Environmental Resilience: The Legal and Policy LandscapePanel: Resilience, Local Planning, Infrastructure and the Law

Sustainable Cities in a Changing ClimatePhilippa M. Guthrie, Corporation Counsel

City of Bloomington, INMarch 22, 2019

I. Introduction

According to research from Purdue University, the state of Indiana is expected to have an increased number of hot days, more heavy rain events, increased flooding, and wetter winters as a result of climate change. These impacts are expected to have detrimental effects on human health, including increased incidences of heat stroke due to higher temperatures, respiratory illnesses due to poorer air quality, and an increased number of ticks and mosquitoes carrying vector-borne illnesses due to warmer and wetter winters.

--City of Bloomington 2018 Sustainability Action Plan, Chapter I, October 31, 2018.

II. Sustainability Model in Bloomington

A. Sustainability Organizational Structure.

Bloomington’s sustainability efforts are like a bicycle wheel. At the Center of the wheel is the Assistant Director of Sustainability, who resides in the Department of Economic and Sustainable Development. The spokes of the sustainability wheel run to and through practically every department, but the major collaborative partners are the Office of the Mayor, City of Bloomington Utilities (“Utilities”), Planning and Transportation (“Planning”), Public Works, and Parks and Recreation (“Parks”). All of these departments were established by prescription of state law and/or by ordinance in the Bloomington Municipal Code (“BMC”).

In addition, the City has some forty-three different boards and commissions that help it do its work. Some of these boards and commissions are required by state law and the City may not take certain actions without their approval or official delegation (e.g. Public Safety Commission, Plan Commission, Redevelopment Commission). Others were created via ordinance by the Bloomington Common Council and are advisory (Bloomington Environmental Commission, Bloomington Commission on Aging, Traffic Commission). And some are hybrid, i.e. authorized by state law but not required (e.g. Bloomington Human Rights Commission). Four of these boards and commissions are dedicated either entirely or partially to environmental and sustainability issues (Bike and Pedestrian Safety Commission, Environmental Commission, Commission on Sustainability, Tree Commission), but significant environmental and sustainability issues are regularly addressed by many others of our boards and commissions (e.g. Plan Commission, Utilities Services Board, Parking Commission). B. The City of Bloomington Commission on Sustainability (“BCOS”).

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The primary entity assisting the City in addressing climate change is the Bloomington Commission on Sustainability. The BCOS was established by the Bloomington Common Council in 2005. BMC Chapter 2.12.100

BMC 2.12.100(1) state’s the City’s policy in establishing the BCOS and the BCOS’s purpose as follows:

Public Policy and Purpose. A sustainable community seeks to enhance the socio-environmental-economic well-being of the community while taking precautions not to compromise the quality of life of future generations. Toward that end, it reduces its use of nonrenewable natural resources and its production of wastes, while at the same time improving livability. The mission of the Bloomington Commission on Sustainability is to promote sustainable socio-environmental-economic well-being of Bloomington and all its inhabitants.

The BCOS itself then adopted this mission statement: The City of Bloomington Commission on Sustainability (BCOS) promotes economic development, environmental health, and social equity in our community for present and future generations. The commission gathers and disseminates information; promotes practical initiatives; and measures, monitors, and reports on our community's progress toward sustainability.https://bloomington.in.gov/boards/sustainability

C. Development of a Sustainability Action Plan (“SAP”).

In 2018, the City engaged a consultant, Gnarly Tree Sustainability Institute, to assist it in developing the City’s first plan containing specific goals and timelines for a more sustainable future. The very first chapter of the SAP focuses on “Climate Change and Adaptation,” signaling the importance that the City places on the immediacy and urgency of efforts to address climate change. The SAP was adopted by the Bloomington Common Council on October 31, 2018.

https://bloomington.in.gov/sustainability/action-plan

III. Required Policy Steps for Addressing Climate Change

A. Mitigation Plan The City of Bloomington’s “Mitigation Plan” is not a discrete document, but rather a

set of goals set forth in the Sustainability Action Plan that are designed to reduce greenhouse gas emissions and mitigate the effects of climate change. We have already identified some key actions to reduce admissions, as indicated in the table below. Additional objectives and tasks that will lead us to achieve these goals will be developed as required by our Assistant Director of Sustainability in the Economic and Sustainable Development Department. The goals chart is below.

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B. Vulnerability Assessment

The City’s Department of Economic and Sustainable Development is currently embarking on a vulnerability assessment, with a goal of completion by 2020. We will be issuing an RFP soon and actually hope to compete the assessment this year, ahead of the planned schedule. Many other City departments will be involved in this

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process, most notably City of Bloomington Utilities (“Utilities”), as water resources and management will be significantly affected by climate change.

C. Adaptation Plan The Sustainability Action Plan contains a goal for the City to develop an Adaptation

Plan over the next five years, with completion by the end of 2022. The climate adaptation plan should propose data-driven actions and strategies to moderate harm from expected climate change impacts (i.e. how do we ensure that our community is resilient in the face of climate change impacts that are coming). We hope this plan will be multi-jurisdictional and are working towards that goal, and it will be coordinated with Utilities, as the most significant effect of climate change on Bloomington is likely to be increased precipitation and associated consequences, including flooding and stormwater management. Utilities has already completed a comprehensive flood mapping exercise of the area it services and beyond.

IV. Focus and Programs

Cities of all sizes have a real opportunity to make an impact on the course of climate change by adjusting their approaches to the built environment, transportation, and waste management.

A. The Built Environment.

Development codes to guide a cities built environment begin with a Comprehensive Plan (“Comp Plan”). Plan Commissions in Indiana are required to develop comprehensive plans for their jurisdictions under I.C. 36-7-4-501-503. Section 501 provides:

A comprehensive plan shall be approved by resolution in accordance with the 500 series for the promotion of public health, safety, morals, convenience, order, or the general welfare and for the sake of efficiency and economy in the process of development.  The plan commission shall prepare the comprehensive plan.

Section 502 then provides:

A comprehensive plan must contain at least the following elements:(1) A statement of objectives for the future development of the jurisdiction.(2) A statement of policy for the land use development of the jurisdiction.(3) A statement of policy for the development of public ways, public places, public lands, public structures, and public utilities.

The Bloomington Comp Plan was first adopted in 1991, updated in 2002, and most recently again in 2018. It is the city’s long range plan for land use and development and contains goals, policies, maps, illustrations, and implementation strategies for how the City of Bloomington addresses development physically, socially, and economically. It can be reviewed here: https://bloomington.in.gov/sites/default/files/2018-04/Final%20Council%20Amended%20CMP%20%20Web%202.pdf

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The Comp Plan serves as the basis for a city’s zoning code, providing the overall direction to the city administration and council on what zoning measures are desirable and permissible. For example, if the Comp Plan expresses that a City would like to encourage compact urban form, zoning measures can and should be enacted to foster those goals. Height and density standards might be increased in a downtown or otherwise fairly urbanized area, encouraging developers to propose multi-family projects in those areas rather than in less developed areas where they might not get as large a building and therefore as much return on their project.

Bloomington completed a year-long update process of its Comp Plan and it was approved by the Bloomington Common Council on January 17, 2018. Almost immediately thereafter, the City engaged the services of a consultant to assist it in a comprehensive overhaul of the municipal zoning code, the “Uniform Development Ordinance” or UDO. The City is presenting a second round draft of the UDO at public meetings in late March.

In the City of Bloomington, and likely other communities, incentive based changes seem to work better than regulation to modify behavior. Thus, rather than mandating certain approaches, municipalities can build incentives into their development ordinances that encourage green building in exchange for things such as density or height bonuses. So, for example, the current draft of the updated UDO contains the following provisions encouraging sustainability: (b) Sustainable Development (1) PurposeThe comprehensive plan recognizes sustainability as a key component of nurturing Bloomington's environmental integrity. The following incentives are intended to encourage the use of sustainable development practices in Bloomington. (2) ApplicabilityThis sustainable development incentives section applies to all zoning districts, except for projects that meet the definition for “student housing or dormitory.” (3) Administration (A) An application for these sustainable development incentives shall be included with an application for preliminary plat or site plan approval. (B) The final approval authority shall determine if the project satisfies the criteria established in this section based on factors relevant to the individual project and the surrounding area.(C) Where the final approval authority determines that the project satisfies the criteria of this Section 20.04.0110(b), the final approval authority may authorize the modifications to development standards as established in this Section 20.04.0110(b).(4) LEED Rating SystemThe qualification criteria established in Table 4-21: Sustainable Development Incentive Qualification Criteria shall be determined using the U.S. Green Building Council (USGBC) Leadership in Energy and Environmental Design (LEED) v4 rating system. (5) Requirements to Qualify for Incentives

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Any project seeking sustainable development incentives shall satisfy one of the following three Levels established in Table 4-21: Sustainable Development Incentive Qualification Criteria:

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To understand the significance of these incentives, the table below shows the allowed maximum densities and heights in the various zoning districts without the incentives.

Zoning District Maximum Density Maximum HeightRM(1) 7 40 (+5)RH(1) 15 55 (+12)

MM, MC 15 50 (+12)ME 15 60 (+12)

MD-CS 20 Same as w/incentiveMD-UV, MD-DG 20 35 (Restaurant Row) (+17)

40 (Genl/Kirkwood) (+12)MD-DE 15 40 (+7)MD-ST 15 45 (+12)MD-DC 30 50 (+12)

District Codes: RM=Residential Multi-Family; RH=Residential High-Density Multi-Family; MM=Mixed Use Medium Scale; MC=Mixed Use Corridor; ME=Mixed Use Employment; MD-CS=Mixed Use Downtown-Courthouse Square; MD-UV=Medical-

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University Village; MD-DG=Medical-Downtown Gateway; MD-DE=Medical- Downtown Edges; MD-ST=Medical-Showers Technology Park; MD-DC= Medical-Downtown Core

Zoning codes also offer other opportunities for addressing the effects of climate change, including requirements for planting trees, restrictions on building in or near flood plains, pervious pavement, and parking strategies (e.g. reducing parking space requirements to encourage walking and public transit). It is up to a municipality to choose the particular strategy for incorporating such things into their zoning codes.

B. Transportation.

Bloomington’s 2018 Comp Plan incorporated one of a series of Vision Statements that had been adopted by the Bloomington Common Council in 2013. Statement 13 stated: “Provide a safe, efficient, accessible and connected transportation system that emphasizes public transit, walking and biking to enhance options to reduce our overall dependence on the automobile.” This statement became the guiding principle for Chapter 6 of the Plan, entitled “Transportation.”

This goal was not a new one. In the decades prior to the 2018 Plan, Bloomington worked consistently to provide varied transportation options for its residents and visitors. As a result, the Bloomington Transit bus system offers passengers the ability to reach most parts of the community via public transportation. (See BT System Map: https://bloomingtontransit.com/wp-content/uploads/2018/12/SystemMap2018.pdf. The City has a well-developed network of multi-use trails, soon to be enhanced by the passage of a recent bond issue earmarked for expanding the trail connections to increase their usefulness as regular transportation modes. https://bloomington.in.gov/parks/trails In December 2018, the League of American Bicyclists recognized Bloomington with a Gold Level Bicycle Friendly Community (BFC) award. Of sixty-one such communities around the country, Bloomington was one of only five to earn the Gold Level award.

In January 2018, the City also began working with a consulting firm to develop a multi-modal transportation plan. This is a plan focused on the City’s approach to managing land use and developing its infrastructure to support the transportation goals of the 2018 Comp Plan. For example, the transportation plan will help the City prioritize transportation projects, determine right-of-way widths, and facilitate structural changes that increase multi-modal options. The draft transportation plan was approved by the Bloomington Plan Commission in November 2018, and is expected to be presented to the Common Council in early 2019. The draft plan can be accessed here: https://bloomington.in.gov/transportation/plan

Finally, like most cities of its size in the US, Bloomington is looking toward the future from a past and present that have been largely focused on the automobile. For many Bloomingtonians, the automobile remains the preferred mode of transportation and it will remain so for years to come. The City consequently has a responsibility to provide parking and infrastructure for the driving public that is safe, well-maintained, and

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adequate to serve the public’s needs, taking care to ensure that these assets can evolve as the needs change. In support of those ends, over the last 24 months, the City established a Parking Commission, which engaged a parking consultant to study downtown parking needs and utilization. Based on the findings in the consultants’ study, in September 2018 the Common Council adopted amendments to the City’s existing parking ordinance. Information on the Parking Commission’s work, the consultant’s report and the ordinance amendments are here: https://bloomington.in.gov/transportation/parking/study

The next step for the City to more fully realize a multi-modal future is to develop a Transportation Demand Management (“TDM”) Plan. What is TDM?

At its most basic level, TDM is a program of information, encouragement and incentives provided by local or regional organizations to help people know about and use all their transportation options to optimize all modes in the system – and to counterbalance the incentives to drive that are so prevalent in subsidies of parking and roads. These are both traditional and innovative technology-based services to help people use transit, ridesharing, walking, biking, and telework.” (“What is TDM,” MobilityLab.org, October 1, 2013)

The City issued an RFQ for a TDM consultant in February and hopes to have a consultant on board and a final report by mid-summer.

C. Waste Management.

Cities can adopt waste management strategies and policies that aim to reduce what goes into our landfills and produces gases like methane that contribute to warming the climate. Bloomington is looking at several strategies in this area.

1. Curbside Composting

The City agreed to undertake a curbside composting pilot using the services of a local startup company called Green Camino Curbside Composting. Green Camino was established in late 2017 as a pilot by the company’s founders to see if curbside residential and commercial composting could be successful. The company’s website describes the services and the reason Green Camino was established as follows:

Green Camino collection services provide a convenient way for you to divert organic resources from the landfill, reduce emissions, enrich the soil, and protect the climate.

…On average, Americans throw out 20 pounds of food per person every month, the equivalent of $165 billion annually. Here in Bloomington, a recent waste composition study found that nearly half of our residential waste is potentially compostable—including a whopping 26.5 percent food waste. That food waste gets trucked more than 50 miles to the landfill in Terra Haute. We burn fossil

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fuels to produce and ship food products and then turn around and burn more to collect and dispose of them.

Once buried in landfills, food waste produces 18 percent of our country’s methane, a greenhouse gas (GHG) with more than 25 times the global warming potential of carbon dioxide. If food waste were a country, it would rank third after the U.S. and China for GHG emissions, according to a United Nations report.

Green Camino drops off a weekly bucket for customers at the end of their driveways, or to a commercial location, and switches it out a week later for a new, clean bucket. The compostables collected are accepted by a local commercial composting facility, Green Earth, and/or a local farming operation, that composts them.

The City of Bloomington Board of Public Works granted Green Camino an exception to a BMC ordinance provision which mandates that the City is the only permissible provider of waste collection to its residents. The granted exception allows Green Camino to operate a two-year pilot in which the company and city will monitor progress and success. The City signed on as a customer, placing compost buckets in all of its facility kitchens at City Hall.

Green Camino has been operating for approximately a year, has achieved 2,240 subscribed customers, and has diverted 39,517 pounds of food waste from landfills.

The City also granted an exception from the sanitation ordinance to JB Salvage. This company has focused on commercial food waste, forging a partnership with IU Athletics and Green Earth in 2015 to begin collecting food waste at IU football games. During the 2015 football season, 14,010 pounds of food waste and related compostables was diverted from landfills. IU now includes all IU dining facilities and athletics food service locations, and estimated it would collect 10-12 tons of organics per week in Fall 2018. JB Salvage is the sole hauler and the waste is composted by Green Earth and by IU’s Hilltop Gardens.

2. Anaerobic Digestion.

At his State of the City address on February 21, 2019, Bloomington’s Mayor, John Hamilton announced the formation of a local task force to evaluate whether and how the City might convert its wastewater plant to an anaerobic digestion process. Anaerobic digestion is a biological process that degrades organic matter to produce biogas (primarily methane and carbon dioxide), which is a renewable energy source, and a digestate sludge that can be used as fertilizer. Thus, the City could turn local compostable organic material into compressed natural gas, reducing contributions to landfills and methane release, and creating a local fuel source to power the City’s public vehicles. The Mayor request a report in one year.

The EPA provides a brief primer on anaerobic digestion here: https://www.epa.gov/anaerobic-digestion/basic-information-about-anaerobic-digestion-ad

Michigan State University operates an anaerobic digester that it maintains will offset the electrical energy needs of its Dairy Teaching and Research Center (300 kw/hour) and will

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still have sufficient energy left to “power MSU.” See link: https://www.youtube.com/watch?v=aULRryCVMyY

D. Other Programs.

Bloomington has undertaken other efforts to mitigate the effects of climate change. A few examples are briefly described below.

1. Solarize Bloomington

In January of 2017, the City launched an effort to diversify the energy supply at its own facilities and invited city and county residents to do the same with a group-buy discount through the non-profit Solarize Bloomington Initiative. To date, 184 homeowners have installed over 1.2 MW of solar capacity through the program. Here is a map of all known solar installations in Monroe County and beyond: https://www.sirensolar.org/solar-map/. 

The City has also installed solar PV systems at 30 locations, estimated to provide 2.8 MW of solar capacity for municipal operations. You can view a map and details of all City solar installations on the City B Clear Data Portal.  

The City financed the Solarize Bloomington program through a combination of TIF funds and a Guaranteed Energy Savings Contract (“GESC”). The Indiana Office of Energy Development web page at https://www.in.gov/oed/2638.htm provides the following information on GESCs:

GESC Background

A Guaranteed Energy Savings Contract (GESC) is an agreement between a qualified provider and a building owner to reduce the energy and operating costs of a building, or a group of buildings, by a specified amount. Indiana Code 36-1-12.5 stipulates which governing bodies are able to enter into a Guaranteed Energy Savings Contract. This list is exclusive to what is defined by IC 36-1-12.5: schools, libraries, municipal water or wastewater utilities operated by a political subdivision, and other governing bodies…. The main advantage of these agreements is that the building owner can participate in the project without a large upfront investment of capital. The savings are used to pay for the investment over a period not to exceed the lesser of 20 years or the payback period of the project. If the guaranteed savings are not achieved, the provider must reimburse the building owner for the difference between the guaranteed and cost savings.

The program is overseen by the Department of Local Government Finance (DLGF) and there is more information on the GESC webpage at the Department of Local Government Finance's website.

Indiana Solar for All (ISFA) is an additional local initiative of the nonprofit Center for Sustainable Living. ISFA worked with the City’s Solarize Bloomington campaign in 2018 to

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make grants to eight area homeowners with fixed or limited incomes to install rooftop solar systems. For more information, visit ISFA. 

2. Showers Building LEED Certification

The Showers Building, which houses the Bloomington City Hall, Monroe County offices, and CFC, Inc., is a renovated and re-purposed furniture factory originally built in 1910. The factory closed in 1959 and the building was sold to IU, which used it for storage until 1994. In 1995, renovations were completed. The building achieved the first level of LEED green building certification in 2012, and increased it to LEED Gold certification in 2018. City Hall received a Performance Score of 60/100 based on actual metrics in five key categories: energy, water, waste, transportation and human comfort.

3. Transportation Alternatives

a. Bloomington Transit

Bloomington Transit, which provides the City’s bus service, has a current fleet of 80 percent diesel vehicles and 20 percent hybrid vehicles. Bloomington Transit is now evaluating the long-term ecological and economic impacts of electric vehicles in its fleet. According to government data, battery electric buses produce zero tailpipe emissions. In addition, they offer significant savings in fuel costs, lower price volatility than other fuels, quieter operation and lower maintenance costs than their diesel counterparts, and have 30 percent fewer parts than a conventional bus.

Late last August, Bloomington Transit had an electric bus company conduct a one-day pilot in which community members and visitors took a free ride on a Proterra Catalyst battery electric bus. The Proterra model is in use in transit systems in Madison, Wis., Des Moines, Iowa, Duluth, Minn., Louisville, Ky., Lexington, Ky., and Nashville, Tenn. The Transit Board continues to evaluate the option, and Transit requested, and the Common Council approved, an allocation of funds in Transit’s 2019 budget for the purchase of an electric bus. Those budget funds would be combined with federal funds to cover the full cost.

b. Bike Share

The City of Bloomington and Indiana University partnered in 2018 to launch a dockless bike share service, contracting with bike share company Zagster, to bring a fleet of smart “Pace”

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bikes to Bloomington beginning in June 2018. The contract specified that the City would allow Zagster the exclusive right to park shared bikes in the City’s rights of way at specified locations.

In this system, bicycles are positioned around the city at dedicated bicycle parking racks, public bicycle racks, and other bicycle securing locations throughout the city and on campus. About a dozen dedicated Pace racks were installed across the city. To locate a bicycle, users consult the Pace Bike Share app, which is also used to pay for and unlock the bicycles. Rides cost $1.00 per half hour, with monthly subscriptions available offering unlimited 60-minute trips.  With an initial base of 150 bicycles, the fleet is intended to scale up over time to match rider demand. 

c. Scooters

In September 2018, scooter operators Lime and Bird arrived without prior notice in Bloomington. Scooters can be a nuisance, blocking rights of way and handicapped access, and blowing past startled pedestrians and drivers who are worried about hitting them (and occasionally have). However, they are a green alternative for short trips (a “last mile” solution) that might otherwise involve fossil fuel vehicles. This is especially true in a community like Bloomington, where thousands of students live, most with cars. Students are the biggest users of the scooters. The City administration decided to take a measured approach before jumping in to regulate (despite requests from some quarters to do something immediately!). By late October it was clear that there were a few issues that needed addressing. The City first developed and signed a contract with both Lime and Bird that required the companies, among other things, to share data on usage with the City and provide education and information to their riders on proper riding and parking.

In addition, the City produced scooter guidelines that included such things as:

Scooters may be used in the street. Riders using scooters in the street must obey the rules of the road…

Park the scooter in a bike rack or in another lawful spot on public property that does not block the right-of-way, limit access for individuals with disabilities, risk damaging private or public property, or jeopardize public safety.

The full text of the guidelines can be found here: https://bloomington.in.gov/transportation/scooters

These guidelines do not have the force of law, but were intended as an interim step, along with the operator contracts, to minimize negative impacts of scooters until the Common Council could consider an ordinance. The City’s legal department is currently refining a draft ordinance for the Council’s consideration.

d. Tree Planting

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The City of Bloomington recently hired a consultant to conduct a comprehensive evaluation of nearly 18,000 publicly owned trees and public planting locations. Tree data collected will allow staff to update the five-year Bloomington Urban Forestry Plan with prioritized tree planting needs, and to identify trees that pose a risk to people or property.

This inventory will also help the City prepare for a dedicated tree canopy replenishment effort being funded by a recent bond issue approved by the Common Council, the Bicentennial Trees and Trails bond, which allocated $800,000 to the planting of trees. The consultants will also take a broad look at all of Bloomington's trees. A healthy urban forest helps with energy conservation due to shade and windbreak, absorbs air pollution, and reduces stormwater runoff.

e. Miller Showers Park Stormwater Facility

Miller Showers Park is essentially a very large median strip at a major north entry point to Bloomington that was purchased by the city in 1929 for $1. For most of its history, the Park was a perpetually flooded and little-used strip of land. Then in 2001 to 2004, the Park underwent a significant facelift that transformed it into a state-of-the-art stormwater retention and water treatment facility that also provides a welcoming gateway to the city. The 8-acre park's large holding ponds retain about 1.2 million gallons of stormwater that drains from more than 170 acres of downtown Bloomington. A .6 mile accessible, multi-use trail circles the park and there are also a viewing pier, pedestrian bridge, and interpretive signage. One of the major purposes of the reconstruction was to slow the stormwater entering the park and the surrounding area so that “gully washers” no longer scoured Cascades Creek north of the park. In addition, it was designed to exhibit the natural stormwater treatment process, with a system of wetland basins and weirs that follow the path of an existing stream. Not only has stormwater been effectively managed, but the landscape elements effectively capture the runoff, filter it, and leave it 80 percent cleaner than when it enters the park.

Before After

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