, siting restrictions, and overlay zoning.
(1) Zoning Restrictions. The primary method of locally controlling land use is through the
development of zoning ordinances and community master plans. A typical zoning program
geographically divides an area into zones with different regulations written to apply to each
zone. The regulations vary between zones but apply equally to all properties within a zone.
Generic zoning categories include residential, commercial, and industrial. The zoning
restrictions that have been developed by the local zoning board are often posted in a master plan
which lays out the type of use that is allowed in a particular area. Unfortunately, in most states
master plans are not enforceable by law. Historically, the granting of variances to a local
government's master plan has sometimes resulted in inappropriate land uses with regards to
residual contamination on a site.
(2) Strengths and Limitations of Zoning Restrictions.
(a) Local zoning ordinances have the authority, based on state and local law, to restrict
land use. However, no other area of U.S. law experiences the exceptional frequency of requests
for amendments (e.g., rezoning) or revisions (e.g., variances and special exemptions) that is
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