A greenway setback of 100 feet or not more than 20 percent of any
Courts have upheld city regulations that require owners to dedicate private land for trails
property should be enforced through Philadelphia’s zoning code.
and greenways. However, cities may not impose a mandatory requirement for public or city
To preserve a greenway at the water’s edge, an immediate zoning overlay is
access to that land or remove all or nearly all economically beneficial uses of the land. The
needed that will limit development within 100 feet of the water’s edge. The
courts have repeatedly upheld the legality of zoning ordinances that require public trails
ordinance should anticipate that some properties will not be able to reserve
or greenways because they provide compelling public-safety, welfare and environmental
100 feet across their entire parcel and should allow greenway averaging that
benefits to the community that justify partial restrictions on land use.70 In October 2006,
permits the greenway to become narrower at some points along the river, as
the New Jersey Supreme Court upheld New Jersey’s 300-foot greenway requirement.71
long as the average width of the greenway meets the minimum requirement.
To avoid a legal challenge, a zoning requirement that requires owners to provide land
For some properties, 100 feet may restrict development on an unreasonable
along the water’s edge in exchange for needed city permits should do the following:
percentage of the total land. To ensure that the greenway requirement does not take value from properties unreasonably, no more than 20 percent of any one parcel should be deemed unbuildable under the combined greenway and trail requirement. Parks and other green spaces will be recognized as parts of the greenway system in order to achieve an average width of 100 feet while allowing for the greenway’s narrowing at some points along the river.69
• Allow the public on private land through a voluntary agreement rather than by
regulation. A city cannot regulate the right of the public to trespass on private land. The city or the state can require public access in return for a zoning or building permit or the granting of a lease over riparian land. In the case of a donation or the purchase of a conservation easement as a legal right-of-way, a companion agreement should provide for public access. • Include flexible provisions to ensure that the agreement does not regulate such a large
percentage of the parcel as to remove its economic value. This action plan recommends a limit of 20 percent on the affected amount of the parcel. • Enforce the greenway requirement only with zoning-permit applicants seeking to build
new construction or to change uses. The law is clear that if the city simply required owners to dedicate a strip of land along the river for a trail, rather than requiring it in exchange for a zoning permit, a taking would be considered to have occurred. • Permit a variance or waiver from requirements in the case
of economic hardship or unique circumstances. • Define an appeals process for circumstances in which a variance is denied.
The greenway in Saint Paul, MN (shown at left), protects the edge of the Mississippi River and increases property value for nearby residents.
Action Plan for the Central Delaware 45