Platt Chap 7

More on the social/legal context of land use regulation

Regulatory actions on land need to be:

Gov’t needs to be prepared with the burden of proof (especially in down-zonings, exactions and impact fees) even if legal tradition suggest otherwise, or planning will get into increasing trouble with society

Local government’s major role in shaping land use is through zoning.

Like many property, land, and planning basics, zoning has European roots.

Also linked and based on nuisance doctrines, in this case applied very specifically to, for example, undesirable land uses (e.g., banned bsuinesses), and impact of one land use on adjacent land uses (transboundary air light or noise pollution).

In US also emerged as urban zoning in response to urban deterioration of the 19^th century, and the "City Beautiful" movement.

Zoning relies on the acceptable power of the state to regulate the type and intensity of land use in spatial context.

Test case was Village of Euclid vs. Ambler Realty, in 1926, where court upheld zoning and now often referred to as "Euclidian Zoning"

Zoning often regulates:

Types typically:

And may include some natural resource activities like mining and forestry

Important to note that zoning per se in US is mostly inside urbanized/annexed areas, not generally applied to rural areas. Very few counties in West, for example, have county-wide zoning outside of municipal areas.

Cummulative vs. non-cummulative

May also include "overlay" zones (this word comes from original practice of creating plastic/mylar overlays sheets to place on top of zoning maps so you could see what areas had to meet overlay standards in addition to standard zoning) for special land use desginations and standards in addition to zoning (e.g., commercial areas may have specific lighting requirements).

Zoning Map plus Text equals zoning documentation

Because zoning is a rather rigid land use tool, its application traditionally includes flexibilties:

The Plan (Steiner reading)

Steiner’s chapter is a comprehensive look at land use planning tools, organized around the power of local government to regulate and tax. I add it to the course because it covers the waterfront (it does overlap with Platt a bit), but here are the main points:

Besides Zoning per se (covered by Platt and in first part of Steiner), other tools:

Planned Unit Developments (PUDs): you’ll hear a lot about these in any developing area (e.g., along E-470), and the name implies an integrated development where the developer does the plan (under local gov guidelines) including everything from streets to buildings. Local goverment signs off and gives the developer more freedom on things like setbacks, uses, etc., Less demand on government for planning and oversight, and larger areas developed often in mixed use manner. Often does not meet typical zoning designation, and a good way to break mixed use into non-cumulative zones.

Other non-zoning tools include:

• Performance standards: Often just an add-on to zoning, but can also be sued to shape land use w/o restrictive zoning. E.g., various uses are allowed if they meet some key performance standards (e.g., no septic discharge, etc.).
• Design Guidelines and Controls: often part of performance standards, mostly architectural and landscape requirements that then allow various uses, as along as the guidelines are met.
• Environmental protections: several local planning tools derive authority and logic from state and federal environmental protection goals, like wetlands, floodplain regulations, water pollution, and species protection.
• Historic : this can start to affect land use in a bigger way as it is expanded from site to neighborhoods and districts. Usually federal-state-local collaboration, often with real impacts on development patterns in the designated area.
• Sub-division regulations: these are like PUD regs, specifying in detail how suburban-density housing developments will be laid out and what land uses are allowed. There has been lots of criticism of these (and other zoning) for being overly restrictive and single-use, not allowing, for example, commercial inside a residential subdiv , and for fostering a cookie-cutter look to the American landscape.
• Building codes: Ostensibly these would have less to do with overall land sue patterns, but certain codes types can affect density, and some communities have instituted codes like energy conservation (Davis, CA) that affect spacing, density, etc.

Steiner also covers land sue effects of government actions like condemnation and exactions. The key here is that, while generally limited in actual practice, government has powerful tools tot ake land and put it some particular use. The history of this usually entails stories about homes being pushed aside for highways. But it has also happened to create national parks (Shenendoah), and military bases.

More common approach is for local government to aks for and receive dedications like land for a school or flood water retention, that are linked directly to the impacts of the development.

Transfer of development rights: be sure to read this seciton in both readings (Platt and Steiner). And recognize a key element: TDR can only work with there is firm zoning, even the possibility of down-zoning, so that density units are desired and marketable. Platt argues that developers wanting increased density don’t bother to buy them in TDR programs because more often than not they can get them thru the standard review/political process.

Purchase of Development Rights: instead of buying land outright (next topic), government and NGOs and private agents can buy and hold the "development right" to land. The title is obligated with easement language that forbids certain developments (often allows, say, a couple of houses on a farm or ranch, but no general sub-division). Like TDR, this most often works in the context of some solid land use planning and zoning, so that one can ascertain the value of the development right (not every parcel has the potential to be Vail), mostly for tax purposes.

Tax Incentives/Disincentives: Finally in we read about tax instruments (in both Steiner and Platt). Since govt’s can tax property, they can structure taxes to achieve certain land use patterns. Platt mentions low taxes for agricultural land (tends to help it stay in agriculture). Steiner also mentions Enterprise Zones where taxes are cut if commercial/industrial developers build projects. And tax-increment financing, in which developer gets taxes that their development added back for certain applications (e.g., landscaping).

Under the "other approaches" Platt begins with sub-division regulations and exactions and impact fees. We won’t bother to go into sub-div regs, but exactions and impact fees are important aspects of land use planning. The goal here is to have land owners and developers pay for or defray the effects of their development on government services. The most common is requiring a sub-div developer to set aside land for a school. The sub-div creates the need for the school, and the set-aside makes some sense.

We’ll pay attention mostly to Growth Management, as it affects land use more broadly

Question: Does "Growth Management" = slowing growth or growth limits?

Growth management generally affects:

• Shape, type and location of land uses/development (density, pattern, etc.)
• Timing and progress of development in a jurisdiction
• Total amount of development (DUs; population; square footage; etc.)

Platt, being a lawyer and a geographer, examines this first as a legal quesiyton, about the power of govt to manage growth, and tells us three cases on which current growth management actions are based:

Ramapo, NY: decided growth was too fast, not always in palces desired; so set a rate at which city would provide infrastruture to new development, and where. This timing was seen as a slow-down/limit by some development interests and they sued, and lost. The court found that the jurisdiction, which is required by statute to provide services (e.g., a house cannot be occupied unless it has water and sewer connections), can reasonably set the pace and shape of growth so as to allow "concurrency" between development and infrastructure. The court mostly saw this, I think, as a health and safety issue (e.g., sidewalks for the kids to walk to school), and those have always been solid ground for land use regulation. Platt hints at the end, with quote from Fred Bosselman, that plans like this might be growth limits in "sheep’s clothing" as we discussed in class.

Petaluma, CA went further, though, and set a future total population goal backed by limiting number of development permits. Builders sued and the district court found the plan to limit personal freedoms by limiting housing in the Bay Area. On appeal, though, the 9^th Circuit Court of Appeals focused only on Petaluma and decided that communities might limit growth if they wish, as long as the plan was not outright discriminatory----ususally menaing that it had the goal of limiting some segments of the housing market. Petaluma had anticipated this and designated some of the available permits for lower income housing (they had a good planner).

Livermore, CA placed a moratorium on new development until it could get services up to speed; the court had more trouble with a moratorium, but the court upheld the moratorium based on a test that the impacts outside the jurisdiction on equity of the housing market was assess and not major. This set up a judicial test for future growth limits.

Platt also discuses TDR here---but we already went over it, be sure to recognize Platt’s point that it only works in the context of firm zoning and subdivision limits.

Other ways to shape land uses:

Public Acquisition: local gov can buy land (by negotiation with willing sellers or by condemnation) and do with it as it pleases. Most cases include buying land to keep it out of development (thus a de facto limit on development, but this depends on how much land is still available), but sometimes land is bought for certain types of development. Finally, land is often given to local government (including some of Boulder’s open space). The title transfer in such cases may include a provision allowing current use to continue by the original owner and maybe their off-spring.

Private Conservation: a growing influence eon private land use and development is the rise of land trusts and other conservation organizations like The Nature Conservancy. They buy land and use it anyway they want as private land owners (TNC even bough land and gave it to the gov’t, but lately has focused on buying and managing land itself for conservation purposes).

Lasnd acquisition is mostly used for conserving open space and habitat. In both these cases above, the impact of land acquisition on broader land use patterns depends on the local market, development pressure, and the amount of land taken off the market.

Chap 10: State and Regional Land Use Programs

The "quiet revolution": more states taking back some of the land use authority devolved to local government.

Model for state programs:

Logic: the state should step in on otherwise local land use decisions when:

• Areas of special concern
• Large area developments
• Developments of regional benefits and costs/impacts)

But a few states have been more aggressive, establishing ion the 1970s something close to state-wide zoning and permitting for development. The state programs differ as to how cooperative with local government.

Hawaii (strong statewide zoning)

Oregon (UGBs, forest and ag land protection; local gov sets the UGB and ask for it to be enlarged as needed)

Vermont (state permit system for developments over a certain size, with demanding performance standards on water quality, etc.; a second law then required state and inter-jurisdictional cooperation in land use plans)

Vermont and Oregon had a strong element of protecting natural resource lands from residential or commercial development.

A few other states did this in the 1990s (Washington) with more or less strong land use oversight , and both AZ and CO had statewide Growth management Acts on the 2000 ballot (by citiien initiative) and both failed.

New Jersey Pinelands: with federal support the state passed legislation governing all development in a desifnated area based on the many values of the Pinelands. Required affected governments to participate in a binding Comprehensive Plan. Essentially a zoning plan, with TDR to compensate for the outright down-zoming. Strong and apparently well accepted by public and land owners.

Tahoe Regional Planning Agency: because the Tahoe Basin sits astride NV and CA this took both federal and state legislation. Goal was to regulate development so as to maintain a certain water quality in the lake (defined by clarity), which was designated in the legislation as a natural feature of national and statewide importance. TRPA has power over all development permits in the basin, and designated as the federal transportation funds outlet, so it also took on traffic and air pollution. In the news last year with Supreme Courrt case about a development permit moratorium TRPA set in the 1980s---court up-held it for same reasons as in Livermore and Ramapo.

This was mostly the purview of NGOs until the feds decoded to funnel all transportation funds (highway and mass transit) through designated Regional Councils of Governments (RCOGs)—e.g., DRCOG, comprised of all municipalities and counties in metro air pollution attainment areas. The Cogs do something close to land use planninhg, but not land use regulation. COGs created UGBs in both Denver and the Puget Sound, but these have had little effect on actual development and land use because the council members do not require themselves to follow the UGBs.

Agricultural land protection (preferred tax rates; T and PDR; ag taxing districts; ag zoning)

Floodplain, wetlands, etc. (see next chapter)