TESTIMONY OF
MS. ELIZABETH HUMSTONE
EXECUTIVE DIRECTOR
VERMONT FORUM ON
SPRAWL
VICE CHAIR
CITY OF BURLINGTON
VERMONT PLANNING COMMISSION
On behalf of
THE AMERICAN PLANNING ASSOCIATION
Before the
SENATE COMMITTEE ON ENVIRONMENT AND
PUBLIC WORKS
On
IMPROVING ENVIRONMENTAL POLICY
THROUGH LAND USE PLANNING AND PROVIDING ASSISTANCE TO COMMUNITIES TO AID IN THE
REDEVELOPMENT OF BROWNFIELD SITES
(S. 975, S. 1079)
March 6, 2002
Good morning Chairman Jeffords, Ranking Member Smith, and
members of the committee, I am Elizabeth Humstone, Executive Director of the
Vermont Forum on Sprawl and Vice Chair of the Burlington, Vermont Planning
Commission. I appear today both as a
Vermonter and on behalf of the American Planning Association.
The American Planning Association represents 32,000
professional planners, planning commissioners, and citizen activists interested
in shaping the vision for the future of their communities. APA’s members are involved in formulating
planning policies and land-use provisions at all levels of government. APA has a long history of promoting public
policies to improve quality of life in the nation’s communities and
neighborhoods through better planning.
APA has long promoted smart growth and believes strongly
that good planning is essential to achieving it. We are here this morning to
offer our vision for smart growth and support for the legislation under
consideration by the committee, the Community Character Act and the Brownfields
Site Redevelopment Assistance Act.
As one engaged daily in the struggle to achieve growth that
is consistent with Vermont values of environmental quality, rural working
landscape, healthy town centers and community values of sharing, access and
equity. My organization, the Vermont
Forum on Sprawl, works to assist citizens and communities throughout the state
in achieving compact settlement surrounded by rural landscape while encouraging
community and economic development consistent with this vision.
We are not alone in this quest. In Vermont, ten non profit organizations, including affordable
housing, social equity, planning, historic preservation and environmental
groups, have embraced a common set of smart growth principles and banded
together to work cooperatively on these issues. The Forum also is part of the national Growth Management
Leadership Alliance, a collection of grassroots organizations promoting smart
growth in states and communities.
My work as Vice Chair of Burlington’s Planning Commission
and nearly 30 years of experience working with communities on land use issues
means that I know first hand how planning informs development patterns, the
challenges that communities face in achieving development that builds value
while promoting high quality of life, and the importance of local land use
authority as an instrument to reflect the vision of local citizens. However, I have also developed a keen
understanding of the absolutely vital role that the state and federal
governments play in the development process.
I applaud you Mr. Chairman, Ranking Member Smith and members
of the committee for demonstrating the vision and leadership to hold this
hearing, which is, I believe, the first time a congressional committee has
specifically examined the issue of smart growth. I would also like to thank Senator Chafee for his strong efforts
in introducing and supporting the subject of today’s hearing, the Community
Character Act. My home region is
certainly well represented today.
Americans are increasingly aware and concerned about unplanned
growth and its byproducts—loss of open space, congestion, limited housing
options, decline of neighborhoods, empty strip development, and loss of
ecological biodiversity—as clearly indicated by surveys and the passage of
numerous local ballot initiatives to address these issues. This hearing is an important step in
advancing the public discussion about how the federal government can
appropriately and effectively support state and local smart growth activities that
seek to address these problems.
Importance of Smart Growth
Smart growth refers to a citizen-led movement taking root
across the nation as citizens seek ways of reversing decades of policies that
have led to what’s commonly referred to as sprawl. Sprawl is the all-too-familiar pattern of strip development and
spread-out, auto-dependent, low-density development in the countryside that
leads to a gradual decline in community life and values, and the erosion of the
economic base in cities and towns.
Smart growth, by contrast, is a set of public policies
designed not to stifle growth, as some critics would have it, but to promote
development in ways that create communities of balance, consumer choice, and
lasting value. Smart growth is
planning, designing, developing, and revitalizing communities to promote a
sense of place, preserve natural and cultural resources, minimize public
outlays, and equitably distribute the costs and benefits of development. Smart
growth enhances ecological integrity over the short- and long-term, and
improves the quality of life by expanding the range of transportation,
employment, and housing choices in a fiscally responsible manner. Compact, pedestrian-oriented, mixed-use
development patterns epitomize smart growth and achieve more sustainable
communities.
Smart growth is a broad-based, grassroots-driven, bipartisan
movement. Every political barometer – polls, legislation, executive orders,
budget proposals and ballot initiatives – indicates that planning reform and
smart growth are major concerns. A recent APA analysis of planning reform activity in the states
during the past three years confirms that planning reform and smart growth are
among the top political concerns in statehouses across the nation. More than
2,000 planning bills were introduced between 1999 and 2001, and approximately 20% of them were approved.
In Vermont in the past four years, our legislature, with the
support of Governor Dean, has passed bills that provide significant new
incentives for downtown development, direct state agencies to manage their
investments and programs to support smart growth, and reinforce the importance
of town plans in state permit proceedings.
Activity has been bipartisan; of the 24 smart growth
executive orders issued between 1992 and 2001, 12 came from Republican
governors and 12 from Democratic governors; 27 governors – 15 Republicans, 10
Democrats, and 2 Independents – made specific planning and smart growth
proposals in 2001. The President’s own
cabinet reflects this support with former Governors Whitman, Thompson, and
Ridge along with former County Executive Martinez all having taken leading
roles in support of planning and smart growth during their tenure in state or
local government. This bipartisan
interest and support for smart growth is further reflected in the work of this
chamber’s Senate Smart Growth Task Force.
Mr. Chairman, we thank you for your leadership of this effort as
co-founder and co-chairman of the Task Force.
In Vermont, affordable housing advocates, businesses,
developers, environmentalists, historic preservationists, community development
specialists, planners and social equity organizations are all working towards
smart growth. For example, the Vermont
Forum on Sprawl is allied with the Vermont Business Roundtable, a policy
organization of 125 chief executive officers of large and small Vermont
companies, to develop new models for commercial and industrial development more
reflective of smart growth principles.
The Coalition for Vital Downtowns --including the state homebuilders and
realtors associations, League of Cities and Towns, state chamber of commerce, a
regional chamber of commerce, developers, the Preservation Trust of Vermont,
and our organization -- developed and successfully lobbied for more incentives
for downtown development. More
recently, the Vermont Smart Growth Collaborative, so far made up of 10 diverse
organizations, is pooling its resources and technical expertise to promote
better state agency planning, to assist communities, and to build public
awareness of the issues with sprawl and the opportunities with smart growth.
Smart growth provides a framework for growth and development
that assists all types of communities: inner cities, first ring suburbs,
exurban communities, small towns, and rural America. Importantly, smart growth recognizes and promotes
multijurisdictional cooperation and regionalism in planning as means of
coordinating development that leads to greater efficiencies, reduced public
expenditures, enhanced quality of life, and protection of natural
resources.
Many people believe that smart growth does not apply to
rural areas or that curbing sprawl in small towns means “no growth.” My experience in Vermont demonstrates that
the opposite is true. As the attached Figure 1 shows, we are slowly destroying
our valuable farm and forest land with wasteful, large lot development often
dictated by well-intended local regulations.
Our once scenic highways are becoming congested as the roadsides fill up
with fast food restaurants, gas stations, strip centers and big box stores
(Figure 2). Vermont communities are
experimenting with alternatives, such as the Richmond (2000 population: 4,090)
housing project (Figure 3), a relatively dense, but attractive, pedestrian-oriented,
affordable housing complex that fits well with the historic village
character. A new two-story Filene’s
department store in downtown Burlington (Figure 4) shows that 150,000 square
feet of retail space can fit into a built-up area and does not have to go on a
corn field.
In addition to citizen concerns about eroding quality
of life, one of the major catalysts for smart growth and improved planning is
the recognition of the increasingly high costs, for government and individual
taxpayers, related to existing patterns of development. There is growing awareness that poorly
planned development is a hidden tax on citizens and communities alike.
States and communities are dealing with the growing
fiscal implications of unmanaged growth facing metropolitan areas, suburbs and
neighboring towns. Planning reforms and smart growth provide long-term savings
by eliminating inefficiencies caused by inconsistent and uncoordinated planning
and widely scattered development. With
planning, communities can focus development where infrastructure is already
located avoiding duplication and costly waste. The fiscal situation is becoming
more acute as more states face deficit budgets. These deficits not only make smart growth planning more necessary
to control costs over the long term. At
the same time, ironically, financially strapped state and local governments are
hard pressed to implement better planning in the short term. In the current state fiscal environment,
federal resources – financial and technical – are critically needed. Indeed, some data resources needed for good
planning and new planning technologies (e.g., Geographic Information Systems,
or GIS) can only be provided through the federal government. This situation makes federal assistance in the form of
the Community Character Act more timely and necessary than ever.
The Vermont Forum on Sprawl has carefully examined the
potential savings resulting from implementation of smart growth and improved
planning. Our research has shown that sprawl patterns can cost from 3 to 4
times more than compact patterns of development. More compact and carefully
planned development patterns can lower costs for roads, bus and transit
service, water and sewer service, school bus transportation, police and
emergency services, thus saving on federal, state and local governments’
infrastructure expenditures. Developers
also can save on land costs, installation costs for road, sewer, water,
electric and gas lines, sidewalks, curbing, landscaping and other improvements,
thus lowering the housing costs for homebuyers and renters.
Role of Planning in Promoting Smart Growth
Planning is essential to achieving smart growth. Plans help a community establish a common
vision of development and a means of realizing that vision. The plan and the
process of planning helps communities move boldly forward with a clear and
articulate agenda for shaping their future. Within a planning framework of
diverse interests, a regional perspective and a vision of place, the interests
of preservation, environmental conservation, economic development, fair
housing, transportation and development can all move forward more effectively.
A plan is the foundation of a smart growth agenda. Various smart growth policies – from open space acquisition to urban
revitalization – are only effectively realized in the context of a plan.
Although planning is essential to achieving the smart
growth vision, many states still rely on model ordinances developed by
then-Commerce Secretary Herbert Hoover in the 1920s. These statutes, the Standard City Planning and Zoning Enabling
Acts, were designed to support the rise of zoning and were almost
universally adopted. While useful and
innovative for their time, ordinances and planning for turn-of-the-20th
-Century America are woefully inadequate for America at the turn of the 21st
Century. It is the updating of these
enabling statutes and the implementation of those reforms that the Community
Character Act most seeks to support.
But unlike the Hoover model, the Community Character Act does not
suggest imposing a single model on all the states but rather supports reform
and implementation that is developed based on the unique needs and context of
individual states and communities.
The pace of reform activity is astonishing. A recent APA report, “Planning for Smart
Growth: 2002 State of the States,” found that reform is increasing in terms of
the level of activity and the number of places focusing on the issue. Twenty five percent of the states are
implementing moderate to substantial statewide comprehensive planning reforms,
and nearly one-third of the states are actively pursuing their first major
statewide planning reforms for effective smart growth. Fifteen governors issued executive orders
related to planning and smart growth during the past two years, compared to
nine in the previous eight years combined.
Eight states issued legislative task force reports on smart growth,
compared to ten such reports during the entire decade of the 1990s. Reform
efforts also can no longer be characterized as an East Coast – West Coast
phenomenon. The movement is clearly spreading across the nation with inland
states representing 13 of the 25 total states actively engaged in reform
efforts.
Unfortunately, too many states and communities still lag
behind. Approximately one-quarter of
the nation’s states have made few or no updates to the original 1920s model
planning statute. These states, like
the rest of the nation, are struggling with issues like congestion and loss of
agriculture land but lack the planning tools to cope effectively. Many counties and municipalities have no
legal access to some of the most rudimentary planning techniques. New planning
strategies and approaches are needed so growth and development can be managed in
a way that maintains and improves quality of life.
Even the states that have good planning laws are
losing the battle to stop sprawl due to budget shortfalls, poor enabling
statutes and inability and failure to implement what they have. For example, the state of Vermont for over
30 years has attempted to maintain its historic settlement pattern of compact
community centers separated by rural countryside by adopting a state land
development law (Act 250), in which Chairman Jeffords had a major role, and a
state growth management law (Act 200), as well as providing incentives through
the Vermont Housing and Conservation Board grants program and the Downtown
Program. These laws and programs have
generated strong interest in community planning, preserved 100,000’s of acres
of prime farm and forest land, provided over 6,000 units of perpetually
affordable housing, and revitalized downtowns and village centers.
Yet, despite many years of interest and concern about
growth issues among the major political parties in Vermont, we still have
sprawl, and it is getting worse.
Why? There are many reasons, but
among them are state public investments that work against state growth
policies, poor local planning due to lack of training and technical expertise,
lack of awareness of alternative ways to grow, and failure to coordinate
planning among separate jurisdictions.
In Vermont we have no state planning office, no funds to enforce our
growth management act, extremely limited resources to provide technical
assistance to our many small towns, and a regional planning system that has
been ineffective in managing growth.
The Vermont Forum on Sprawl is working to draw attention to these
problems, but we need your help.
The Community Character Act
APA believes that the Community Character Act would be
an effective and beneficial tool for promoting smart growth and improving
planning while respecting state and local land-use prerogatives. I am greatly encouraged by today’s hearing
and hope that it is but the first step toward enacting this important legislation.
APA is not alone in our support for the Community
Character Act (S. 975). Like smart growth in general, a broad-based coalition
working to strengthen communities and neighborhoods through improved built and
natural environments has joined in support of this legislation, and I am
pleased to include this coalition’s letter of endorsement with my testimony
this morning. Likewise, the measure
enjoys support among grassroots organizations like mine. In Vermont, eight groups comprised of
citizens concerned about smart growth have endorsed the Community Character
Act.
The reason for the measure’s strong support is that it
responds to widespread citizen interest in smart growth by providing critical
resources to help state and local leaders, business and environmental
interests, and concerned citizens bring about positive change in their
communities through better planning. It
provides an incentive for better planning while maintaining flexibility for
states and localities. Without
legislating local or state planning policy, the bill would be a landmark in
encouraging planning that achieves some key smart growth objectives, such as
linking planning to implementation, encouraging regionalism and public
participation, supporting housing choice and affordability, making more
efficient use of land and infrastructure, and conserving vital resources.
S. 975 encourages states to create a framework for smart
growth planning without mandating local land-use policy. The
bill provides support for innovative and updated tools needed by states and
communities working to manage the many challenges presented by growth. Communities would not be forced to pursue
smart growth strategies, but S. 975 would provide assistance to those that
choose to do so.
The bill supports planning reform and implementation through
grants that could be used for a variety of planning and smart growth
programs. Grant funding is designed to
be flexible and responsive to local needs and vision. States could pass grant
funding directly to local governments for planning activities. Grants could
also be applied to activities other than statutory revision, such as research
and development activities for state, regional or local planning, public
meetings, policy maker workshops and coordination of local plans and federal
land management. Funding could also be used to acquire information technology
and equipment to improve planning, such as GIS systems, and public
understanding of the consequences of current development patterns, as well as
envisioning alternatives.
Mr. Chairman, your planned legislation to provide grant
support for community visualization and decision making technologies would
greatly aid smart growth planning efforts.
That legislation, in combination with the support possible through the
Community Character Act, would greatly enhance planning and public
participation in crafting a vision for the community. We look forward to continuing to work with you on behalf of both
bills.
Program eligibility would be broad and not limited to
states revising enabling statutes. A
major focus of the bill is promoting the reform of state planning statutes;
however, states implementing reforms or seeking to bolster comprehensive
planning would also be eligible for funding. S. 975 establishes criteria for
grants that recognize statutory reform as an important priority but lays out
other criteria under which any state could apply, including economic
development, environmental protection and regionalism.
The Community Character Act is designed to promote
locally-driven planning innovation through resources, technical assistance and
capacity building. Many areas,
particularly rural regions and small towns, suffer from a lack of planning
resources and expertise. According to a
survey of county governments conducted last year, only 39% of rural governments
do comprehensive planning versus more than 70% of metropolitan
governments. At the Vermont Forum on
Sprawl we hear daily from citizens and local officials asking for help with
local planning issues. Several thousand
citizens have requested our Way To Grow! planning guides and nearly 25%
of Vermont communities have been represented in our training courses. We are hard-pressed to meet the tremendous
demand for help. S. 975 sets up a grant
for local or regional planning pilot projects to promote smart growth and
continued planning innovation. The
measure also establishes a technical assistance and capacity building program
that would support improved planning in a variety of ways, including expanded research,
training programs, new data resources for local planning and improved
intergovernmental cooperation.
With such tremendous need for planning resources and the
many opportunities for Community Character grants to make a substantial impact,
the singular drawback to legislation before the committee is the limited amount
of funding authorized. We recognize the fiscal limitations of the moment but
hope that funding levels might ultimately be increased. APA has found through various studies that
any investment in planning will pay dividends many times over in money saved on
unnecessary waste, duplication and inefficiency. Quite simply, we cannot afford
not to help communities plan.
This legislation is also a long overdue step toward
assisting tribal governments with comprehensive planning and promoting improved
cooperation on land-use planning between federal land management agencies and
state and local land-use planning officials. The
bill correctly notes that tribal governments routinely lack adequate resources
for planning and that improved land-use planning would enhance environmental
protection, housing opportunities and socioeconomic conditions for tribes. Some funding would be reserved for use by
tribal governments. The bill also seeks
to encourage improved consultation on land-use decisions among federal
agencies, state governments, local governments and nonprofit organizations.
In Vermont the Community Character Act could help us review
our existing state planning statutes and, with the involvement of diverse
interest groups and citizens, propose ways to make them more effective. It might even generate interest in the
return of our state planning office. It
could support a statewide local planner training program that would improve the
development and implementation of local plans reflecting community
visions. Or it could help regional
planning commissions and local governments arrive at better regional approaches
to smart growth.
But the reach of the Community Character Act certainly is
not limited to my state. Potential uses
of the legislation include helping states with formal state smart growth
commissions, such as Kentucky, Colorado, Florida, and New York; easing the
implementation of planning reform in states like Pennsylvania, Wisconsin, New
Jersey, and Tennessee; or simply aiding the local and regional innovations in
states across the nation.
Need for a Federal Role
Some will argue that
because planning and land use are local responsibilities, the federal
government should play no role. APA
recognizes that all levels of government, as well as the nonprofit and public
sectors, play an important role in creating and implementing policies that
support planning and smart growth. The
complex array of incentives, assistance, regulations, and financial
considerations already in place affect and drive development practices. The current patterns of development do not
occur in a vacuum.
All levels of government –
federal, state, regional, county, and local – have a proper role and responsibility
in improving communities and supporting smart growth. Local governments have
long, and rightly, been the principal stewards of land and infrastructure
resources through implementation of land-use policies. Smart growth respects that tradition, yet
recognizes the important roles that federal and state governments play as
leaders and partners in advancing and implementing smart growth principles.
In fact, the federal
government has often contributed to sprawl in the past. The federal government remains the nation’s
largest landlord. While we often think
of the vast federal tracts of land in West, we might also consider all the post
offices, courthouses, and federal buildings that dot the landscape in almost
every town and county in the nation. All
too often in the past, federal facility regulations or outright exemptions from
planning and land-use policies have led to federal agencies harming downtowns
while simultaneously aiding and abetting sprawl.
In Vermont, right now, to
meet federal design specifications, a new Immigration and Naturalization
Service building in Chittenden County will be forced to locate on a greenfield
because no existing downtown buildings or sites can qualify. Numerous communities, such as Westminster
and Enosburg Falls, are fighting to keep their post offices in their town
centers, but many have already lost the battle. We are most appreciative of the leadership of Chairman Jeffords
and Senator Baucus in addressing the problem of “postal sprawl” with federal
legislation, S. 897.
Similarly, other federal
policies, seemingly unconnected to land-use and development patterns, have had
a profound, if unintended, impact. Post
World War II policies ranging from the mortgage interest tax deduction to water
and sewer extension aid were major factors in shaping patterns of
development. Few would argue the
benefits associated with expanding homeownership and providing needed
infrastructure. However, we are now at
a moment in our nation’s history where, as good stewards of our resources, we
must address how we can better plan and coordinate development if we hope to
maintain the quality of life and quality of community demanded by citizens. If
the federal government has been part of the problem, surely it can now be part
of the solution.
I believe that federal
incentives and assistance for smart growth are appropriate for you to consider
because promotion of smart growth is squarely in the national interest and
demands a national response. I am not
alone. A national public opinion survey
conducted for APA found that 78% of voters in the last election believe
Congress should provide incentives to help promote smart growth and
comprehensive planning. This same
survey found that more than three-quarters of those surveyed believe it is
“important for the 107th Congress to help communities solve problems
associated with urban growth.” These
findings were underscored by almost identical support levels in a survey
conducted by my panel colleague this morning, Don Chen and Smart Growth
America, as well as surveys conducted on behalf of the Forum on Sprawl.
Many who oppose assistance for planning today will be back
tomorrow looking for tax breaks and infrastructure assistance to support the
development status quo. If we are
prepared to support tax incentives or other forms of assistance for specific
types of development in specific places, however beneficial, why then can we
not offer assistance to communities for better planning and coordinating that
development? I would say to my friends who might oppose an incentive for
planning, how is one more intrusive of local prerogatives than the other?
Should they not work together?
Some interest groups will
wrap themselves in the mantle of smart growth, crowing about its importance,
yet consistently oppose any real legislative reform. These organizations view any incentive or assistance, however
modest or voluntary, as somehow “federalizing” land use. Nothing in the legislation before the
committee this morning contains anything of this sort. Support for planning and smart growth must
be more than rhetorical exercises intended to respond to public opinion
polls.
The types of incentives
envisioned in both the Community Character Act and the Brownfields Site
Redevelopment Assistance Act are in the national interest because each would
provide broad environmental enhancement outcomes and would do so without
relying on regulations and enforcement.
In addition, the kind of strategic planning, investment coordination,
and public participation envisioned in both bills would leverage a wide range
of existing federal investments, from Community Development Block Grants to an
array of new or expanded federal land conservation programs. The federal government offers many programs
aimed at economic and community development. However, all too often these
programs provide little or no support for planning. An investment in planning would increase the ultimate impact of
the federal investment.
The Environmental Protection Agency under both the Clinton and
Bush Administrations has recognized the need for a federal role in promoting
planning and smart growth.
Administrator Whitman recently made the Administration’s support clear:
“Addressing new environmental challenges requires us to manage all of our resources
better – economic, social, and environmental – and manage them for the long
term. That is why Smart Growth is so
important – it is critical to economic growth, the development of healthy
communities, and the protection of our environment all at the same time. The
Bush Administration – and the EPA especially – understands the importance of
Smart Growth.”
Administrator Whitman was echoing comments offered by
Housing and Urban Development Secretary Martinez during his confirmation
hearing when he indicated that smart growth issues would be a priority at HUD.
He called for "a national dialogue on the challenges of growth and its
impact on quality of life" in his testimony, and in response to a question
on what HUD’s role should be in smart growth, Martinez answered that managing
growth is part of HUD’s mission. He also stressed that a federal response to
growth issues goes beyond HUD and would involve other agencies and departments.
There is also a strong need to promote multi-state
cooperation on these issues. The
Community Character Act specifically attempts to do this by enabling grants for
multi-state regional cooperation on planning.
Fostering regional cooperation and education is essential because
natural resources, watersheds, city borders, and development impacts do not
stop at artificial political boundaries.
This is certainly the case in New England, where all the states in the
region recognize the need to learn from each other and collaborate in order to
produce sustainable, smart growth outcomes throughout the region. We know we
cannot go it alone in Vermont and be successful without engaging other
states. We have worked with New
Hampshire in assisting them with analyses of state expenditure patterns as part
of a state sprawl report. Additionally,
we have conducted joint training and planner exchange programs with the Maine
State Planning Office, and a similar program has been requested by people in
Massachusetts.
But New England is not the only place in the nation where
this type of multi-state cooperation on planning is needed. Federal action is sorely needed to help
overcome the obstacles of working across state lines. Grants through the
Community Character Act for precisely this kind of activity would provide a
valuable incentive for improving regional communication and collaboration,
resulting in improved land use throughout an entire region.
Brownfields Site
Redevelopment Assistance Act
APA and other proponents of
smart growth were delighted by the final passage of brownfields reform last
year and equally pleased to see the Bush Administration’s budget request for
brownfields programs. Mr. Chairman, you
and the members of this committee deserve great praise for leading the long
effort to seeing brownfields reform become law.
Now is the time to build on
that success with targeted assistance for the planning and redevelopment of
brownfields sites. Earlier efforts
focused on solving liability problems and providing resources for site identification,
evaluation and clean-up. These were
critically important first steps. But
in order to realize the full economic, environmental, and social potential of
brownfield redevelopment, we must go beyond a focus on remediation alone to an
approach that places brownfields within the larger context of community
reinvestment and revitalization. This
is precisely what S. 1079 does.
By providing resources for
planning, development of public facilities and services, revolving loan funds
for business development, and general technical assistance associated with
brownfield sites, this legislation allows communities to not only clean up
sites but also make these sites part of a broad economic development plan and
strategy. In essence, this bill would
function as a “multiplier” effect for current federal investments in brownfield
remediation and further leverage private sector investments in these
communities.
As one familiar with the
particular challenges facing small towns and rural areas, I am pleased that
this legislation recognizes that brownfields are not limited to urban
America. Provisions focusing on
communities experiencing difficulties related to economic restructuring,
outmigration, and infrastructure deterioration will make this a valuable resource
for small towns.
The planning provisions in
the bill are positive steps forward. By
promoting consistency between plans and brownfield projects, this legislation
helps ensure that grants would not just provide isolated assistance but would
be a catalyst for broader economic and community development. Additionally, the legislation rightly
articulates the importance of community participation and visioning in planning
for brownfields-related redevelopment. Such
provisions help answer long-standing concerns about environmental justice in
distressed neighborhoods.
Finally, the bill envisions
assistance for brownfield redevelopment projects that “conserve environmental
and agricultural resources.” This focus directly responds to the demand for
smart growth plans and projects. By
including assistance for adaptive reuse, development of land and abandoned
property, and the of creation parks and recreational opportunities, the bill
can be an incentive for improved planning and smart growth.
Conclusion
Planners are heartened by
this hearing and the important step forward it represents. We are further encouraged by the legislation
contemplated this morning that would offer vital assistance to numerous states
and communities struggling with the consequences of change, whether rapid
growth and development or economic decline.
These bills recognize that the federal government can, and should, be a
constructive partner with communities seeking innovative solutions to improving
local quality of life through better planning and land use. The Community Character Act and the
Brownfields Site Redevelopment Assistance Act are a modest investment that will
bring substantial dividends in improving the livability of cities, towns,
neighborhoods, and rural areas throughout the nation. We hope this hearing is but a first step toward their enactment.
We are committed to working
with you, Mr. Chairman, and this committee in making the promise of smart
growth a reality.
Mr. Chairman, this
concludes my testimony. I thank you and the committee for the opportunity to be
here today, and I would be pleased to answer your questions at the appropriate
time.
American Institute of Architects
American Planning Association
American Society of Landscape Architects
Defenders of Wildlife
National Association of Regional Councils
Natural Resources Defense Council
National Trust for Historic Preservation
National Wildlife Federation
Scenic America
Sierra Club
Smart Growth America
March
4, 2002
The
Honorable James Jeffords
Chairman,
Environment and Public Works Committee
United
States Senate
Washington,
D.C. 20510
The
Honorable Robert Smith
Ranking
Minority Member, Environment and Public Works Committee
United
States Senate
Washington,
D.C. 20510
Dear
Chairman Jeffords and Senator Smith:
The
undersigned organizations, representing a broad array of interests and
professions working to strengthen communities and neighborhoods through
improved built and natural environments, applaud your leadership in holding a
hearing on smart growth and, particularly, the Community Character Act (S.
975). We endorse this bipartisan
legislation introduced by Sen. Lincoln Chafee and urge you, and your Committee
colleagues, to consider and approve S. 975.
This
hearing is an important step in advancing the public discussion about how the
federal government can appropriately and effectively support state and local
smart growth activities. S. 975
provides an opportunity to assist and complement state and local efforts to
promote smart growth and is a perfect example of how to support local planning
efforts without undermining local control of land use. With most state and local governments facing
dire fiscal situations, the need for limited federal assistance is greater than
ever.
Americans
are increasingly aware and concerned about unplanned growth and its
byproducts—loss of open space, congestion, limited housing options, strip
malls, and loss of ecological biodiversity—as clearly indicated by surveys and
the passage of numerous local ballot initiatives to address these issues. S. 975 responds to these concerns by
authorizing voluntary funding assistance to state, tribal, and local
governments that request help in planning and implementing their respective
visions of sustainability.
Good planning and design make good business sense, in
addition to minimizing some of the harmful impacts that unmanaged growth can
have on local and regional ecosystems.
Long-term planning and design help to create communities with character
and a variety of options for living and working. As people are drawn to such places—as tourists or residents—the
economy thrives.
Again,
thank you for your leadership and vision in holding this important hearing. We
ask that you continue to demonstrate your support for smart growth by
supporting and adopting S. 975.
Sincerely,
Lisa
Blackwell, Managing
Director, Government Affairs
American
Institute of Architects
W.
Paul Farmer, AICP, Executive Director
American
Planning Association
Marcia
Argust, Director Legislative and Public Affairs
American
Society of Landscape Architects
Mark
Shaffer, Senior Vice President
Defenders
of Wildlife
Robert
Sokolowski, Executive Director
National
Association of Regional Councils
Deron
Lovaas, Deputy Director Smart Growth Policies
Natural
Resources Defense Council
Gordon
Kerr, Director Congressional Affairs
National
Trust for Historic Preservation
John Kostyack, Senior
Counsel
National
Wildlife Federation
Meg
Maguire, President
Scenic
America
Debbie
Sease, Legislative Director
Sierra
Club
Don
Chen, Executive Director
Smart
Growth America
Vermont Forum on Sprawl
Association of Vermont
Conservation Commissions
Conservation Law Foundation
Friends of the Earth
Preservation Trust of Vermont
Vermont Natural Resources
Council
Vermont Planners Association
Vermont Public Interest Research
Group
March
1, 2002
The
Honorable James Jeffords
Chairman,
Environment and Public Works Committee
United
States Senate
Washington,
D.C. 20510
The
Honorable Robert Smith
Ranking
Minority Member, Environment and Public Works Committee
United
States Senate
Washington,
D.C. 20510
Dear
Chairman Jeffords and Senator Smith:
The
undersigned organizations, representing a broad array of interests and
professions working to strengthen communities and neighborhoods through
improved built and natural environments, applaud your leadership in holding a
hearing on smart growth and, particularly, the Community Character Act (S.
975). We endorse this bipartisan
legislation introduced by Sen. Lincoln Chafee and urge you, and your Committee
colleagues, to consider and approve S. 975.
This
hearing is an important step in advancing the public discussion about how the
federal government can appropriately and effectively support state and local
smart growth activities. S. 975
provides an opportunity to assist and complement state and local efforts to
promote smart growth without undermining local control of land use. With most state and local governments facing
dire fiscal situations, the need for limited federal assistance is greater than
ever.
Vermonters,
like many Americans, are increasingly aware and concerned about unplanned
growth and its byproducts—loss of open space, congestion, decline of
neighborhoods, limited housing options, strip malls, and loss of ecological
biodiversity. According to our 2001
poll, nearly two thirds of Vermonters think that current development trends
will lead to sprawl and that there is a need to take action to stop it. S. 975 responds to these concerns by
authorizing voluntary funding assistance to state and local governments that
request help in planning and implementing their respective visions of
sustainability.
Good planning and design make good business sense, in
addition to minimizing some of the harmful impacts that unmanaged growth can
have on local and regional ecosystems.
Our work with the business community in Vermont demonstrates their
commitment to long-term planning and better design that will create communities
with character and a variety of options for living and working. As people are drawn to such places—as
tourists or residents—the economy thrives.
Again,
thank you for your leadership and vision in holding this important hearing. We
ask that you continue to demonstrate your support for smart growth by supporting
and adopting S. 975.
Sincerely,
Elizabeth
Humstone
Executive
Director, Vermont Forum on Sprawl
Virginia
Rasch
Executive
Director, Association of Vermont Conservation Commissions
Mark
Sinclair
Senior
Attorney and Vice President, Conservation Law Foundation
Brian
Dunkiel
Attorney
for Friends of the Earth
Paul
Bruhn
Executive
Director, Preservation Trust of Vermont
Curt
McCormack
Director
of Advocacy, Vermont Public Interest Research Group
Elizabeth
Courtney
Executive
Director, Vermont Natural Resources Council
Sharon
Murray, President
Vermont
Planners Association
Attachment: Dissenting Comments on the APA Growing
Smart Legislative Guidebook
American Road and Transportation Builders Association
International Council of Shopping Centers
National Apartment Association
National Association of Home Builders
National Association of Industrial and Office
Properties
National Association of Realtors
National Multi Housing Council
Self Storage Association
PREFACE
As the member of the Growing Smart Directorate representing
the “built environment”, I speak for the citizens who own land and who, in any
proposed use of such land, would be subject to the rules and processes proposed
in the Guidebook if adopted by states, regions, counties, or municipalities. I
submit this on behalf of the homebuilders, office and industrial developers,
real estate agents, general contractors, road builders, engineers, architects,
and others who are generally classed as the built environment.
Clearly, I will not presume to comment on the whole of this
monumental work, but only briefly on three things: 1) assumptions that either
do or should underlay the process; 2) a major disappointment in the Guidebook;
and 3) a selected group of specific issues of such major import to the whole
enterprise of Smart Growth and its twin, Smart Process, that if not implemented
and managed properly, have the potential to undermine much of the value that
has been achieved.
ASSUMPTIONS
Smart Growth means
planning for growth, not slowing growth or no growth. The Guidebook is
successful in reaching its objective of Smart Growth and its twin, Smart
Process, in some specific areas. However, on the whole, it falls far short of
what might have been achieved. This is hardly a surprise when you consider the
current state of growth management and the constant battleground it has become.
I feel the process began to come undone as it moved ahead with a broad vision
of Smart Growth, because working assumptions and definitions were not
constantly revisited to see if they had continuing validity. In the end, the
process sought to satisfy two or more visions, often imposed from outside of
the staff and Directorate, by presenting alternatives rather than doing the
harder job of reaching consensus on a common vision. Alternative choices
for managing growth—within a common vision of Smart Growth that means planning
for growth as needed, not stopping it—are what is needed to meet the needs of
divergent communities.
Any approach to Smart
Growth must be comprehensive. This means that it must include concerns for
the environment, the economy, and social equity or justice. These three elements must be balanced.
Like a three-legged stool, if the legs are not the same length, it will not
provide a solid base to stand on; and if one leg is too long, the stool will
tip over.
The natural environment needs strong protection, but
protection comes in many forms. Some
lands need to be preserved in public ownership, while others are best protected
by environmentally sensitive development. Still other lands are suitable for
intense development to allow a community to accommodate its projected
development needs. The Guidebook falls
short in identifying various types of land that require protection and criteria
to judge the best protection techniques. While limited in scope, the Guidebook
focuses on limiting development in “sensitive areas” with little guidance on
defining what they are and the best ways to protect them.
The absence of an economist on the Directorate or of any
significant economic or tax studies is an indication that the economics of Smart
Growth were only peripherally addressed. When essential economic issues began
to emerge, there was little willingness to indicate at the very least that they
were important and needed to be considered, even if they were not included in
any depth within the Guidebook. To deal with the economy seriously, beyond the
Guidebook’s modest efforts, you must include a consideration of economic
development and job generation, especially how they interact in creating land
use demand. Other related topics that need to be understood include how
taxation policy drives land use decisions, favoring job generation without
always addressing the provision of adequate housing to match those jobs; how
housing, commercial, and retail markets interact in creating growth pressure;
how you plan for, build, and finance infrastructure in a timely and
cost-effective manner; among many other items that affect the economy.
In the simplest terms,
social equity is concerned with how well people can live in a community on
the wages they are able to earn in jobs created by economic development and the
degree to which growth benefits all segments of society. The Guidebook gives considerable
protection from the adverse consequences of growth but does not adequately
address the equity issues inherent in a community’s failure to ensure that
affordable housing for all income segments is available. The inclusions in the Guidebook are not sufficient.
To judge APA adversely for not having predicted that
“comprehensive planning” for Smart Growth included such a broad array of issues
is unfair. This is an area of inquiry that grows as the interrelatedness of
many issues and their importance to the whole emerges. While it might have been
impossible to include all of these within the scope of the original enterprise,
the work suffers by not indicating that these gaps exist. I hope that if the
Guidebook undergoes revisions in future years, the APA will consider analyzing
some of these areas and that broad advisory input from affected interest groups
will be incorporated in such revisions. In the meantime, the absence of these
issues in this Guidebook compromises its goal of providing pathways for Growing
Smart.
Growing Smart
requires a blueprint or comprehensive plan that, when adopted, becomes public
policy. The process for developing any effective public policy must be inclusive,
deliberate, and, to the greatest degree possible, achieved by consensus. It
cannot be a top-down process, with public officials and staff driving and
controlling the process. Rather, they need to enable the broadest possible
community of voices and viewpoints to be heard and to participate. This should
also include private sector business people, who are often excluded from the
public debates. After all, they are the ones who take many of the risks
involved in implementing the growth plan. The goal is to achieve a community
vision that balances as many needs and desires of the community as possible.
This vision takes tangible form as public policy known as an adopted comprehensive
plan. Elected officials then need to legislate the most effective structure for
the efficient, timely, and cost-effective implementation of this public policy.
Smart growth requires
a smart process to fully implement what the community seeks from its smart
growth public policy. When a landowner or any other citizen seeks to use
their land or any other outcome in strict conformity to the provisions of the
master plan/public policy, they have a right to expect a process that allows
only directly and significantly affected parties to participate. Unforeseen and
unexpected negative consequences of the proposed implementation need to be
dealt with equitably. The benefits to the community and the applicant will be
fidelity to the community’s growth vision, the elimination of unnecessary risk
and time, and significant cost savings to all parties, not the least being for
taxpayers/consumers.
A basic philosophical premise of smart growth should be that
comprehensive plans be implemented, not nullified in piecemeal fashion through
the development review process. Issues
settled during the comprehensive plan debate should not be reopened for a
period of time following adoption if the plan and the process are to be meaningful.
MAJOR DISAPPOINTMENT
At best, this is a complex document that requires a good
deal of knowledge to even begin to use.
A solid index is only a partial and incomplete solution. The
cross-referencing list now included at the beginning of each chapter is a good
start, but to make this work truly useful requires extensive cross-referencing
within the text itself, section-by-section, subsection-by-subsection. This is a
major but absolutely essential task for effective and complete use.
SPECIFIC ISSUES IN THE GUIDEBOOK
My objections and recommendations relate to the eight most critical
areas of concern: standing and
reopening of settled issues, supplementation of the record, sanctions on local
government for failure to update plans, exhaustion of remedies, moratoria,
vested rights, third-party initiated zoning petitions, and designation of
critical and sensitive areas.
Standing and Reopening of Settled Issues
After embracing the traditional standard of “aggrievement”
as the basis for standing to petition for judicial review of a land use decision
(September 2001 Draft of the Guidebook, hereinafter “September 2001 Draft”),
the most recent draft (hereinafter, the “October 2001 Draft”) inexplicably
dilutes the definition of “aggrieved” and adds other options that effectively
allow any person with any ax to grind to pursue a court challenge, whether or
not he or she will actually suffer any special harm or injury, has appeared at
or offered evidence during a public hearing, or even lives in the impacted
community. This expansive approach to standing fundamentally alters the system
now in place across the nation, which requires a party challenging a land use
decision to take part in the approval process and offer comments, to actually
live in the community in question, and to demonstrate that the proposed use
will cause special injury or harm to them over and above its impact upon the
public generally. These liberal standing provisions will increase the amount of
litigation that communities will face and it is more likely the government will
be sued rather than a developer.
The objectionable provisions of the Guidebook with respect
to issues of standing seem to be motivated by a desire to be inclusive, that
is, to apply a liberal standard that is easily met. Section 10-607(4) no longer
includes an aggrievement test when determining who can petition the courts on a
land use matter, and Section 10-607(5) is acknowledged in the commentary to
afford standing to persons who haven’t even participated in the agency’s
hearings. Perhaps this approach follows
from the current trend of greater public participation in planning. I
wholeheartedly support the idea of extensive public participation in planning. However, it does not follow
from this that broad public participation in development review or in judicial
review of site-specific development proposals is a good thing. On the
contrary, such participation would be detrimental and open the door to
undermining the work of the greater citizenry that helped to produce and
articulate the broad public policy themes of the comprehensive plan. Liberal
standards of public involvement are appropriate at the level of planning,
policy, and broad regulatory enactments such as comprehensive zoning and
zoning ordinance text amendments. But the standards should become stricter as
we move down to levels of post-zoning implementation, such as site-specific
project review, and judicial review.
The public generally shares this view as evidenced by the
overwhelming rejection of Amendment 24 in Colorado and of Proposition 202 in
Arizona in the November 2000, elections. A
specific development proposal that is consistent with the comprehensive plan
and development regulations is also consistent with the greater public’s “vision”
for the future. It does violence to this vision when we open the appeal
process liberally to active special interests, no matter how well intentioned,
and permit them to derail worthy projects that do not comport with their
particular vision. A community cannot achieve its vision of “smart growth” without
a smart process that preserves and protects its adopted vision from naysayers
in the community.
Major issues decided at the comprehensive
planning and zoning stage, such as use, density or intensity, should not be revisited in the post-zoning
site-specific proceeding unless the
application does not comply with these decisions. It is critical that this
principle be recognized in the Guidebook. Otherwise, there will be no
protection or political cover for decision-makers from the onslaught of
entrenched growth opponents who reside in areas planned for growth. They could
stop the proposed growth allowed in the Master Plan, oppose adopted public
policy and create costly delays.
LEGAL ANALYSIS OF THE GUIDEBOOK’S APPROACH TO STANDING
· After
previously acknowledging that “aggrieved” status (with the twin elements of
special harm or injury distinct from any harm or injury caused to the public
generally) should be the primary criterion in determining one’s standing to
petition for judicial review of a land use decision, the final draft Guidebook
guts any such requirement. First,
the definition of “aggrieved” in Section 10-101 has been revised to make both
“special” and “distinct from any harm or injury caused to the public generally”
optional. The principal definition now requires merely an undefined
generalized showing of “harm or injury” in order for one to have standing. (This is similar to the discredited “may be
prejudiced” test advanced in prior drafts, and is also contrary to the
understandings reached at the Directorate’s final meetings on September 23-24,
2001.)
· Second,
Section 10-607(4) now broadly allows “all other persons” who participated by
right in an administrative review or who were “parties to a record” to seek judicial
review without any showing of
aggrieved status. This appears to be based upon comments by the Staff in
an October 12, 2001, Memorandum to Directorate members suggesting that a
showing of aggrievement on judicial review is unnecessary in a record appeal
when the challenger has already been deemed to be aggrieved by the local
government agency (October 12, 2001, Memorandum, p. 5). This view is contrary to established legal
precedent, since it is within the purview of the court - not the administrative
agency whose decision is under review - to determine whether or
not the challenger is aggrieved. The court’s authority cannot be usurped by an
agency determination regarding aggrieved status. See, e.g., Sugarloaf Citizens Assn. v. Department of
Environment, 686 A.2d 605 (Md. 1996), discussing the difference between
administrative standing before an agency and the requirement for standing to
challenge the agency’s decision in court. While the former rule is not very
strict, “judicial review standing” requires that one be both a party before the
agency and “aggrieved” by the agency’s final decision (i.e., specifically affected in a way different from the public at
large). Determination of judicial review standing is exclusively a judicial
function and the court need give no deference to the agency’s finding in this
regard. Id. Section 10-607(4) is a
legally flawed criterion, which effectively allows the administrative agency
whose decision is under review to determine who shall be “aggrieved.”
· Third,
Section 10-607(5) allows “any other person,” including persons who have skipped
the agency proceedings altogether, to seek judicial review merely upon a
showing that they are “aggrieved” under the expansive new definition of that
term in Section 10-101.
· Treatise
writers favor the traditional aggrievement standard. As can be seen from
the following examples, the views expressed herein regarding Sections 10-101
and 10-607(4) and (5) are shared almost universally by treatise writers and
courts.
Ø “Almost
all state statutes contain the ‘person aggrieved’ provision but only a minority
extend standing to taxpayers . . .
Under
the usual formulation of the rule, third-party standing requires ‘special’
damage to an interest or property right that is different from the damage the
general public suffers from a zoning restriction. Competitive injury,
for example, is not enough. This rule reflects the nuisance basis of zoning,
which protects property owners only from damage caused by adjacent incompatible
uses. Although the special damage rule is well entrenched in zoning law, a few
courts have modified it. New Jersey has adopted a liberal third-party standing
rule that requires only a showing of “a sufficient stake and real adverseness.”
Daniel M. Mandelker, Land Use Law §
8.02 at 337 (4th ed. 1997) (emphasis added) (citations omitted).
Ø The
requirement that a person must be ‘aggrieved’ in order to appeal from the board
of adjustment to a court of record was originally included in the Standard
State Zoning Enabling Act and has been adopted by most of the states. See Kenneth H. Young, Anderson’s American Law of Zoning §
27.09 (4th ed. 1997).
Ø “To
be a person aggrieved by administrative conduct, it is necessary to have a more
specific and pecuniary interest in the decision of which review is sought. A
Connecticut court said that in order to appeal, plaintiffs are required to
establish that they were aggrieved by showing that they had a specific,
personal and legal interest in the subject matter of the decision as
distinguished from a general interest such as is the concern of all members of
the community and that they were specially and injuriously affected in their
property or other legal rights.” Id.,
§ 27.10 at 523-24 (Citations omitted.)
(Emphasis added.)
· Case
law in many jurisdictions is in accord with the special injury rule. See, e.g., Hall v. Planning Comm’n of Ledyard, 435 A.2d 975 (Conn. 1980); DeKalb v. Wapensky, 315 S.E.2d 873 (Ga.
1984); East Diamond Head Ass’n v. Zoning
Bd. Of Appeals of City and County of Honolulu, 479 P.2d 796 (Haw. 1971); Sugarloaf Citizens Ass’n v. Department of
Env’t, 686 A.2d 605 (Md. 1996); Bell
v. Zoning Appeals of Gloucester, 709 N.E.2d 815 (Mass. 1999); and Copple v. City of Lincoln, 315 N.W.2d
628 (Neb. 1982).
· In view
of these and other long established precedents for establishing aggrievement as
the standard for participating in the proceedings of local government agencies
and thereafter, for challenging their decisions in court, it is disappointing
that gaping loopholes have been inserted in the Guidebook that (a) allow persons
who are not aggrieved to gain standing before agencies and thereafter in court
to contest an agency decision (§ 10-607(4)), and (b) allow other persons, including
adjacent residents - thus
prima facia aggrieved - to bypass the agency proceeding altogether and hold
their challenge for court (§ 10-607(5)).
RECOMMENDED SOLUTION:
Avoiding
Reopening of Settled Issues
To avoid
reopening issues settled in the adoption of a comprehensive plan, a ninth item
should be added to Section 10-207 (Record Hearings) to state that when any site
specific development application is submitted for review under this section
within six years of the adoption or amendment of the plan, major issues such as
land use, density or intensity shall not
be reargued or reconsidered. The
only limited exceptions to this prohibition should be if the proposed use of
the site is not in accordance with the plan, or if the density or intensity
proposed for the site exceeds that in the plan and applicable zone.
This is based on the sound premise that the site-specific
proceeding should not become a forum to reopen debate on the community’s
already decided broad land use and growth policies. See J. Tryniecki, Land Use
Regulation: A Legal Analysis and
Practical Application of Land Use Law 323 (American Bar Assn. 1998).
Standing
to Seek Judicial Review
Items (4) and (5) of Section 10-607 (Standing and Intervention)
should be deleted and new Sections 10-607 (4) and (5) should be added to
provide that only those persons who both participated in the record hearing and
are aggrieved (i.e., will suffer special harm or injury distinct from that
caused to the public generally) by the land use decision has standing to
intervene in the land use decision.
Supplementation of the Record
In a proposal that
closely mirrors expanded standing, an optional provision in the Guidebook would
allow for expansion of the record by the court that hears a land use challenge.
Parties would be able to introduce new studies, new testimony and new exhibits
that were never made available to the local jurisdiction that issued the land
use decision in the first place. Neither would the applicant have had an
opportunity to challenge, verify, or modify them in a deliberative process.
Such a proposal would turn courts into planning and zoning appeals boards,
allowing them not only to second guess a local decision, but to make a
decision entirely on their own with no deference to local concerns.
In the final meeting of the Directorate, it was my
understanding that the commentary would be modified to include a statement that
remand is preferable to supplementation where the evidentiary record is
inadequate. The statement added to the October 2001 Draft of the Guidebook
leaves the issue ambiguous and open to interpretation that is destructively
broad.
Section 10-613 and the commentary preceding it address the
pros and cons of courts supplementing the record. The commentary mentions such
factors as time, fairness, cost, experience, etc. that should be weighed but
neglects one very important consideration that I believe may override the
others. That is the importance of maintaining a separation of power between
the legislature and the judiciary. It is acknowledged that local legislative
bodies may be subject to political pressure, but that is the essence of
representative democracy. In our system of government, it is the job of
legislative bodies to debate public policy and in the end to make decisions
that reflect the dominant view. In
contrast, the job of the judiciary in record appeals from decisions of local
government legislative and administrative bodies is to review the
decision-making process to ensure fairness, to see that the decision is in
accordance with the law, and to review the record based upon a reasonableness
standard (i.e. substantial evidence/nor clearly erroneous), but not to substitute its judgment for
that of the local government decisionmaker.
I believe subsections 10-613(1)(d) and 10-613(2) blur the
distinction between the acts of local government legislatures and
administrative bodies on the one hand and the judiciary on the other and
permit the judiciary to usurp the proper role and powers of these bodies. Land use decisions are by nature political
decisions, thus the proper places for the resolution of competing views are the
local legislature, planning board, or board of appeals, not the courtroom. If, upon review of the record, it is found
that the decisionmaker did not consider essential information, the judge should
remand the case back to it with instructions to consider the missing
information and then make the decision. In our view judges should strongly
resist the urge to rule on the substantive merits of a land use controversy.
Unlike other cases that come before a judge, there may be no “right” or “wrong”
in land use. Instead, the question is likely to be, “what decision provides the
greatest good for the greatest number?” and that is the business of the local
legislative body.
LEGAL ANALYSIS OF SUPPLEMENTATION ISSUES
· Courts
conducting “record reviews” of land use decisions should exercise judicial
restraint, particularly with respect
to agency findings of fact on evidentiary matters, and should not allow the record to be supplemented with additional
substantive evidence on appeal,
or take other actions that would usurp the traditional authority of local
government in the land use approval process. The Guidebook would broadly allow
supplementation of the record by reviewing courts, a dangerous precedent as it
would make the court – not the local government – the final decisionmaker in
land use cases.
· The most objectionable provision is
Optional Section 10‑613(1)(d), which states that a reviewing court “may
supplement the record with additional evidence” if it relates to “matters
indispensable to the equitable disposition of the appeal.” This is an open-ended invitation to abuse.
· Treatise
writers and court decisions have narrowly construed the role of courts on
judicial review.
Ø “The
local government, not the court, should be the final decision-maker in land use
cases. Generally, the judge’s role in land use litigation is “to provide a
forum for serious and disinterested review of the issues, sharply limited in
scope but independent of the immediate pressures which often play upon the
legislative and administrative decision-making processes.” Williams, American Land Planning Law § 4.05 at 100 (1988 Revision)
(emphasis added).
Ø Historically, reviewing courts have
emulated the Uniform Administrative Procedure Act by limiting their review of
an agency action to the question of whether that action was arbitrary,
capricious, unreasonable or illegal. Where the agency record is inadequate to
support its action, the proper practice is to remand the matter to the agency
for rehearing and redetermination. Carbone
v. Weehawken Township Planning Bd., 421
A.2d 144 (N.J. Super. 1980). See also,
Yokely’s Law of Subdivisions § 69(c)
(2d ed. 1981). See also, Kenneth H.
Young, Anderson’s American Law of Zoning
§27.29 at 605 (4th ed. 1997):
(“Reviewing courts say they are not superzoning boards and that they
will not weigh the evidence.”)
· These
authorities and numerous other reported cases reflect the overwhelming
consensus that an appellate court or a trial court should not be
second-guessing an administrative finding.
Ø Federal Circuit
SFK USA INC. v. United States,
No. 00-1305, 2001 WL 567509 (Fed. Cir. May 25, 2001) (Where an administrative
agency defends its decision before reviewing court on the grounds it previously
articulated, the court’s obligation is clear:
it reviews the agency’s decision under Administrative Procedure Act (APA)
and any other applicable law, and based on its decision on the merits, it
affirms or reverses, with or without a remand.
5 U.S.C.A. § 551 et seq.);
Ø State Courts
Numerous state courts, including courts in California, Connecticut,
Maryland and Pennsylvania, hold that the scope of judicial review is narrow;
that remand is the appropriate remedy when an agency has applied the wrong
legal standard; and that the court should not substitute its judgment for that
of the agency.
RECOMMENDED SOLUTION: Delete optional § 10-613(1)(d) and §
10-613(2) as authority for a court to supplement the record.
Sanctions for Inconsistency and Lack of
Periodic Review
The desire for some “stick” to compel local governments to
comply with state statutes regarding consistency of regulations with plans and
for periodic reviews of plans and regulations is understandable. However, I
have made known my opinion on several occasions that the sticks
proposed—voiding and loss of the presumption of reasonableness of local land
development regulations—are poor ones. This
approach unfairly jeopardizes the status of development approvals already
issued or under review, threatens the stability of the land development
process, and introduces unacceptable risk into development financing.
LEGAL ANALYSIS OF SANCTION PROVISIONS
· Unwise
sanctions are imposed for failure of local governments to timely meet statutory
milestones, i.e., failure to:
Ø adopt regulations consistent with the comprehensive plan (§ 8-104);
Ø review development regulations (§ 8-107);
Ø update development standards (§ 8-401); and
Ø record
the comprehensive plan and regulations in the GIS Index (§ 15-202).
· Missing
these milestones has the effect of making local government regulations or
comprehensive plans “void,” “voidable,” “not effective;” or subject to losing their “presumption of
reasonableness.” These are strong terms with serious legal implications
that can place the regulatory framework
in legal limbo and undermine the process by which land development is reviewed
and financed. The following statements illustrate why.
Ø “We recognize the uncertainty and
possible chaos that might accompany invalidation of the County’s existing
zoning scheme.” Pennington County v.
Moore, 525 N.W.2d 257, 260, n.3 (S.D. 1994).
Ø Void conditions are subject to
collateral attack at any time. Elkhart County Bd. of Zoning Appeals v.
Earthmovers, Inc., 631 N.E.2d 927, 931 (Ind. Ct. App. 1994); Sitkowski v. Zoning Bd. of Adjustment of
Borough of Lavalette, 569 A.2d 837 (N.J. Super. Ct. App. Div. 1990).
Ø Avoidable provision is “valid until annulled
and is “capable of being affirmed or rejected at the option of one of the
parties.” Black’s Law Dictionary 1569 (1979).
Ø “The importance of the presumption [of
validity] is that it formally fixes the responsibility for planning policy in
the legislature, and prompts a reviewing court to exercise restraint. 1 Anderson’s American Law of Zoning § 3.13 at 117 (4th ed. 1996).
Ø Ching
v. San Francisco Bd. of Permit Appeals (Harsch Inv. Corp.), 60 Cal. App.
4th 888 (Cal. Ct. App. 1998) (statute imposed 90-day limitations period for
attacking a local zoning decision).
“The clear legislative
intent of this statute is to establish a short limitations period in order to give governmental zoning decisions
certainty, permitting them to take effect quickly and giving property owners
the necessary confidence to proceed with approved projects.” Id. at 893. (Emphasis added.)
· The October 2001 Draft has addressed
these concerns with respect to Section 8-107.
However, the same defects in
Sections 8-104, 8-401, and 15-202 remain unaddressed.
RECOMMENDED SOLUTION: The section
entitled Consistency of Land Development Regulations with Local Comprehensive
Plan states that actions not consistent with the comprehensive plan shall be
voidable. This section should not provide that a failure to
comply with timeframes for updating comprehensive plans will affect the
validity of any land development regulation or land use action of the local
government.
The Section on Uniform Development Standards should not
provide that the failure of state planning agencies to conduct a timely general
review and report of uniform development standards will result in the standards
loosing their presumption reasonableness.
This section should state that failure to file a timely report as
required by this section shall not
affect the validity or presumption of reasonableness of existing uniform development
standards, nor of permits issued pursuant to such standards.
Section 15-202 (Recordation Requirements) should not
suggest that the failure to comply with recording requirements will render
comprehensive plan, subplans, and land development regulations “not effective.”
Instead, this section should state that the failure to comply with the recording
requirements of this Chapter shall not affect the validity, effectiveness or
presumption of correctness of any plan or land development regulation.
Exhaustion of Remedies
An essential element of smart process is a means of
establishing when the approval process has run its full course and a land
development decision is final. If the decision process is open-ended and lacks
closure, then it is also unpredictable. Unpredictability adds delay and risk,
and the costs associated with risk and delay are ultimately paid by consumers
as well as by taxpayers.
I applaud the authors of the Guidebook for the needed and
progressive reform proposed in Section 10-603 on the finality of land use
decisions. Unfortunately, this important reform is contradicted and negated by
the provisions of Section 10-604, Exhaustion of Remedies. To support the
provisions on finality the Guidebook should have provided here for streamlined qualification
for appeals and made clear that in normal circumstances an applicant need only
apply for remedies that are actually available. The Guidebook also fails to
consider and include among its criteria for finality important guidelines from
the Supreme Court’s recent decision in
Palazzolo v. Rhode Island.
LEGAL ANALYSIS OF
ADMINISTRATIVE EXHAUSTION
· The
well-conceived ripeness reforms (§§ 10-201, 10-202, 10‑203, 10-210, and
10-603) may have been undone by overly complex requirements for exhaustion of
remedies. The Model requires an applicant to exhaust three additional remedies after
the initial agency decision before seeking judicial review (§ 10-604). (This has always been a “ripe” area for
abuse of process.)
Ø Unless the administrative remedy is
futile or inadequate, applicants must:
– appeal for administrative review
(§ 10-209);
– apply for a conditional use
(§ 10-502); and
– seek a variance (§ 10-503).
Ø Exhaustion
of these “remedies” could add years to the review process and effectively gut
the ripeness reforms. This, on top of a growing trend in state courts to
apply the draconian ripeness standards used in federal courts. See
Daniel R. Mandelker, Land Use Law
§ 8.08.10 (4th ed. & Supp. 2000).
Professor Mandelker, although a self-described “regulatory
hawk”, has long been a critic of abusive practices in agencies and courts
regarding the finality doctrine as espoused in Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172 (1985). See Testimony of Daniel R. Mandelker
regarding HR 1534 before the House Judiciary Committee, Subcommittee on Courts
and Intellectual Property, September 25, 1997. See also Amicus Brief of
the American Planning Association in Suitum
v. Tahoe Regional Planning Agency, 117 S. Ct. 1659 (1997). This portion of
APA’s brief was later “repudiated” by APA in its testimony to Congress opposing
HR 1534. See letter of September 16,
1997, from APA President, Eric Damian Kelly, to the Honorable Henry J. Hyde,
Chair, House Judiciary Committee. These practices have made it virtually
impossible for Fifth Amendment Takings claimants to gain access to federal
courts. See J. Delaney and D.
Desiderio, Who Will Clean Up The Ripeness
Mess? A Call for Reform so Takings
Plaintiffs Can Enter the Federal Courthouse, 13 Urb. Law. 195 (1999).
Ø Public
agency abuse of the land use review process has long been a concern. An excellent discussion and compilation of
some of the numerous commentaries on this serious problem may be found in the
June 2001 issue of Zoning and Planning
Law Report. See Rodney L. Cobb, Land
Use Law: Marred by Public Agency Abuse, Zoning
and Planning Law Report, Vol. 24, No. 6.
· Palazzolo: The Supreme Court’s Latest Statement on Ripeness
In Palazzolo v. Rhode Island, 121 S.Ct.
2448 (2001), which is not mentioned in the October 2001 Draft’s commentary on
Section 10-604, six members of the United States Supreme Court provided important
direction on the issue of ripeness. The Court stated:
“While a landowner must
give a land-use authority an opportunity to exercise its discretion, once it
becomes clear that the agency lacks the discretion to permit any development,
or the permissible uses of the property are known to a reasonable degree of
certainty, a takings claim is likely to have ripened.”
RECOMMENDED SOLUTION: At the final meeting of the Directorate, I
understood that the final draft would be amended to add that an applicant should
not have to seek approval of a conditional use when such a use would not be
practical for the applicant. Instead, Section 10-604(1) uses the more ambiguous
term “applicable” regarding both conditional uses and variances. The
explanatory language states that “if there is no conditional use provision
applicable to the property” as zoned, the applicant does not have to seek a
conditional use before commencing judicial review. This is not the problem I
was concerned about. For example, an applicant seeking approval of a 10-lot
residential subdivision would not be interested in having to file for a group
home or medical clinic—even if available
in the zoning ordinance. To avoid abuse and unnecessary filing of applications,
as discussed in Palazzolo, Section
10-604(1) should be revised to delete the requirement to seek approval
of a conditional use (as provided in § 10-502) and to limit the exhaustion
requirement to a practical remedy,
which might be either an appeal for
administrative review (§ 10-209) or filing for a variance
(§ 10-503).
Moratoria
Moratoria are
indicators of planning failure. Clearly, absent some catastrophe or
unforeseeable event, a reasonable planning process should not lead to a pass
where growth is brought to a stop by fiat. But, catastrophes and unforeseen
events do occur from time to time, and the law in most states allows for
temporary moratoria to protect public health and safety. However, when the
difficulty arises because of a failure to plan or inadequate planning, those
responsible should not escape the consequences of their failure. Nor should
the building industry and housing consumers suffer from the failure of others
to do their jobs properly.
It is recognized
that local communities are often challenged by the impacts of growth, particularly
impacts on infrastructure. That is why it is so important to plan for infrastructure
at the same time the community is planning for the expansion of population,
jobs, and housing. While it is one thing to create a plan for the provision
of public facilities, it is another thing to finance and implement that plan.
Not every community does a good job getting infrastructure built. Other
spending priorities and pressure to keep taxes low make it difficult to keep
up with infrastructure demands. Nonetheless,
getting infrastructure built is a public sector responsibility. It is too easy
to use moratoria to escape this responsibility.
The October 2001 draft deletes the provisions in the
Guidebook that would have permitted moratoria to be imposed on the grounds of
“any significant threat to the… environment,” and in lieu thereof inserts
protection of the “general welfare” as an additional ground for imposing
moratoria. While “general welfare” is an improvement over singling out “the
environment” as one element of public policy that should be allowed to trump
other pressing public needs, such as affordable housing and jobs, it is a broad
standard that can be used to allow moratoria to be imposed for virtually any
reason. At the final Directorate meeting, it was agreed that the “or the
environment” standard would be excised wherever it appeared in the Guidebook.
This has apparently not been done. See, e.g., optional §8-604(4), which was
the section under discussion, let alone other possible sections in the
Guidebook.
The Guidebook also permits moratoria while the government
prepares, adopts or amends comprehensive plans, historic preservation plans or
land development regulations, absent any looming threat to public health or
safety (Section 8-604 (3)(b) and (c)). The provisions for potentially
indefinite, open-ended moratoria (see for e.g., Sections 8-604(3)(b) under
Alternative 2, 8-604(8) and 8-604(10)) are inappropriate. Moratoria should be
for a definite, fixed period, in no case to exceed one year.
Moratoria are serious, last-resort measures that should be
judiciously applied. When the legal criteria for moratoria are difficult to
satisfy, an incentive is created to plan more carefully. The whole point of the
Growing Smart exercise is to change and improve the level of planning, and
incentives have a role in bringing that about.
Accordingly, a
strict standard of “danger to public health and safety” that must be
established before a moratorium may be declared would be fitting. This
standard, observed by several states, reflects a public policy that moratoria
are serious matters not to be used as a convenience, but as a last resort.
While a moratorium may stop the issuance of development permits, it has no
effect on housing demand. Its effect may thus be to direct growth outside the
boundaries of the government that declared the moratorium and thereby contribute
to sprawl. For this reason, states may wish to limit local governments’
power to use this tool by adopting a strict standard. In addition, states may wish to adopt a strict standard to
ensure that local governments take seriously their responsibility to plan for
and build infrastructure. If the standards for use of moratoria are set too
low, then there is less incentive to do a good job of planning. With proper planning, most conditions that
might give rise to use of moratoria should be avoidable. In rare cases, where
even good planning cannot prevent an unforeseen danger to public health and
safety, the statutory language in this alternative would permit limited use of
a moratorium.
LEGAL ANALYSIS OF MORATORIA PROVISIONS
The Guidebook authorizes moratoria on a virtual open-ended basis (up to
1.5 years or more), and “planning moratoria” (up to 2 years or more) are also
authorized (§ 8-604). In addition, no
meaningful restrictions on moratoria are provided in designated growth
areas.
· In designated Smart Growth areas,
moratoria should be:
Ø limited
to circumstances in which a serious threat to public health or safety
exists;
Ø limited as to duration; and
Ø the government entity imposing the
moratorium should be required to immediately address and resolve the problems
giving rise to the moratorium. See Westwood Forest Estates v. Village of S.
Nyack, 244 N.E.2d 700 (N.Y. 1969).
· Moratoria are not part of the
planning and zoning process. Rather, they are often the result of a failure to
properly plan.
Ø “Planning moratoria” should generally be
prohibited or severely limited.
“Even construing the
provisions of the [enabling act] liberally, we find that the power to enact a
zoning ordinance, for whatever purpose, does not necessarily include the power
to suspend a valid zoning ordinance to the prejudice of a land owner... More significantly, the power to suspend
land development has historically been viewed in this Commonwealth as a power
distinct from and not incidental to any power to regulate land development. Accordingly,
as the [enabling act] is silent regarding land planning through the temporary
suspension of development, we decline to condone a municipality’s exercise of
such power.” Naylor v. Township of Hellam, 773 A.2d 770 (Pa. 2001) (emphasis
added).
· Moratoria raise takings issues as
well. See D.R. Mandelker and J.M.
Payne, Planning and Control of
Development, Cases and Materials 642 (5th ed. 2001).
· Significantly, on June 28, 2001, the
United States Supreme Court granted certiorari in the case of Tahoe-Sierra
Preservation Council v. Tahoe Regional Planning Agency, 228 F.3d 998
(9th Cir. 2000), cert. granted, 121
S.Ct. 2859, 150 L. Ed. 2d 749 (U.S. June 28, 2001). Certiorari was granted on
the question “[w]hether the Court of Appeals properly determined that a
temporary moratorium on land development does not a constitute a taking of
property requiring compensation under the takings clause of the United States
Constitution.”
RECOMMENDED SOLUTION:
Delete Alternative 1 in § 8-604(3), as it would authorize
moratoria to be imposed for virtually any reason.
Delete Alternative 2 in § 8-604(3), particularly §§
8-604(3)(b) and (c), allowing planning moratoria of 2 years (or more). Planning moratoria should not be allowed,
and if allowed, should never exceed
six months.
Revise § 8-604(8) to limit extensions of moratoria -
other than planning moratoria, which should not be extended - to
not more than one six-month period, and only upon a finding of “compelling
need” as defined in § 8-604 Alternatives (2)(d) and (3)(b).
Delete § 8-604(10)(a) and (b) which allow state or
local governments to impose additional “temporary moratoria” upon already
issued permits or to adopt “temporary policies” against approving zoning map
amendments. Alternatively, these additional restrictions should only be imposed
upon a finding of “compelling need” as defined in §§ 8-604(2)(d) and
(3)(b).
Vested Right to Develop
Traditional late
vesting rules in effect in most states are out of date and unfair. These require issuance of a building permit
and commencement of construction (or other acts of reliance) in order for
rights to vest. Late vesting rules do not recognize the complexity of the
modern regulatory environment, or the difference between a single building
project on the one hand, and long-term land development or multi-building
projects on the other. Statutory reform is urgently needed in this area and the
Guidebook has taken steps to provide it. Vesting of development rights should
be recognized earlier in the process,
such as at the time of subdivision or site plan approval, or at the time of
filing of a complete application for subdivision/site plan approval.
A legally vested right to develop land is essential to the
stability of development pro-cesses and real estate markets. The Guidebook, in
Section 8-501, provides two alternatives. The first alternative is a vesting
model that establishes a vested right to develop (which includes design,
planning and preparation of the land for development, as well as construction)
as soon as a complete development application is filed. The second alternative
has been modified from the previous second alternative that required the
issuance of a permit and “substantial
and visible construction” to one that allows vesting based upon “significant
and ascertainable development” pursuant to a development permit. This is much
more equitable than the original second alternative since it appears to
recognize expenditures (and other acts of reliance) based on the development of the property, rather
than merely on construction of one or more buildings. The development process,
from design to approval to construction, is significantly more complex today
than it was fifty years ago.
Although the proposed first alternative allowing vesting to occur upon
submission of a complete application is laudable and is recognized in some
states, it may be more reform than some other states are willing to undertake.
Thus, the second alternative proposed in the October 2001 Draft is also
appropriate if it is interpreted as
recognizing vested rights based upon development
work pursuant to appropriate approvals, rather than upon construction of a
building or buildings pursuant to a building permit. (See Legal Analysis.)
LEGAL ANALYSIS OF VESTING PROVISIONS
· In
today’s world, the land use regulatory process has become increasingly elongated
and complex, with environmental permitting often overlaying the traditional
review process, regulations proliferating, more reviewing agencies in the mix,
and more public hearings. All of these
factors, and the increasing uncertainty that accompanies them, have led to a
serious problem, particularly for long-term, multi-building projects, which
must receive many development approvals before the first building permit is
obtained. The design and approval
phases of any development, particularly one which involves multiple buildings,
is time consuming and expensive. Before a single footing is poured, architects
and experts must be hired, attorneys retained, engineering started, a series of
regulatory systems navigated, equipment leased, materials ordered, financing
arranged and site development work commenced. Thus, it is appropriate that
“development” activity pursuant to government approvals, and not merely
“construction” of a building or buildings pursuant to a building permit, be the
criterion for recognizing vested rights.
· However, it must be noted that the
Guidebook’s definition of “development permit” lists a number of approvals, including a “building permit” (§
10-101), could be interpreted to apply solely to a building permit. If this
were to be the interpretation, the
language would have the exact opposite effect of what was intended,
which was to suggest an early vesting rule that recognizes the huge expense and
commitments required to prepare a development plan and proposal. Thus, the
revised second alternative in Section 8-501, if it were to be interpreted to be
applicable only to a building permit, could also be construed as authorizing a
late vesting rule -
similar to the common law vesting rule in effect in approximately 30 states - that
would not confer vested status on a project until after a building permit has been issued and significant and ascertainable
construction thereunder has occurred.
This would be a draconian imposition of the rule in today’s
multi-layered regulatory environment because it ignores the often numerous
development approvals that a project may have previously received and implemented.
If applied in this manner, the revised section relating vested status to
significant and ascertainable development pursuant to a development permit
would not affect meaningful reform and instead would only embalm the status
quo. (Unfortunately, the Guidebook’s definition of “development permit” does not
include preliminary subdivision plans.)
· Approximately 12 states have enacted
vesting laws, several of which recognize one’s right to proceed with
development under the law in effect at the time of approval of a site-specific
application, such as a preliminary subdivision plan. Other states’ laws (e.g., Connecticut) allow vesting even
earlier, such as at the time of submission of the initial development
application. Both of these approaches are reasonable.
· Maryland is cited in the Guidebook
as a primary source of the late vesting rule, which is as it should be, since
Maryland’s “very late” vesting rule is among the most inflexible in the
country. Indeed, Maryland courts have not recognized vested rights under this
rule even
in circumstances where the landowner’s failure to acquire the requisite
building permit and commence construction is the result of previously adjudicated
or acknowledged unlawful conduct of the government. See, e.g., Sycamore Realty Co. Inc. v.
People’s Counsel of Baltimore County, 684 A.2d 1331 (Md. 1996); Rockville Fuel & Feed Co. v. Board of
Appeals, 291 A.2d 672 (Md. 1972).
RECOMMENDED
SOLUTION: Retain Alternative 1
and revise Alternative 2 to clarify that vesting upon commencement of
ascertainable development does not require that the project must have received
a building permit. Amend the definition of “development permit” in Section
10-101 to include preliminary subdivision plans or plats. Commonly, most of the
detailed (and expensive) engineering design work must be accomplished in
preparation at the preliminary plat stage.
Third-party
Initiated Zoning Petitions
I strongly object
to subsections 8-103(1)(d) and (e), which allow new land development regulations
(and zoning changes) to be initiated either by petition of owners of record
lots constituting “51% of the area that is to be the subject of the proposed
ordinance,” or by petition of a stated minimum number of “bona fide adult residents
of the local government [sic].” At the final Directorate meeting, it was
indicated that the text would include a statement that petitions of this nature
should be disfavored. The language that has been added does not adequately
convey that the initiative process is extremely destabilizing to orderly
planning and social equity and undermines settled planning and zoning
decisions. It is all the more so when
it can be accomplished by a mere plebiscite of a neighborhood. Neighborhood plebiscites to effect zoning
changes are unlawful in many states. See, for example, Benner v. Tribbit, 57 A.2d 346 (Md. 1948). There is an excellent
discussion of this problem in the case of Township
of Sparta v. Spillane, 312 A.2d 154 (N.J. Super. 1973). The fact that a
minority of states authorizes the initiative process through their constitutions
or state enabling laws by no means establishes the wisdom of this process, or
its value in achieving the goals of Smart Growth. It is helpful that the final
draft has been amended to recognize this point.
LEGAL ANALYSIS OF THIRD PARTY ZONING PETITIONS
· The Guidebook acknowledges that some
states authorize land development regulations to be initiated:
Ø By
51% or more of record lot owners “in the area that is to be the subject of the
proposed ordinance” (§ 8-103(1)(d)), or
Ø By
“petition of a minimum percentage of bona fide adult residents” of the jurisdiction
(§ 8-103(1)(e)).
· Allowing
local land use regulations to be enacted
via voter initiative or by a neighborhood plebiscite can
completely destabilize the land use regulatory pro-cess and promote exclusionary
zoning. The fact that the local legislative body would make the final
decision regarding enactment of the proposed legislation does not ameliorate
the mob hysteria that often accompanies such initiatives. See, e.g., City of Eastlake v. Forest City Enterprises, 426 U.S. 668 (1976), United States v. City of Black Jack, 508
F.2d 1179 (8th Cir. 1974), cert
den., 422 U.S. 1042 (1975). Neighborhood plebiscites are often used to
affect the civil rights or property rights of others.
· Of course, initiatives that are
authorized by State Constitutions are likely beyond the reach of remedial
legislation. However, the Model should not encourage the use of initiatives as they have been almost
universally criticized as antithetical to good governance and good planning.
See, e.g., David Broder, Democracy
Derailed – Initiative Campaigns and the Power of Money (Harcourt) (author
is a senior columnist for the Washington
Post).
· Criticism
of the initiative as a tool for
planning and zoning has been particularly harsh and widespread. See, e.g.,
Nicholas M. Kublicki, Land Use by, for,
and of the People: Problems with the Application of Initiatives and Referenda
to the Zoning Process, 19 Pepp.
L. Rev. 99, at 104, 105, 155, 157-158 (1991).
· Courts
have been equally suspicious of the initiative and referendum. See, for example:
Township of Sparta v. Spillane, 321 A.2d 154, 157 (N.J. Super.
1973) (“Among other things, the social,
economic, and physical characteristics of the community should be considered.
The achievement of these goals might well be jeopardized by piecemeal attacks
on the zoning ordinances if referenda were permissible for review of any
amendment. Sporadic attacks on a municipality’s comprehensive plan would tend
to fragment zoning without any overriding concept.”). To the same effect
are: Benner v. Tribbit, 57 A.2d 346, 353 (Md. 1948); Leonard v. City of Bothell, 557 P.2d
1306, 1309-10 (Wash. 1976); City of
Scottsdale v. Superior Court, 439 P.2d 290, 293 (Ariz. 1968).
RECOMMENDED SOLUTION: Delete § 8-103(1)(d)
authorizing ordinance text and map amendments to be “initiated” by 51 percent
of the owners of lots of record in “the area” that is to be the subject of the
proposed ordinance, and replace it with a new § 8-103(1)(d), which would allow
owners of lots of record to apply to
the local government legislature for regulatory relief in situations affecting
their property or the general community. The local government would retain the
discretion whether to accept or consider the amendment application.
Of course, a landowner’s right to seek redress of a
site-specific problem through legislation (such as a zoning text amendment)
would not absolve the local government from evaluating the proposed amendment
on the basis of whether it would promote the health, safety, and welfare of the
general public.
Similarly, optional Section 8-103(1)(e), authorizing a
specified percentage of adult residents of the local government to petition for
ordinance amendments, should be deleted. If a single category, or a group of
citizens, have a meritorious case for amending an ordinance, they can pursue
it under §§ 8-103(1)(a), (b) and (c) by convincing their legislative body or
planning agency of the merits of their proposal. If they are dissatisfied with
the outcome, they can voice their displeasure in the next election.
Designation of Critical and Sensitive
Areas
The Guidebook
defines “critical and sensitive areas” as those areas that contain or constitute
natural resources sensitive to excessive or inappropriate development. (Section
9-101(3)(c)). This definition is
extremely broad. All areas can contain or constitute some natural resource.
Certainly, any undeveloped property could easily be categorized as containing
or constituting a “natural resource.” In fact, no definition of “natural
resource is provided within the text. Furthermore, the Guidebook definition
refers to “excessive or inappropriate development” but does not attempt to
define what these terms mean. Without a clear, concise definition, any
development could be identified as “excessive or inappropriate.”
Such lack of clarity or of any definition altogether could easily allow a local
government to restrict any type of development in any area.
The Guidebook language provides that local governments can
opt out of adopting regulations for critical/sensitive areas if all
critical/sensitive areas in their jurisdiction are designated as areas of
“state” critical concern (Section
9-101(1)). However, just as importantly, the local government should be
able to avoid adopting regulations for critical/ sensitive areas that have
been designated as “critical” by the Federal government. For example, the U.S. Endangered Species Act
of 1973 (ESA) requires the Federal government to designate “critical habitat”
for endangered or threatened species. The ESA provides extensive protection of
“critical habitat.” The ESA requires an applicant to apply for a permit from
the Fish and Wildlife Service (FWS) or National Marine Fisheries Service (NMFS)
if their action will likely impact an endangered or threatened species (which
would likely occur in an area designated as critical habitat). The Act also
requires projects within critical habitat, needing a Federal permit, approval
or funding to go through a consultation process with FWS or NMFS. If the
outcome of the consultation determines that the activity will likely adversely
affect the survival and recovery of the species, the applicant will be required
to minimize or mitigate the impacts of the activity.
RECOMMENDED SOLUTION: Provide a definition for “natural resources”
similar to the following: natural resources are plants, animals, or useful
minerals indigenous to a specific site that provide benefits not only to the
owner of the site but to the public generally and that the exploitation of
which would have a detrimental effect on the public welfare.
Amend the definition of “critical and sensitive areas” to
include: lands and/or water bodies containing natural resources and/or which
are themselves natural resources the exploitation of which would cause a threat
to the public health, safety, or welfare.
Provide a definition for “excessive or inappropriate
development” similar to the following:
excessive or inappropriate development is grading, construction, or site
disturbance that is unlawful or not in compliance with duly adopted regulations
or not in compliance with duly issued permits.
Provide in Section 9-101(1) and/or in Section 7-202 (5) an
opt-out provision for lands designated as “critical” by the federal government.
CONCLUSION
While many of my comments have been frankly critical,
hopefully they will be perceived as constructive in their intent. Stuart Meck,
his able staff, and important outside consultants have produced an impressive
and very useful piece of work. The thoughtful and diligent work of a dedicated
Directorate who read and commented extensively and constructively on literally
thousands of pages of text is not to be overlooked. That the Guidebook can and
should be made better is not a detraction of the work as it stands, but rather
on the broad scope and great complexity of the undertaking. I consider it a
privilege and a great learning opportunity to have been allowed to work on the
Growing Smart Directorate.
Paul
S. Barru