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State Land-Use ControlThis Chapter includes model legislation for: (1) siting state facilities; (2) designating areas of critical state concern; and (3) regulating developments of regional impact (DRIs), which are developments that have multi-jurisdictional impacts. The model legislation for siting state facilities proposes a uniform process by which state agencies would make decisions on the siting, expansion, or reduction of such facilities based on criteria either promulgated by a state planning agency or included in the statute. The siting process is to balance consideration of state and regional needs for services, accessible, efficient, and cost-effective delivery of such services, and the impacts of such facilities upon surrounding areas and communities. Through such a statute, the state would also ensure public participation in siting decisions. Under the area of critical state concern statute, the state identifies large tracts of land, both public and private, that are important to the environmental health of the state, or regions of the state, and carefully regulates development within those areas to avoid or minimize conflict with an environmental or natural resource or constraint, public facility or public investment, or historic or archaeological resource that would otherwise result. For the DRI model, two alternative regulatory structures are proposed that use review criteria promulgated by the state planning agency: (a) the host local government reviews DRIs that are proposed in its jurisdiction; or (b) the regional planning agency (or other agency as designated) reviews DRIs that have been referred to it by the host local government. Provisions for enforcement, amendments, development agreements, and appeals are also included in the model statute. Chapter OutlineSiting State Facilities5-101 Purpose Areas of Critical State Concern5-201 Purposes Developments of Regional Impact5-301 Statement of Purpose; Source of Authority Note 5 — A Note on New York City's "Fair-Share" Process Cross-References for Sections in Chapter 5Section No. Cross-Reference to Section No. 5-101 5-102 to 5-110, 6-603 5-201 5-202 to 5-214 5-301 4-102, 4-204, 4-204.1, 4-210, 5-302 to 5-315 Siting State FacilitiesThe state, in its capacity to provide for the needs of its citizens, has the power to site state facilities that contribute to the welfare of its citizens. Some state facilities, such as a new museum, office building, or courthouse, are typically hailed by the community receiving them. Others, such as a new hazardous waste treatment or storage facility, mental hospital, or vehicle depot, are generally not welcomed anywhere. Difficulty in siting a state facility occurs when community residents believe that the facility in question places an undesirable group within the community or when the facility houses a use that produces unpleasant or potentially dangerous environmental effects.[1] Types of State Facilities For the purposes of this Chapter, "state facility" refers to any type of land use or facility that the state may site, operate, or, in some instances, wholly or partially fund. The term is defined in the model statute, below, as follows: "State Facility" means a land use or facility that provides state services and whose location, significant expansion, or significant reduction in size is subject to the control and supervision by a state agency.... Examples of state facilities include, but shall not limited to the following: libraries, courthouses, recreation areas, group homes, recycling centers, hospitals, landfills, waste treatment centers, and airports. No land use or facility shall be considered a "state facility," however, unless it meets one of the following two criteria:
Listed on the following page are examples of state facilities, classified according to the degree of contention they tend to provoke. Of course, it is always difficult to generalize about an issue as sensitive as siting state facilities; what is manna to one community may undoubtedly be a poison pill to another. Siting Undesirable or Controversial Facilities While most citizens recognize the intrinsic need for undesirable or controversial facilities, few people want them located within their communities. These facilities, known also as Locally Unwanted Land Uses (LULUs) and Not In My Backyards (NIMBYs), are difficult for a state to site because local governments, community groups, and individual citizens usually oppose and fight their siting. Each thinks the facility should be located somewhere else.
In the past, undesirable state facilities were usually sited in communities where residents did not have the political power to stop their siting.[3] Generally, this meant that less affluent, minority neighborhoods bore the brunt of these sitings.[4] The overall impact of this trend was to make these communities even less desirable places in which to live and work. A problem, therefore, is how to achieve an "equitable" distribution of undesirable facilities. Equally important issues, however, are how to ensure appropriate design accommodations (e.g., landscaping and buffering) once the facility is sited and how to adjust/compensate for economic windfalls and wipeouts created by the siting. Addressing the first issue of equitable distribution, Law Professor Vicki Been has proposed three "fairness" criteria against which systems for siting or distributing controversial or unwanted land uses may be evaluated.[5] — Fairness in the pattern of distribution. This criteria requires that the benefits and burdens of state facilities be spread out across the state on a per capita or proportional basis.[6] — Fairness in the efficiency of the distribution. This criteria requires that progressive sitings be accomplished in order to eliminate past inequalities of the siting system. (Progressive sitings are those sitings that attempt to correct for past patterns of inequitable sitings.) For example, under this scenario, the practice of siting undesirable facilities in poor or minority neighborhoods would be stopped, and all future undesirable facilities would be sited in neighborhoods that currently have few or no undesirable facilities.[7] — Fairness in the procedure by which the distribution was effected. In order to make the siting process equitable to all parties involved, everyone must be on an equal footing during the process. To accomplish this goal, each community should be as likely as any other to be selected as a site for a potential facility. The process by which the state determines a site should be open and allow for community input. The state should also attempt to provide all interested parties with pertinent information upon which the siting decision will be based. In order to provide for more equality in siting, the state must also provide a framework that eliminates the effects of economic and political power.[8] As noted above, however, the focus of siting should not be on "equitable distribution" alone. In that vein, additional fairness criteria might also include: — Fairness in the award of benefits and compensation. A system of financial incentives and compensation might to created to offset any negative impacts of the siting and capture any economic windfalls. For example, an increasing number of communities are vying for state facilities like prisons and landfills that years ago most communities resoundingly rejected. Now, many localities are bidding for these facilities due to financial incentives associated with the siting, as well as job possibilities and residual economic growth for the community at large. — Fairness in implementing design standards. In many cases, siting a state facility is less a question of "where" the facility should be located (i.e., the site is chosen due to locational or functional characteristics of the facility, such as service areas or soil types) and more an issue of "how" the siting should accommodate the community in which it is placed.[9] Design standards, such as landscaping, buffering, and other screening requirements, will usually help lessen any negative impacts of the facility on its neighbors. Approaches to Siting Facilities There are many methods for siting state facilities that take into account, to varying degrees, the fairness criteria just delineated. These approaches include: (1) point systems, (2) lotteries, (3) auctions, and (4) the fair-share process, each of which is described below. In many cases, these techniques have not yet been implemented by any governmental units; instead, they are simply theoretical creations of commentators interested in promoting more equitable methods of siting state facilities, especially unwanted or controversial ones. Point Systems As its name suggests, a point system is a scheme that would assign points to facilities, based primarily on their undesirability.[10] Under a point system, each substate district would be assigned a number of points that must be "used up" by the district.[11] The state would begin the process by siting a facility in a particular district. If the district wanted to avoid the state-mandated site, it could bargain with other districts to exchange the proposed facility for one or more facilities of the same number of points. Transactions would be overseen by the state administrative body responsible for siting the facilities. The theory behind the point system is that districts will focus their energies on determining which facilities they would be willing to accept rather than trying to avoid all sitings.[12] A variation of this system would be to assign points to existing state facilities that are indicated on a map. In order to promote equity, future sitings would avoid those areas that already have a large number of facilities, or points. For example, a state might only consider site locations within those substate districts that have a point total of 20 or lower until all districts are within a few points of one another. At that time, all districts would once again be eligible for new facilities. Yet another variation of this system would be to include "desired" state facilities in the point allocation, thereby designing a system of trade-offs. For example, if a substate district wanted a new courthouse, it might have to accept two halfway houses. If the district decided it did not want the courthouse badly enough to accept the halfway houses, both facilities would go to another district.[13] There are a number of drawbacks to a point system. First, it may be difficult and/or unrealistic to believe that a consensus could be reached over the point values assigned. As described earlier, for different communities, a given type of facility could be either a bane or a boon. And, some facilities are site-dependent as their locations are not interchangeable. Also, in order for bargaining and trading to occur, several sitings must occur concurrently. Finally, an effective point system would require a sophisticated state agency to perform the sitings, coordinate the trades, and maintain the point bank.[14] Lotteries Under a lottery system, the state would randomly locate the site for a proposed facility and then enforce its selection by law. (To reiterate, this assumes that the type of facility at issue is not one that is site-dependent.) Once selected for a siting, a community would become exempt from additional forced sitings until all the other suitable sites have been recipients of equivalent types of facilities.[15] A main advantage of a lottery system is its objectivity and its ability to distribute undesirable facilities on a broader basis. A drawback to a lottery system is that residents may still resort to other legal means to block siting decisions.[16] Auctions Under an auction system, the state would narrow down the site for unwanted or undesirable facilities (e.g., LULUs) to a small number of possible host communities and then require each of those communities to submit a bid that represents the amount of compensation requested by the community in return for accepting the facility. The community with the lowest bid would receive the facility; the compensation would be paid with monies received from the other bidders. Since the compensation for the host community would be funded on a pro rata basis by the combined bids of the other communities, the incentive for a community to raise its bid to avoid a siting is, at least in theory, lessened. Again, however, this approach does not adequately address the issue of fairness. Because poorer communities will tend to submit bids that are lower than wealthier communities, poorer areas will continue to be candidates for the siting of the most unwanted facilities. Additionally, control over the process by which the initial bidders are chosen may not be equitable. Bidders may not be knowledgeable about the adverse effects of the facility. And, as with the lottery system described above, adverse impacts from the facility may be unknown or unquantifiable, thus making a compensation scheme an inadequate remedy. A variation on this approach, a two-stage auction, remedies some of these drawbacks. A report from Connecticut describes the two-stage auction process as follows:
Fair-Share Process The "fair-share" process is another technique designed to address the disparity of an over-concentration of undesirable facilities in one community. This process was designed by the New York City Planning Commission and delineates specific criteria that city agencies must follow when siting a new city facility, or when expanding, significantly reducing, or closing an existing city facility For instance, when siting a facility using the fair-share process, an agency would consider: service need, cost-effective delivery of services; effects on neighborhoods; and the geographic distribution of services. These factors are then applied in conjunction with others such as land use, zoning, and compatibility with nearby uses. New York City has experienced several difficulties with its fair-share program since it was implemented in 1991. For example, the impacts of the process have not been as strong as originally hoped since the process is limited to city sitings and does not take into account those undesirable facilities sited by federal and state agencies. In addition, the process has been difficult to administer due to the relatively short time frame in which siting decisions must occur. A complete description of the New York City Fair Share Process is included in the Note at the conclusion of this Chapter. Alternatives — Combining Approaches The goal of equitably distributing state facilities may also be pursued in other ways that include combining aspects of the processes described above. In conjunction with implementing a fair-share program, a ranking system might be developed to rate a facility's negative effects on its host community. For example, if a community would more readily accept a homeless shelter than a prison, this preference would be reflected in the ranking system. One way to rank state facilities would be to distribute a survey to all governing bodies in the state that currently have planning and/or zoning powers. Results of the survey would be used to create a hierarchy of unwanted facilities, grouped both by type of use and by the overall undesirability of the facility as compared to other facilities. The map could note the ranking of facilities in the districts and determine, by type or ranking, what districts should be given a certain facility. The downside of this type of approach is that, like the point systems discussed above, it may be difficult to manage, and (as emphasized earlier) very many state facilities are site-dependent. Including these facilities in a ranking system would ultimately undermine that program. In order to fairly distribute all types of state facilities on a statewide basis, the state could also distinguish facilities that have societal impacts[18] from those that have environmental impacts. Facilities with environmental impacts (e.g., a waste incinerator) are generally more difficult to site and may negatively affect the health of the community more than a group home for recovering alcoholics. While residents of the group home may blend into the community with few (if any) negative effects, no matter how well run, the waste incinerator will increase air pollution and cause health problems to susceptible individuals. Some consideration should also be given to whether the proposed state facility is designed for the benefit of the area in which it is located or whether it benefits a larger region. In general, districts should be required to accept some state facilities that may not directly benefit their residents, but which the state and society as a whole needs. On the other hand, an argument could be made that districts should not be required to accept a state facility that only benefits another district or region if that facility could be sited in the district or region it will serve. Siting State FacilitiesCommentary: A Model Statute for Siting State FacilitiesThe model legislation proposed below is similar to that used to enact the New York City fair-share process. One major difference between the two processes, however, is that, under the model legislation, the state legislature appropriates funding for the facilities prior to their siting rather than after.[19] The model legislation also provides for a process that is based on the division of the state into substate districts. The elements of the proposed process are as follows: 1. A state agency prepares a proposed Statement of Needs that describes the facilities it will need in the next two-year period (without identifying a specific location for the facility[20]) and submits the statement to the state planning agency. 2. The state planning agency combines all of the state agencies' Statements of Needs into one and submits its own proposed Statement of Needs and state facilities map, which shows existing state facilities, to the state legislature. 3. The state legislature rejects or adopts, in whole or in part, the proposed Statement of Needs. 4. State agencies then site new state facilities using criteria promulgated by the state planning agency in a process that includes public hearings. The purpose of presenting the proposed Statement of Needs to the state legislature prior to siting the facilities is twofold. First, since the Statement of Needs is not site-specific (except in the case of a facility's significant expansion or significant reduction), funding for a facility will not (theoretically) be withheld by the state legislature based on its location. Second, the passage of the proposed Statement of Needs, in conjunction with approval of the state capital budget, indicates that the state legislature concurs with the state agency regarding the need for the facility. As part of the rule-making process, the state planning agency must promulgate the fair-share criteria to be used by the state agencies. Although criteria are included in the model, each state planning agency will have to carefully tailor fair-share criteria for its own state, based on that state's unique concerns and characteristics. Siting State Facilities — A Model State Facilities Siting Act5-101Purpose[21] (1) The purpose of this Act is to ensure the equitable distribution of state facilities among regions of the state by:
5-102 Definitions As used in this Act, the following definitions shall apply: (1) "Proposed State Facility" means a new state facility to be established as a result of an acquisition, lease, construction, or contractual action, or the substantial change in the use of an existing state facility. (2) "Significant Expansion" means an addition of real property by purchase, lease, interagency transfer, consolidation, or enlargement that would expand the lot area, floor area, or capacity of a state facility by [25] percent or more and by at least [500] square feet. An expansion of less than [25] percent shall be deemed significant if it, together with expansions made in the prior [three-year] period, would expand the state facility by [25] percent or more and by at least [insert figure] square feet.[22] (3) "Significant Reduction" means a surrender or discontinuance of the use of real property that would reduce the size or capacity to deliver service of a state facility by [25] percent or more. A reduction of less than [25] percent shall be deemed significant if it, together with reductions made in the prior [3]-year period, would reduce the state facility by [25] percent or more.[23] (4) "State Agency" means an agency, board, commission, or other office of the executive branch of state government that has the power to site, significantly expand, or significantly reduce state facilities. (5) "State Facility"[24] means a land use or facility that provides state services and whose location, significant expansion, or significant reduction in size is subject to the control and supervision by a state agency, as defined in paragraph (4) above. Examples of state facilities include, but shall not limited to the following: libraries, courthouses, recreation areas, group homes, recycling centers, hospitals, landfills, waste treatment centers, and airports. No land use or facility shall be considered a "state facility," however, unless it meets one of the following two criteria:
(6) "State Facilities Map" means the state facilities map described in Section [5-103]. (7) "Statement of Needs" means the Statement of Needs described in Section [5-103]. (8) "Substate District" means the geographic area within each set of boundaries delineated by the governor under Section [6-602]. 5-103 Preparation of Proposed Statement of Needs; State Facilities Map (1) Each state agency shall, on a biennial basis and by [date], prepare a proposed Statement of Needs for those state facilities that are to be sited, significantly expanded, or significantly reduced within its jurisdiction. The proposed Statement of Needs shall be prepared in a format and manner prescribed by the [state planning agency]. (2) The proposed Statement of Needs shall consist of both text and maps and shall include:
(3) Each state agency shall provide the [state planning agency] with information on all existing state facilities in a format and manner prescribed by the [state planning agency] by [date] and in each succeeding [2]-year period. This information shall include:
(4) The [state planning agency] shall prepare by [date] and update biennially a state facilities map drawn to an appropriate scale and divided into substate districts, containing the information described in paragraph (3) above.
5-104 Submission of Proposed Statement of Needs to State Legislature; Adoption (1) The [state planning agency] shall combine the individual proposed Statements of Needs of all state agencies into its own consolidated proposed Statement of Needs. The [state planning agency] shall then present its proposed Statement of Needs and state facilities map to the state legislature by [date] in conjunction with the state capital budget and capital improvement program prepared pursuant to Sections [4-301 through 4-304]. (2) The legislature may adopt the proposed Statement of Needs and state facilities map as submitted, or may adopt them with modifications. The adopted document shall be called "The Statement of Needs for the [current biennial period]." (3) Within [60] days of the adoption of the Statement of Needs and the state facilities map, the director of the [state planning agency] shall certify copies of the documents to:
[or]
(4) The director of the [state planning agency] shall make the Statement of Needs and the state facilities map available for sale to the public at actual cost or a lesser amount. 5-105 Establishment of Criteria for Siting or Expanding State Facilities (1) Not later than [date], the [state planning agency] shall propose rules that a state agency shall use to site new state facilities and make decisions regarding the significant expansion in the size or capacity of service delivery for existing state facilities. (2) The criteria for the siting or significant expansion of state facilities shall be designed to:
[or] (2) The criteria for the siting or significant expansion of state facilities shall include, but shall not be limited to, the following:
[(3) In addition to any applicable criteria established in paragraph (2) above, the criteria for the siting or significant expansion of state facilities that have local or neighborhood significance[26] shall be as follows:
[(4) In addition to any applicable criteria established in paragraph (2) above, the criteria for the siting or significant expansion of state facilities that have regional significance[27] shall be as follows:
[(5) In addition to any applicable criteria established in paragraph (2) above, the criteria for the siting or significant expansion of state transportation and waste management facilities shall be as follows:
[(6) In addition to any applicable criteria established in paragraph (2) above, the criteria for the siting or significant expansion of state residential facilities shall be as follows:
[(7) In addition to any applicable criteria established in paragraph (2) above, the criteria for the siting or significant expansion of state administrative office facilities shall be as follows:
5-106 Establishment of Criteria for Closing or Reducing State Facilities (1) Not later than [date], the [state planning agency] shall propose rules that a state agency shall use to make decisions regarding the closing of, or significant reduction in the size or capacity of service delivery for, existing state facilities. (2) The criteria for the closing or significant reduction of state facilities shall be designed to:
[or] (2) The criteria for the closing or significant reduction of state facilities shall include, but shall not be limited to, the following: (a) whether the closing or reduction would create or significantly increase any existing imbalance among communities or service levels relative to need;[29] and (b) whether the closing or reduction is consistent with the specific criteria for selecting the facility for closure or reduction as identified in the Statement of Needs. 5-107 Publication and Adoption of Rules (1) Not later than [30] days after the filing of the proposed rules, as specified in Sections [5-105 and 5-106] above, the [state planning agency] shall publish a notice of proposed rule-making under the [state administrative procedures act] with regard to such rules. Promptly thereafter, the [state planning agency] shall approve or disapprove with modifications the rules and shall file the rules as prescribed by law. 5-108 Notice and Public Hearings (1) Before siting, significantly expanding, significantly reducing, or closing a state facility, a state agency shall hold one or more public hearings on the proposal. At least [30] days before the date of the public hearing, the state agency shall provide written notice of its action by publication in a newspaper that circulates in the area served by the hearing and may also give notice, which may include a copy of the proposal and supporting documents, by publication on a computer-accessible information network or other appropriate means to all interested agencies or entities, to the chief executive officer of each [substate district or regional planning agency] and local government in the area served by the hearing, and to any interested person who, in writing, requests to be provided notice of the proposed action. (2) The notice of each public hearing shall:
(3) The state agency shall afford any interested person, agency, or entity the opportunity to submit written recommendations and comments on the proposed action, copies of which shall be kept on file and made available for public inspection. (4) Public hearing(s) shall be conducted in the following manner:
5-109 Review of Proposal and Decision by State Agency The state agency shall make a written decision to site, significantly expand, significantly reduce, or close a facility, based on a review and analysis of the following: (a) the criteria established [by rule by the [state planning agency] pursuant to] [by] Sections [5-105 and 5-106[30]] above; (b) any special locational or siting criteria contained in the Statement of Needs; (c) any report submitted to it by any other interested person, agency, or entity that contains concerns and recommendations on the impacts of the proposed action, as well as any written and oral testimony presented at a public hearing; and (d) any other factor(s) the state agency may deem relevant to the siting decision. 5-110 Appeals [Any appeals process must be in compliance with the state's administrative procedures act and/or the state's administrative appeals act.]
Connecticut is an example of a state that has addressed this issue by devising an appeals process under which an agency's siting decision is appealed to the governor. The commissioner of public works sites the facilities and then submits a decision to the property review board for review. If the siting decision is rejected by the board, the commissioner notifies the governmental unit, which may then request a modification to its siting request. If the governmental unit's modification is also denied, the governmental unit may appeal to the governor, whose decision is then binding on the parties involved.[31] Areas of Critical State ConcernWhat are Critical Areas Controls? [32] Critical areas controls establish state-administered programs that (1) identify and designate all large tracts of land that are "critical" to the environmental health of the state, or represent some other critical resource, such as regions of the state that have special historic or archaeological significance or possess scenic beauty; and (2) develop regulations to protect those designated areas from unnecessary exploitation.[33] The state intervenes to protect these areas of critical state interest because local governments may otherwise allow development to occur in order to increase their local tax base, in the process forgetting or ignoring the damage to the environment that results.[34] Many local governments may not have the technical capability or resources to control the complex consequences of development in critical areas. Critical areas problems may also arise in connection with the construction of major public facilities, such as airports, highway interchanges and corridors, or sports complexes. Sometimes local governments approve developments around such areas even though they may be overintensive and interfere with the purpose for which the public facility is built.[35] A state that employs the critical areas concept typically carries out its program in one of two ways. 1. The state conducts a study and applies statutory criteria to a particular area to determine whether it satisfies the standards for designation. This mechanism, which involves the establishment of a comprehensive statewide system, is based on the American Law Institute's A Model Land Development Code.[36] Several states have employed this approach, including Colorado, Florida, Minnesota, Nevada, Oregon, and Wyoming. 2. The state establishes a special program directed at a certain area of the state (e.g., coastal zones). This has been characterized as an "ad hoc" approach and has been used in states that include California, Massachusetts, New Jersey (for the Pinelands area), New York (for the 6-million-acre Adirondack Park region), North Carolina, and Virginia and Maryland (for the Chesapeake Bay programs).[37] Once the designation has been made under such programs, the state formulates a comprehensive management plan or specific set of controls to advance or protect state interests. Development in the area is then subject to the management plan and regulations based on the plan or the special set of controls. The state may regulate the development directly or it may delegate authority to local governments that have fulfilled certain requirements (e.g., such as obtaining certification from the state of local development regulations as meeting the objectives of designation) under the statute. The program may also be accompanied by purchase of land and interests in land. The ALI Code Proposal The ALI Code authorized a State Land Planning Agency to designate Areas of Critical State Concern for the following:
For example, the ALI Code described as a potential Area of Critical State Concern a major highway interchange adjoining a state hospital and located near a wildlife preserve. This area would deserve special regulatory attention to:
In such an area, the local jurisdiction could continue to regulate development, but only using development regulations reviewed and approved by the state land planning agency. If a local government failed to submit regulations complying with state standards for the area, the agency could adopt its own regulations applicable to that government's portion of the area. Regardless of whether the local government or the State Land Planning Agency adopts the regulations, the administration of the regulations is undertaken by the local government's planning agency in the same manner as if the regulations were part of the local development ordinance. In addition, the Code provided a mechanism by which the State Land Planning Agency may appeal any local development decision in an Area of Critical State Concern to a State Land Adjudicatory Board. The ALI Code did not require that the state adopt any type of plan in order for the state to engage in regulating Areas of Critical State Concern, except as a prerequisite involving land in and around a proposed new community. In such a case, an adopted State Land Development Plan was required because, as was reasoned, "[t]he selection of such a site is likely to have such a major impact on surrounding areas that it should be preceded by the study, and accompanied by the procedural formality required of a State Land Development Plan."[41] The Code's drafters believed that a state plan was not otherwise necessary as a basis for critical areas designation because the factors that make a given area critical "relate to that area alone and are not necessarily dependent on the relationship of the area to an overall plan or pattern."[42] Professor Daniel R. Mandelker has commented on this approach:
Florida Several states[44] have adopted various permutations of the ALI Code, but Florida's approach is closest.[45] The Florida Division of State Planning, in cooperation with local interests, recommends Areas of Critical State Concern to the state Administration Commission (the governor and cabinet) based on historical and environmental factors.[46] The state legislature is given the opportunity under the statute to "reject, modify, or take no action relative to the adopted rule" issued by the Administrative Commission designating the area as one of critical state concern but is not required to approve it.[47] The statute, in effect, gives the legislature a veto power on executive action. Once the area is approved, all regional and state agencies must comply with the rule designating the areas[48], and local governments have six months to prepare consistent comprehensive plans.[49] Developments of Regional Impact (DRI) within the critical areas may proceed only under local and regional plans and regulations.[50] Florida's critical areas approach seems to have been relatively successful, having included a variety of wetlands and coastal resources, among others. However, it suffers a serious limitation in that no more than 5 percent of the state's land area may be designated as critical areas at one time.[51] Such limitations on protected land area may be popular among developers and large property owners, but they place artificial constraints on environmental planning. Florida's success is partly fueled by strong growth management and planning laws not present in most other states, and by strong enforcement provisions that permit judicial review of inconsistent local plans and development projects.[52] Ad Hoc Legislation for Critical Areas The ad hoc approach has been used with some success by California,[53] North Carolina,[54] and Massachusetts,[55] among others. One of the earliest (and still the largest) areas designated as of critical state concern is the New York Adirondack Park that encompasses over 6 million acres of public and private lands. Authority for development planning for the park is in the Adirondack Park Agency Act of 1971.[56] The state legislature approved a regional land management plan in 1973 that set permissible densities for development on private lands and provided standards for permitted developments.[57] Applicants for new land uses and development with an impact of regional significance must obtain a permit from the Adirondack Park Agency.[58] Violators of any section of the act, Agency rules or regulations, or permit conditions are subject to fines of $500 per day, and the N.Y. Attorney General may seek injunctive relief.[59] The state of New Jersey protects the ecologically important Pinelands region under the Pinelands Protection Act of 1979.[60] The New Jersey act designates a "preservation area" that receives the highest level of protection and a surrounding "protection area" that acts as a buffer. A Pinelands Commission was created by the act. The commission is responsible for preparing and adopting a comprehensive management plan, making periodic revisions, and identifying land management procedures to protect the area. It is advised by a municipal council (composed of the mayors of municipalities within the area) to which the commission submits revisions of the management plan for review. Local governments submit master plans and zoning ordinances, which must be consistent with the comprehensive management plan. The Pinelands Protection Act was passed prior to the 1985 State Planning Act.[61] However, the New Jersey State Development and Redevelopment Plan, which is required by the State Planning Act, expressly relies on the plans and regulations of the Pinelands Commission to achieve the state plan's objectives.[62] The "Resource Planning and Management Map" contained in the state plan demarcates the Pinelands area as well. Thus, despite the ad hoc nature of the legislation establishing the Pinelands critical areas, there is a linkage to a broader policy framework contained in a state plan. Yet another example of ad hoc legislation to protect critical areas is Virginia's Chesapeake Bay Preservation Act that protects the ecologically vulnerable tidewater region[63]. The Chesapeake Bay Local Assistance Board develops criteria to protect the area and provides assistance to local governments in complying with the act and board regulations and ensuring that local government comprehensive plans are consistent with the act. For their part, municipalities and counties within the tidewater area are required to develop comprehensive plans that establish preservation areas within their jurisdictions that comply with the board's criteria. The board is also authorized to develop administrative and legal actions to ensure compliance with the Act. Maryland, which is also part of the tidewater region, has also created a commission to oversee development in the critical area of the Chesapeake Bay. The Maryland program is, in many respects, more stringent than the Virginia program because it relies less on local action and more on state designation and oversight. Professor Linda Malone has commented on this distinction in her treatise Environmental Regulation of Land Use:
Areas of Critical State ConcernCommentary: Areas of Critical State ConcernThe model legislation that follows is based on the ALI Model Land Development Code, the Florida statute, and portions of the New Jersey Pinelands Protection Act but incorporates a number of changes that respond to critiques of the ALI approach and contemporary thinking about environmental regulation of land use. Under the model: 1. A state must first prepare and adopt a state land development plan that contains goals, policies, and guidelines to provide a framework and priorities for the administration of the program. This plan is described in Section 4-204 of the Legislative Guidebook. A state agency — here identified as the state planning agency, although it could be a natural resources agency — is responsible for administering the program. If a state biodiversity conservation plan is authorized, under Section 4-204.1, then such a plan must also be first prepared and adopted. 2. The state planning agency may initiate the process of designation of an area of critical state concern. In addition, any person may request of any other state agency that the agency recommend to the state planning agency that an area be designated as being of critical state concern. Regional planning agencies may also request that the state planning agency initiate the designation process.[65] 3. One optional designation category is described in Section 5-203(3), which addresses areas "containing or having significant impact upon historical or archaeological resources, sites, or districts of statewide or regional importance." Critical area designation in this context is usually more appropriate for large tracts of land encompassing historical or other similar sites, such as battlefields or historic districts, than for individual buildings and structures, for which conventional historic preservation controls could instead be employed. 4. To minimize the exposure of property to natural hazards, the model, in Section 5-203(1)(e), also provides for the designation of "geologically hazardous areas" and, as an option, "frequently flooded areas." The intention here is to provide a special set of controls on development in areas subject to seismic and related geologic hazards and more severe incidences of flooding. Development in areas that lie in floodplains can also be addressed through conventional building code and zoning review mechanisms, as part of a community's participation in the National Flood Insurance Program.[66] 5. The state planning agency is then required to evaluate the merits of the recommended designation using criteria contained in the model statute, assess the proposal against the goals, policies, and guidelines of the state land development plan (and state biodiversity conservation plan, if adopted), and provide written notices to affected parties for written comment. 6. If the state planning agency decides to proceed with the designation, it must prepare a more detailed "draft" proposal. The model statute, in Section 5-205(1)(c), requires that the agency must "utilize the best scientific and ecological practices in determining the proposed boundaries and surface areas of the area of critical state concern, including, but not limited to, environmental risk assessment and bioregional planning." The intention here is to require that the agency employ environmental risk assessment to consider the potential consequences of an action and the relative uncertainties associated with the analysis. In a typical environmental risk assessment, environmental scientists, planners, consultants, and agency staff characterize the resources at a site, identify all real and potential exposure of plants, animals, and humans to environmental injury, and balance the resulting risk of significant effects on the resources of the proposed area. A bioregional planning approach should ensure that the designation of the area is based on biological regions rather than political boundaries. Because biological regions do not recognize or respect political boundaries, preservation of areas based on political boundaries alone may not provide optimal protection for the organisms within it. "Bioregional planning" is therefore intended to protect entire biogeographical areas that may cut across political boundaries. 7. If the state agency decides not to proceed with the designation at this point, it must prepare a written report containing a concise statement that gives its reasons not to proceed. 8. The draft proposal for designation of an area of critical state concern is then the subject of an on-the-record public hearing. The model statute contains procedures to be followed in conducting the hearing. 9. At the conclusion of the public hearing, the state planning agency may decide to prepare a final proposal, which will form the basis of a rule or some other official action designating the critical area. In some states, the planning agency may be able to make the designation. In others, the governor or legislature may have final authority over designation. The model statute will need to be adapted to reflect these differences among states. 10. As in the ALI Code, affected local governments — those with land located wholly or partially in the area of critical state concern — must submit for approval to the state planning agency existing or proposed land development regulations that are to be consistent with general principles established by the state for guiding development in the area. However, in the model below, local governments that are affected are also required to submit their local comprehensive plans, or amendments to them, that incorporate the designated area for state review and certification. In addition, the state may provide grants to affected local governments for the preparation of new or modified land development regulations and amendments to local comprehensive plans. 11. Until the local government obtains approval of its regulations and plans, the state may directly regulate development in the area of critical state concern under regulations that it promulgates. The model statute also authorizes interim regulation of development during the period the designation is under consideration in order to forestall the approval of development permission, other than emergencies or the continuation of certain development projects, that would conflict with the purposes of the designation. 12. If the local government has received approval of its regulations and plans, it may then exercise development control authority in the area of critical state concern. Its decisions, however, may be reviewed, within a limited time period, by the state planning agency. The agency, after a public hearing, may decide to approve, reject, or approve with conditions an application for a development permit, which will then supersede the local decision. 13. The model statute also includes provisions for the withdrawal of areas designated as of critical state concern. A withdrawal is to be treated for all purposes as if it were a recommendation to designate and must follow the same procedures as its initiation. 14. Appeals of decisions by the state planning agency are made under a state administrative appeals act or some other specialized statute for review of such types of decisions. Procedures will also vary from state to state. Generally, the approach taken in the following model is to ensure a careful and deliberate process for designation. The requirement that a state land development plan precede the initiation of a designation process will help develop a statewide context and consensus on the goals of the program and identify the priorities the state will employ in its administration. In addition, the multistep process leading to designation should assist in coordinating the interests of the various governmental units, private property owners, and others affected by the designation. 5-201 Purposes [67] The purposes of this Act are to: (1) provide a mechanism by which areas containing environmental, natural, historic, or archaeological of critical state concern may be identified and protected from substantial deterioration or loss; (2) provide procedures by which areas of critical state concern may be designated; and (3) provide a mechanism by which development and economic growth may occur in areas designated as being of critical state concern. 5-202 Designation of Areas of Critical State Concern, Generally (1) Pursuant to its authority under Section [4-202(4)(c)], the [state planning agency] may [propose the designation of] [alternative: by rule designate] specific areas within the state as areas of critical state concern, in accordance with the criteria identified in [Section 5-203] and the procedures specified in Sections [5-204 to 5-207], below. (2) The [state planning agency] may propose the designation of any area of critical state concern only after it has first prepared and adopted a state land development plan pursuant to Sections [4-204] and [4-210] [and a state biodiversity conservation plan has been prepared and adopted pursuant to Sections [4-204.1] and [4-210]].
5-203 Criteria for Designation of Areas of Critical State Concern An area of critical state concern may only be designated for the following: (1) an area containing or having significant impact upon environmental or natural resources of local, regional, or statewide importance, including, but not limited to, federal or state parks, forests, wildlife refuges, wilderness areas, scenic areas, aquatic preserves, areas of critical habitat for federally and/or state-designated endangered or threatened species, rivers, [frequently-flooded areas[68]], lakes, estuaries, aquifer recharge areas[69], geologically hazardous areas, and other environmentally sensitive areas in the state, the uncontrolled private or public development of which would cause substantial deterioration or loss of such resources or a substantial threat to the public health and safety. Specific criteria that shall be considered in designating an area of critical state concern for such purposes shall include:
(2) an area having a significant impact upon or being significantly affected by an existing or proposed major public facility or other major public investment, including, but not limited to, highways[70], ports, airports, energy facilities, and water management projects. Specific criteria that shall be considered in designating an area of critical state concern for such purposes shall include:
(3) an area containing or having significant impact upon historical or archaeological resources, sites, or districts of statewide or regional importance, the private or public development of which would cause significant deterioration or loss of such resources, sites, or districts. Specific criteria that shall be considered in designating an area of critical state concern for such purposes shall include: (a) whether the area is associated with events that have made a significant contribution to state and/or regional history; (b) whether the area is associated with the lives of persons who are significant to state and/or regional history; and/or (c) whether the area contains distinctive architecture of a type, period, or method of construction of construction, or represents the work of a master, or possesses high artistic values, or represents a significant and distinguishable entity whose components may lack individual distinction; or (d) whether the area has yielded, or is likely to yield, significant information or artifacts of state and/or regional historic or archaeological importance. | My APA
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