5-204 Initiating the Designation of an Area of Critical State Concern

— The process used to designate an area of critical state concern is described in this Section and the following three Sections.

(1) The [state planning agency] may initiate the process of designation of an area of critical state concern. 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. Pursuant to Section [6-107(3)(c)], a [regional planning agency] may also recommend to the [state planning agency] any area that lies wholly or partially within its jurisdiction that meets the criteria set forth in Section [5-203] above for designation as an area of critical state concern.

(2) Upon receipt of a recommendation for designation of an area as an area of critical state concern from any [regional planning agency] or any state agency, the [state planning agency] shall, within [120 days]:

(a) evaluate the merits of the recommendation for compliance with the criteria set forth in Section [5-203] for designation as an area of critical state concern;

(b) evaluate the consistency of the recommended designation with the goals, policies, and guidelines of the state land development plan [and state biodiversity conservation plan];

(c) provide written notice of the recommended area of critical state concern by publication in a newspaper that circulates in the area recommended for designation and may also give notice, which may include a copy of the recommendation and supporting documents, by publication on a computer-accessible information network or other appropriate means. The notice shall:

1. contain a description of the total area and boundaries of the proposed area of critical state concern and a general statement of foreseeable impacts on environmental or natural resources, historical and archaeological resources, and/or major public facilities or public investments.

2. specify the officer(s) or employee(s) of the [state planning agency] from whom additional information may be obtained and to whom written comments may be directed;

3. specify a time and a place where a copy of the recommendation for designation of an area as an area of critical state concern may be inspected; and

4. specify a deadline for the submission of written comments.

(d) The [state planning agency] shall provide notice of the recommendation for designation of an area as an area of critical state concern to:

1. the chief executive officer of each local, regional, or state government or agency whose jurisdiction lies entirely or partially within the recommended area of critical state concern and whose programs and policies would be affected by the proposed designation; and

2. any other interested person who, in writing, requests to be provided notice of recommendations for designation.

The governments, agencies, and persons to be provided notice, and any other agencies, entities, and persons, may review the recommendation and submit a written report to the [state planning agency] containing its comments and recommendations.

(3) Upon receipt of a recommendation for designation of an area as an area of critical state concern from a [regional planning agency] or other state agency, the [state planning agency] shall, within [180] days, compile and review all written comments and recommendations received from local, regional, state, and/or federal governments or agencies and private persons or organizations.

5-205 Preparation of a Draft Proposal for Designation of an Area of Critical State Concern

(1) Following its review of a recommendation for designation of an area as an area of critical state concern received from a [regional planning agency] or any other state agency pursuant to Section [5-204] above, the [state planning agency] shall, within [6 months], prepare a written draft proposal for designation of the area of critical state concern. In preparing its draft proposal, the [state planning agency] shall:

(a) prepare and include concise statements describing the area's compliance with the criteria for designation set forth in Section [5-203];

(b) prepare and include concise statements describing the area's consistency with the goals, policies, and guidelines of the state land development plan [and state biodiversity conservation plan];

(c) utilize the best scientific and ecological practices[71] in determining the proposed boundaries and surface area of the proposed area of critical state concern, including, but not limited to, environmental risk assessment and bioregional planning;[72] and

(d) incorporate those written comments and recommendations received from local, regional, state, and/or federal governments or agencies and private persons or organizations as considered appropriate by the [state planning agency].

(2) In the case of a decision by the [state planning agency] not to proceed with a proposal for designation of the area of critical state concern, the [state planning agency] shall prepare a written report containing a concise statement describing the reason[s] not to proceed.

5-206 Public Hearings on Draft Proposal for Designation of an Area of Critical State Concern

— In many states, rule-making will require an "on-the-record public hearing." In any event, such public hearings can circumvent later attacks based on a lack of adequate procedural due process.

(1) The [state planning agency] shall hold at least one public hearing on the draft proposal for designation of an area of critical state concern. Such hearing(s) shall be held at a public facility located within or near the proposed area of critical state concern.

(2) At least [30] days before the date of the public hearing(s), the [state planning agency] shall provide written notice of the proposed area of critical state concern:

(a) by publication in a newspaper that circulates in the area recommended for designation 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.

(b) to the chief executive officer of each local, regional, and/or state government or agency whose jurisdiction lies entirely or partially within the geographic area encompassed by the recommended area of critical state concern, and to any other interested person who, in writing, requests to be provided notice of recommendations for designation.

(3) The public hearing notice shall:

(a) contain a description of the total area and boundaries of the proposed area of critical state concern and a general statement of foreseeable impacts on environmental or natural resources, scenic resources, historical and archeological resources, and/or major public facilities or public investments;

(b) specify the officer(s) or employee(s) of the [state planning agency] from whom additional information may be obtained and to whom written comments may be directed;

(c) specify a time and a place where a copy of the proposal for designation of an area as an area of critical state concern may be inspected before the public hearing; and

(d) specify the date, time, place, and method for presentation of views by interested persons at the public hearing.

(4) Public hearings shall be conducted in the following manner:

(a) The hearing(s) shall be chaired by the [chief executive officer of the state planning agency] [or his or her designated representative].

— This assumes that the chief executive officer has such authority.

(b) The hearing(s) shall be on the record and a transcribed record shall be kept of all comments made at the hearing(s). A transcribed copy of all comments shall be made available to all interested persons upon request and at actual cost.

(c) The form of the hearing(s) may be set by the [state planning agency], except that representatives of all opinions regarding the draft proposal shall be given an opportunity to make spoken comments.

(d) Written comments on the draft proposal shall also be received at the hearing(s) and shall become part of the record.

(5) The [state planning agency] shall give due consideration to all written and spoken comments received pursuant to this Section. To the extent it is practicable to do so, the [chief executive officer of the state planning agency] may attempt to reconcile persons or entities with opposing viewpoints through informal conflict resolution procedures and may promulgate rules to provide for such procedures.

5-207 Final Proposal for Designation of an Area of Critical State Concern

(1) The [state planning agency] shall, at its discretion, incorporate all appropriate written and oral comments into a final proposal for designation of an area of critical state concern for final action [and rule-making] by the [state legislature or governor or agency].

(2) The final proposal [and rule] shall set forth the following:

(a) a detailed description of the total area and boundaries of the proposed area of critical state concern;

(b) the reasons why the particular area proposed for designation is of critical concern to the state and/or region and how it satisfies the criteria for designation set forth in Section [5-203] above;

(c) a statement of the harms to be prevented and the advantages to be obtained by the designation of the area;

(d) general principles for guiding the development of the area that incorporate the goals, policies, and guidelines of the state land development plan[, state biodiversity conservation plan,] or applicable regional comprehensive plan(s), as appropriate;

(e) a description of the types of development that shall be permitted and the general conditions under which they shall be permitted pending the adoption of regulations under Section [5-208] below; and

(f) the changes, if any, to the rules [and programs] of state agencies having regulatory authority in the proposed area of critical state concern so as to be consistent with subparagraphs (d) and (e) above.

— At this point, things may become complicated. For those states in which the legislature has delegated appropriate authority to the state planning agency, the agency has probably fulfilled its obligations and can now proceed with rule-making. In other states, either the legislature itself or the chief executive must make final decisions. In Florida, for example, the legislature must approve designations of areas of critical state concern, since in Askew v. Cross Key Waterways, 372 So.2d 913 (Fla. 1978), the Florida Supreme Court held that it is unconstitutional for a legislature to delegate that power to the executive branch.[73] Other states, however, may differ in this respect. The language of the model provided here will have to be adapted to fit the particular situation of each state.

5-208 Recordation of Designation

Within [30] days after the effective date of the designation of an area of critical state concern, the [state planning agency] shall record a legal description of the boundaries of the area of critical state concern in the public records of the county or counties in which the area of critical state concern is located.

5-209 State and Local Regulation and Local Plans in Areas of Critical State Concern; Availability of Grants to Local Governments

(1) Following the adoption of a rule by the [state planning agency or governor or legislature] designating an area as one of critical state concern, each local government with jurisdiction entirely or partially within the boundaries of the adopted area of critical state concern shall submit to the [state planning agency], within [180] days of adoption of such rule, either:

(a) its existing land development regulations and existing local comprehensive plan that are consistent with the principles set forth in the rule designating the area of critical state concern; or

(b) new or modified land development regulations and amendments to its local comprehensive plan that are consistent with the principles set forth in the rule designating the area of critical state concern.

(2) The [state planning agency] shall provide technical assistance and may make grants available to local governments for the preparation of new or modified land development regulations and amendments to local comprehensive plans. The [state planning agency] may make such grants from any state, federal, or other funds that may be appropriated or otherwise made available to it for such purposes.

(3) The [state planning agency] shall, within [30] days of such submission of land development regulations and local comprehensive plan, provide notice and hold at least one public hearing in accordance with the procedures set forth in Section [5-206] above.

(4) If, within [60] days of such submission of land development regulations and local comprehensive plan, the [state planning agency] determines that a local government's submission is incomplete or is not consistent with the principles set forth in the rule designating the area of critical state concern, the [state planning agency] shall notify the local government of the reasons that the submission is incomplete or inconsistent.

(5) The local government shall submit to the [state planning agency], within [180] days of such notice, a revision of its new or modified land regulations and amendments to its local comprehensive plan that are consistent with the principles set forth in the rule designating the area of critical state concern. Revision(s) of new or modified regulations and amendments to a local comprehensive plan shall be reviewed and treated by the [state planning agency] in the same manner as original submissions of new or modified regulations and amendments to a local comprehensive plan as set forth in paragraphs (1) through (4) above.

(6) If the [state planning agency] determines that the land development regulations and local comprehensive plan or amendments thereto submitted by a local government are consistent with the principles set forth in the rule designating the area of critical state concern, the [state planning agency] shall approve them by order within [60] days of submission.

(7) If, within [6] months, any local government with jurisdiction within an approved area of critical state concern fails to submit proposed land development regulations and a local comprehensive plan, or fails to revise regulations or amend its comprehensive plan in accordance with this Section, the [state planning agency] shall [by rule]:

(a) provide notice and hold at least one public hearing in accordance with the procedures set forth in Section [5-206] above; and

(b) adopt land development regulations for the area within the jurisdiction of the local government that may include any type of regulations that could have been adopted by the local government under the provisions of this Section.

The [state planning agency] may withdraw its land development regulations after the local government has satisfied the requirements of this Section.

5-210 Interim Regulation of Development and Plans

(1) Notice by the [state planning agency] to any local [or regional] government of a [recommended or proposed][74] area of critical state concern designation shall suspend the powers of the local [or regional][75] government to grant approval of development, as defined in Section [5-302(1)], within its jurisdiction until the area's designation is either adopted or rejected, except that development approval may, with permission of the [state planning agency], be granted for:

(a) emergency development within the jurisdiction of the local [or regional] government, including, but not limited to, the construction of roads, utilities, dikes, levees, and other infrastructure; and

(b) continuing development projects for which interim or partial permission was granted prior to the date of notice.

(2) After adoption of the rule designating the area of critical state concern and prior to the approval of local land development regulations and local comprehensive plans, or the adoption of land development regulations by the [state planning agency] pursuant to Section [5-209] above, the local [or regional] government may grant development approval only to the extent specified in the rule.

5-211 Development Permission in Areas of Critical State Concern

(1) Upon the issuance of an order by the [state planning agency] approving land development regulations and a local comprehensive plan submitted by a local government located entirely or partially within an area designated as one of critical state concern pursuant to Section [5-207] above, the local government thereafter shall, in writing, approve, reject, or approve with conditions development permits, as defined in Section [5-302(3)], within that area in accordance with the regulations, subject to the requirements of this Section.

(2) A local government that approves, rejects, or approves with conditions a development permit within an area of critical concern shall transmit the complete record of its decision to the [state planning agency] within [7] days of the date of its decision.

(3) The [state planning agency] may commence review within [15] days after any local approval, rejection, or approval with conditions of such application for a development permit in the area of critical state concern. Such review shall be commenced by the transmission of written notice by certified mail, to the person who submitted the application for development permit and to the local government, of the decision of the [state planning agency] to review the local decision.

(a) If the [state planning agency] does not transmit such notice within [15] days of the local decision, then the local decision shall be in full force and effect according to its terms and conditions.

(b) The [state planning agency] shall, within [10] days of transmitting such notice, transmit a copy of the record of the local decision to the chief executive officer of each local, regional, and/or state government or agency whose:

1. physical jurisdiction lies entirely or partially within the geographic area encompassed by the area of critical state concern; and/or

2. functional jurisdiction or expertise includes or encompasses the area of critical state concern.

The governments or agencies so notified shall then have [15] days to submit to the [state planning agency] any written comments they may have upon the local decision.

(c) The [state planning agency] shall, after receipt and due consideration of any written comments pursuant to paragraph (b) above, approve, reject, or approve with conditions an application for a development permit within [45] days of transmitting notice pursuant to paragraph (3) above, provided, however, that such application shall not be rejected or conditionally approved unless the [state planning agency] determines that the proposed development does not conform with the local development regulations in effect for the area [or with the principles set forth in the rule designating the area of critical state concern].

(4) Approval, conditional approval, or rejection by the [state planning agency] shall be binding upon the person who submitted such application, shall supersede any local approval, conditional approval, or rejection of any such development permit, and shall be subject only to judicial review as provided for in Section [5-214] below.

(5) When the [state planning agency] has not, pursuant to Section [5-208(4)], approved by order land development regulations and a local comprehensive plan submitted by a local government for an area of critical state concern that is entirely or partially within its boundaries, the [state planning agency] may, in writing, approve, reject, or approve with conditions a development permit within that area in accordance with development regulations for the area adopted pursuant to Section [5-208(5)].

5-212 Amendment of Regulations and Plans

(1) Amendments to local land development regulations and local comprehensive plans that apply within an approved area of critical state concern may be adopted by the local government only upon the issuance of an order by the [state planning agency].

(2) The [state planning agency] shall issue such order in the same manner as was exercised for the approval of the original regulations and plans.

5-213 Withdrawal of Areas of Critical State Concern

(1) No area of critical state concern or portion thereof may be withdrawn from such status except upon a showing by the [state planning agency] that the criteria set forth in Section [5-203] above, no longer apply to the area.

(2) Any [regional planning agency] or any other state agency may recommend to the [state planning agency] that any area of critical state concern or portion thereof that has been adopted by rule under Section [5-207] be withdrawn as an area of critical state concern. The recommendation to withdraw shall be treated for all purposes as if it were a recommendation to designate, and the procedures set forth in Sections [5-204 to 5-207] shall be followed.

(3) Upon the date of withdrawal [by rule] of any area of critical state concern or portion thereof, all regulations shall revert back to local, [regional], and state governments with jurisdiction over the area in the same manner as if the area of critical state concern designation had never existed.

— As in Section 5-207, above, this withdrawal process will only work in those states where the designation is made by the state planning agency. Where the legislature (or the governor) makes the designation, the process would have to go back through the legislature (or the governor) to de-list the area, although the state planning agency would still initiate the recommendation.

5-214 Judicial Review of Agency Decisions

Appeals of decisions by the [state planning agency] to:

(1) propose the designation or withdrawal of an area of critical state concern;

(2) approve or adopt local plans and land development ordinances or amendments thereto applicable within an area of critical state concern; or

(3) approve, reject, or approve with conditions any proposed development within an area of critical state concern; shall proceed according to the provisions of the [state administrative appeals act].

  • As in Section 5-207 above, the issue becomes complicated where the state legislature, rather than the state planning agency, performs the actual designation.

Developments of Regional Impact

What is a DRI?

Developments of regional impact (DRIs) are projects that have impacts that extend beyond local government borders or that affect more than one community. Such developments are also sometimes referred to as activities of state concern or of metropolitan significance. These developments raise issues of intergovernmental coordination, the adequacy of local permitting procedures, and the application of measures to mitigate any adverse effects on neighboring communities.

Eight states[76] have enacted legislation that sets forth specific standards and review procedures to address concerns regarding DRIs. Each state that has done so has devised its own definitions, review procedures, and mitigation requirements. Most existing programs owe their heritage to the American Law Institute's (ALI) A Model Land Development Code, which provided the first model legislation for DRIs and for developments of regional benefit (DRBs) (see further description below).

The ALI Code and its Legacy

Article 7 of the ALI Code established the DRI procedure as a means for allowing state and regional agency involvement in development matters that have effects beyond local borders. The Code was drafted in a manner that recognized that most land-use matters were of only local concern and that states would participate only in those limited types of decisions affecting important state or regional interests.[77]

The ALI Code defined DRIs as development projects that, "because of the nature or magnitude of the development or the nature or magnitude of [its] effect on the surrounding environment, are likely in the judgment of the State Land Planning Agency to present issues of state or regional significance."[78] The ALI Code also provided rules for determining when a development is a DRI. Factors to be considered when designating a development as a DRI included the creation or alleviation of environmental problems, such as water pollution or noise, the amount of pedestrian or vehicular traffic likely to be generated, the number of persons likely to be residents, the size of the site to be occupied, the likelihood that additional development would be generated, and the unique qualities of particular areas of the state where the development is proposed. The Code also set forth: a provision that the DRI review procedure could be applied only in jurisdictions with an adopted land development ordinance; special development procedures; and a benefit-detriment test to be applied before a permit could be issued for a DRI.

Using the same criteria, the Code also included provisions for reviewing and approving DRBs.[79] At the time of application for a development permit, a developer could request that the project be treated as a DRB even if it was not otherwise included within a DRI category, and then follow the special DRI procedures. The purpose was to allow a developer — whose proposed project could be rejected by a local government — to take advantage of a review procedure that considers regional benefits.

In its review of DRIs and DRBs, the local land development agency had to determine whether the "probable net benefit" from a proposed development would exceed its "probable net detriment." This benefit-detriment analysis would be made using criteria specified in the Code that included factors that were relevant not just to the local jurisdiction, but to the surrounding areas. The intent was to ensure that extralocal interests also receive consideration in the development review process. The local land development agency had to make its decision in writing, and the decision could be appealed to a special land court called the State Land Adjudicatory Board.

The Code did not require that there be a state land development plan or any overarching state policies in order for a state to engage in regulating DRIs. However, Article 7 of the Code did provide for the establishment of a State Land Planning Agency and directed it to undertake statewide planning studies, including the preparation of a land development plan, and to engage in rule-making.

Experience with the ALI Model

Florida and Colorado are the only states to have adopted and used major portions of the ALI Code. However, to a more limited extent, the Code's DRI provisions (and the regulations governing areas of critical state concern) (see Section 5-201 et seq.) have also been adopted in some form by Georgia, the Cape Cod Commission, and the Martha's Vineyard Commission.

Florida

In 1972, Florida became the first state to adopt Article 7 of the ALI Code.[80] Mirroring the Code, the Florida statutes require state and regional review of DRIs, in addition to local government analysis and approval of developments that have been identified as DRIs. Projects that have generally fallen under this classification are large residential developments (ranging from 250 to 3,000 dwelling units), power plants, and shopping centers. Thresholds are established by statute for 14 land-use categories to help define which projects fall under DRI purview.

The DRI review process can be initiated by either the developer or the local government. A developer can request a prompt determination from the state Department of Community Affairs as to whether a project meets DRI qualifications, and, if so, whether it would be excluded from DRI review because he or she has vested rights. The department is required to respond via a "binding letter of interpretation" within 60 days. The local government, the regional agency, and the developer are all bound by the state's interpretation.

Once a project is designated as a DRI, the local government and the regional agency each begin their own review. The regional agency prepares a report and recommendations on the regional impacts of the proposed development, using the criteria for measuring benefits and detriments as set forth in the statute.[81] These criteria include consideration of factors (again, both negative and positive) that include the development's effect on the environment, the economy, public facilities (including sewer, water, and transportation networks), the jobs/housing balance, energy consumption, and other factors that the regional agency deems appropriate. The local government reviews projects according to its existing land development regulations.

Local governments are responsible for ultimately deciding whether to issue a development order allowing a DRI to proceed. The local government must consider the report and recommendations of the regional agency concerning the potential regional impacts of a project but is not required to abide by those recommendations. The local government must also consider whether the project interferes with the achievement and objectives of the state land development plan and whether the project is consistent with its own local land development regulations. The owner, the developer, and the state Department of Community Affairs may appeal the local government's decision to the state Land and Water Adjudicatory Commission (Florida's land court). Until 1993, regional agencies were also empowered with this appeal privilege. The legislature removed that authority in part to streamline the review process; the regional agency's role in DRI review is now primarily to act as a coordinator.

Over the nearly 25-year life of the program, the Department of Community Affairs has developed separate rules and review procedures for several types of DRIs.[82] These include the following: a conceptual agency review procedure; a "comprehensive application" for proposals that include two or more DRIs; special rules for downtown development authorities acting as DRI applicants; and the Florida Quality Developments (FQD) program. A developer can elect to undergo the FQD program if his or her development site contains significant environmentally sensitive lands (e.g., wetlands, beaches, and coastal areas) and if a significant portion of the site will be set aside for permanent protection from development.

Cape Cod Commission in Massachusetts

The Cape Cod Commission became authorized to review DRIs with the passage of the Cape Cod Commission Act in 1990.[83] (The Martha's Vineyard Commission has been authorized to review DRIs since 1974.) Both programs are based on Article 7 of the ALI Code.

As with other DRI programs, the Cape Cod Commission established thresholds relating to size and potential impact to determine which projects should be considered DRIs. (A discussion about designating thresholds appears later in this Chapter.) In summary, these thresholds are as follows:

(1) any proposed demolition or substantial alteration of an historic structure or archaeological site;

(2) the construction of a bridge or roadway that would provide direct access to a waterway;

(3) residential projects greater than 30 acres or 30 dwelling units; and

(4) commercial developments of at least 10,000 square feet, whether it be new construction, an addition, or a use change.[84]

The review process begins when a developer brings a proposal to a local government for review. If the proposal meets the criteria for a DRI, the local government refers the application to the Cape Cod Commission for review. The Commission notifies the applicant that the project will be reviewed according to DRI standards. At that point, the local review process is suspended while the application is under consideration by the Commission. The Commission then schedules a public hearing, which must take place within 60 days of the submission of the application.

The Commission and its staff review the application and may approve, approve with conditions, or disapprove DRIs. The Commission review process is guided by the goals of the act and by the regional policy plan, which focus on issues that include water quality, traffic circulation, historic values, affordable housing, and economic development. Specifically, the act directs the Commission to consider the following questions in evaluating a proposed DRI:

(1) Is the probable benefit from the proposed development greater than the probable detriment?

(2) Is the proposed development consistent with the regional policy plan and the local comprehensive plan of the municipality in which it is located?

(3) Is the proposed development consistent with municipal development bylaws? Or, if it is inconsistent, is the inconsistency necessary to enable a substantial segment of the population to secure adequate opportunities for housing, conservation, environmental protection, education, recreation, or balanced growth?

(4) Is the proposed development located within a designated district of critical planning concern? And, if so, is it consistent with the rules and regulations established for such districts?[85]

After receiving approval of a DRI from the Commission, the developer must then complete the local government's review and permitting procedures.

When the Cape Cod Commission Act was first enacted, developers had to navigate through the Massachusetts Environmental Protection Act (MEPA) process, receive all the necessary state approvals, and then contact the Cape Cod Commission for an additional list of assessments and data-gathering demands that had to be completed as a condition of development approval. Now, information-gathering requirements and impact assessments required under MEPA and DRI review processes are combined into a joint review/scope study that fulfills the requirements of both acts. If an application is denied by the Commission, the project is essentially dead, unless the developer decides to appeal. Projects that are approved are then returned to the local government's jurisdiction and subject to local development review procedures.

There are two types of exemptions that developers can file for under the Commission's DRI rules — a Standard Exemption (Section 12(k) of the Act) or a Hardship Exemption (Section 23 of the Act). The first type of exemption may be used where the developer can show that the location, character, and/or environmental effects of the proposed development are such that it will not create impacts outside the municipality in which it will be located. In other words, while some developments may meet the thresholds to be designated as a DRI, their impacts may not be regionwide. For example, a 30-acre development that is proposed for subdivision into three 10-acre parcels may qualify for such an exemption. The Commission is also authorized to grant the second type of exemption, in whole or in part and with appropriate conditions, where developers can prove that a literal enforcement of the act would involve substantial hardship (financial or otherwise) and that desirable relief could be granted without substantial detriment to the public good and without nullifying or significantly derogating the intent of the act.

The act also provides an appeals mechanism for cases in which the developer disputes the finding that the development meets the DRI criteria or believes that the rules were applied improperly. Appeals must be made to either the superior court or the court of Barnstable County within 30 days after the Commission has notified the developer of its decision.

In 1994, four years after implementing DRI regulations, the Cape Cod Commission convened a task force to review several operations of the Commission and to make recommendations as to how they could be improved.[86] The major conclusion drawn by the task force was that decisions were being made on a case-by-case basis, with no clear policy guidance or uniform application of rules. Specifically, the task force concluded that the DRI process was actually working at cross purposes with the Cape Cod Economic Development Council in that the DRI process was viewed by many as cumbersome and might be scaring off potential business and industries. As a result of the task force's findings, the Commission and the Economic Development Council adopted a joint statement outlining their dual roles in environmental preservation and job creation, and have since made efforts to establish a procedure to coordinate their efforts.

The task force also found that development proposals of similar type and scale were not always treated uniformly. The task force thus recommended, and the Commission subsequently adopted, an ordinance that clearly defines all DRI thresholds, all performance standards that may be applicable to various types of DRIs, and the methods for calculating mitigation requirements.

Vermont

Enacted in 1970, Vermont's Act 250 established a project review process in which certain types of land development and land subdivision require approval by state-created district environmental commissions.[87] Because Vermont is largely rural, a project does not have to be very large to meet Act 250's criteria for what constitutes a development with greater than local impact. For example, all housing projects of 10 or more units and all commercial and industrial projects larger than 10 acres are subject to the regional review.

A district commission must measure each proposed development against 10 major criteria and 11 subcriteria. Generally, the commission must find that a proposed development will not cause: pollution; erosion; unreasonable traffic congestion; or school overcrowding. In addition, the development must not have an adverse effect on either scenic or natural beauty or historic sites, and must conform with any statewide plans adopted under Act 250, as well as any locally adopted plan, capital program, or municipal bylaw.[88]

The Act 250 review process has been criticized over the years for being piecemeal and for lacking a planning context. This reproach stems from the fact that the state land-use plan required under the Act was never prepared, and, thus, decisions have been made on a project-by-project basis. Further, the Act 250 process has not been integrated into Act 200, the statewide growth management program passed in 1988. For example, the regional planning agencies that prepare comprehensive plans under Act 200 are different entities than the nine district environmental commissions that conduct Act 250 review.

On the positive side, the appointment of lay people to the regional commissions is regarded as the program's strongest point. And, although most of the development applications reviewed by the district environmental commissions have been approved, most have had substantial conditions attached to their approval as a means of mitigating potential negative impacts. [89]

Metropolitan Council of the Twin Cities

The Minnesota legislature adopted legislation in 1967 that gave the Metropolitan Council the authority to review projects of regionwide significance.[90] The process is very different than the ALI-based model described above. It is essentially a mediation and dispute resolution mechanism for local governments within the region to use if residents believe that they would be negatively affected by the impacts of a proposed project in a neighboring community.

The Metropolitan Council forms a significance review committee (a new committee is convened for each project) that evaluates projects according to whether they will "substantially impact" service levels of major transportation facilities, local or regional sewer and stormwater plans, open space and recreational resources, as well as other (primarily environmental) considerations. The significance review committee determines whether to review the project itself or defer to a mediator's or administrative law judge's review and decision. The reviewing entity is charged with submitting a report to the full Council that must include findings of the effects of the development and propose remedies. There are three potential outcomes of the Council's actions: either the developer agrees to the required remedies; the local or regional facility plan is amended to accommodate the proposed development; or the development proposal is suspended by the Council for a one-year period of time.

According to the Metropolitan Council staff, in the history of the significance review process, approximately 20 developments have been subject to the Council's review process. The Mall of America in south suburban Bloomington, a National Basketball Association basketball arena in downtown Minneapolis, and a large bingo and casino gaming facility in south suburban Prior Lake are examples of the types of projects that have been subject to review.

Criticisms of Existing DRI programs

The two primary criticisms with existing DRI programs are: (1) the subjective nature of the thresholds used to determine which projects are DRIs (discussed below); and (2) the lack of connection to a larger planning process. In Vermont and Florida, for instance, the DRI processes were precursors to larger state growth management programs, and they still operate outside those mechanisms. In effect, policy is being made and remade anew with each DRI review rather than having been made and then applied to all projects. In his planning law treatise, the late Vermont Law School Professor Norman Williams, Jr., illustrates how this missing connection manifests itself in the review of large projects. In his analysis of the criteria used by district environmental commissions to evaluate development proposals, Williams noted that the criteria were "so vague as to provide practically no serious guidance for an administrative agency making decisions thereunder."[91]

But simply stating that the DRI review decisions must be based on a plan is no guarantee that it will happen. For instance, the Vermont State Land Use Plan, which was to provide guidelines for those persons reviewing large-scale projects in the state, was never prepared. And in Florida, the State Comprehensive Plan was adopted 10 years after the DRI process got underway. So, although the Florida DRI rules state that DRI decisions must be based on the plan, that has not transpired.

Designating Thresholds

The standards and criteria that a state planning agency uses to define which developments are DRIs vary widely from to state to state. For example, in some Florida counties, the smallest residential DRI is 250 dwelling units.[92] By contrast, in areas of Vermont, the DRI process is activated by any housing development consisting of at least 10 dwelling units.[93] The Cape Cod Commission reviews as a DRI any wholesale, business, office, or industrial development of 10,000 square feet or more.[94] Georgia's threshold for similar facilities is 250,000 square feet.[95] For each land use to which a DRI threshold is applied, the threshold must be set at the point at which that land use has an extralocal effect. For example, simply because a building is large does not necessarily mean it will have a multijurisdictional impact or even a negative impact. A 75,000-square-foot storage facility will obviously have a differing impact on the surrounding area than a 75,000-square-foot discount retail store. For that matter, a 75,000-square-foot storage facility may have the same impact on the surrounding area as a 10,000-square-foot discount retail store. The point being, of course, that a state planning agency must use more than numbers alone to establish thresholds.

DRI thresholds also need to vary according to jurisdiction size. For the same reasons that impacts will vary from state to state, they will vary from region to region within a state. Georgia established DRI thresholds for 13 types of development in three population categories. In the Atlanta region, the DRI threshold for housing developments is 500 new units or lots; in smaller metropolitan areas, it is 400 units or lots; and, in rural areas, the threshold is only 250 units.

Florida's statute provides general standards and criteria but does not set specific thresholds for DRI determination. Instead, it charges the state planning agency in its rule-making authority with establishing thresholds that local governments or the state planning agency can use to determine whether a development is a DRI. Massachusetts includes the thresholds in its legislation.[96]

Periodic Review of Thresholds

Deriving and applying thresholds to determine which projects will be subject to DRI review is the most contentious aspect of DRI programs. A state that adopts a DRI program should be prepared to periodically revisit the thresholds to ensure that developments with similar impacts are being treated fairly and equally. The goal, of course, should be to treat projects with similar impacts in a like manner. As described above, the level of specificity used to establish thresholds for what constitutes a DRI varies greatly from state to state and from region to region. Those standards have been criticized for being both arbitrary and rigid. This suggests that the state planning agency should be flexible in setting the thresholds and prepared to modify them where necessary.

Developments of Regional Impact


Commentary: Procedures for Regulating Developments of Regional Impact

In the model that follows, the DRI program is intended to be used within the framework of several key policy and regulatory functions, including: (1) a state plan or a set of state goals for planning and land development; (2) regional plans and goals; and (3) local plans and land development regulations, especially those that address multijurisdictional issues.

There are eight main steps in the model DRI regulatory process:

1. The state planning agency adopts rules regarding developments of regional impact. These rules are based on goals, policies, and guidelines in a state land development plan, prepared pursuant to Section 4-204 of the Legislative Guidebook, and a state biodiversity conservation plan pursuant to Section 4-204.1 if one exists. The rules address the following:

a. Categories or types of development that are presumed to have regional impacts;

b. Roles and responsibilities of state, regional, and local agencies;

c. Application requirements;

d. Criteria and procedures for reviewing, approving, or denying DRI applications; and

e. Standards for exemptions from DRI rules.

2. A developer applies for a development permit from a local government having jurisdiction. The host local government will make a determination and notify the developer whether the proposed project meets or does not meet the criteria for a DRI.

3. If the proposed development constitutes a DRI, the model provides two alternatives:

a. The host local government accepts the application; or

b. The host local government refers the application to the regional planning agency for review as a DRI. The regional planning agency will in all likelihood impose additional application requirements (e.g., a DRI application form) above what was required in the developer's initial application to the host local government.

4. The primary reviewing agency is required to send copies of the DRI application to all interested agencies and entities.

5. Depending on the alternative selected in (3), the review of the DRI is conducted by the local government or the regional planning agency. The DRI is reviewed according to the standards established by the state planning agency in its rule-making procedures.

6. The primary reviewing agency gives notice and holds public hearings on the proposed DRI.

7. Subsequent to the public hearing, and after consideration of all comments, reports, and recommendations from interested parties and entities, the primary reviewing agency makes a decision to approve the DRI, approve it with conditions, or deny the application for development.

8. The decision may be appealed to the court of competent jurisdiction.

Key Features of the Model

The model statute that follows recommends that a DRI program be made a component of an integrated state, regional, and local planning and development control system. The goals of the DRI program and outcomes of DRI reviews should therefore be based on sound planning goals and policies. For example, statewide policies to discourage urban sprawl, encourage compact urban form, and ensure that infrastructure is in place concurrently with the demands of new growth and development can be implemented via the criteria used to review DRIs, at least to the extent to which proposed developments affect such policies. The presence and recognition of plan policies in the review process can lend credibility to the decision makers and improve predictability for the developers.

The model legislation does not provide specific thresholds for states to adopt to define DRIs since this process would be more appropriately created by a state in its own administrative rule-making process. As described above, each state that currently has a DRI program has found it necessary to vary the thresholds and make continuous adjustments to those thresholds in order to accurately address development trends and project impacts. The model does include a provision that allows for thresholds to differ according to community size and location. It also provides for the agency charged with determining whether a project qualifies as a DRI to balance qualitative judgment with quantitative thresholds.

Designating the Review Agency

A major issue encountered by each state designing a DRI program is deciding which level of government is the appropriate agency to conduct the primary review and approval of the DRI application. The ALI Code establishes the local government (using its "Special Development Procedures")[97] as the primary reviewing and permitting agency for DRIs.[98] Such is the case, therefore, in Florida, which used the ALI Code as a model. An alternative, used in Cape Cod and Martha's Vineyard, is for a regional planning agency to conduct the review and either approve, approve with conditions, or deny a permit to a DRI development. Whichever approach is adopted, the primary reviewing agency should employ state-established criteria to evaluate the impacts of a proposed development and set forth conditions under which it may be approved or denied.

To be effective, review and approval authority should reside with the agency that has the power to make policy decisions regarding development patterns and to prepare and adopt a plan that is consistent with state, regional, and local goals (to the extent that they exist). In addition, the statute must also set forth what other levels of government and agencies will be required or allowed to review the DRI application and to make recommendations to the primary reviewing agency. Such recommendations are typically advisory only, but the statute may vary as to whether the comments of other agencies must be formally acknowledged. At a minimum, the primary reviewing agency should be required to provide a written acknowledgment of the recommendations of other agencies in its final decision.

The regional planning agency contemplated by the model will vary in form from state to state. For example, the Cape Cod Commission is a special agency created by the state legislature for a specific geographical area. Florida and Georgia have regional planning agencies that serve planning functions in the statewide growth management program and conduct advisory reviews of DRI proposals. Other states may determine that counties should serve as the regional planning agency for the local governments located within their boundaries.


5-301 Statement of Purpose; Source of Authority

(1) The purpose of this Act is to ensure that, for developments of regional impact (DRIs), regional and extra-jurisdictional impacts and interests will be identified and addressed by:

(a) providing a special intergovernmental review procedure that allows state, regional, and local agencies whose plans, programs, and policies affect or are affected by developments to participate in decision making with regard to those developments;

(b) ensuring public participation in the process of reviewing development proposals;

(c) requiring agencies responsible for approving such developments to make a record of their decision based on an analysis of the regional and/or extra-jurisdictional impacts or consequences; and

(d) ensuring that developments with extra-jurisdictional impacts are reviewed according to state and regionwide policies concerning [urban sprawl; environmental quality; historic preservation; safety from impacts of natural hazards; balancing jobs and housing; housing affordability; and/or provision of infrastructure].

[(2) Pursuant to its authority under Section [4-102(4)(d)], the [state planning agency] may adopt rules to administer the DRI program in accordance with the standards, criteria, and thresholds identified in Section [5-303] below, provided, however, that the agency first prepares and adopts a state land development plan pursuant to Sections [4-204 and 4-210][and a state biodiversity conservation plan is prepared and adopted pursuant to Sections [4-204.1] and [4-210].]]

5-302 Definitions

As used in this Act, the following definitions shall apply:

(1) "Development" means any building, construction, renovation, mining, extraction, dredging, filling, excavation, or drilling activity or operation; any material change in the use or appearance of any structure or in the land itself; the division of land into parcels; any change in the intensity or use of land, such as an increase in the number of dwelling units in a structure or a change to a commercial or industrial use from a less intensive use; any activity that alters a shore, beach, seacoast, river, stream, lake, pond, canal, marsh, dune area, woodlands, wetland, endangered species habitat, aquifer, or other resource area, including coastal construction or other activity.

(2) "Development of Regional Impact" or "DRI" means any development that, because of its character, magnitude, or location, would have substantial effect upon the health, safety, or welfare or more than one [county, city, town, or other political subdivision].

(3) "Development Permit" means any building permit, zoning permit, plat approval, rezoning, certification, variance, or other action having the effect of allowing development as defined in this Section.

(4) "Host Local Government" means the local government:

(a) in which the land on which a proposed development of regional impact is located; and

(b) that would have authority to exercise final development approval if the proposed development were not a development of regional impact.

(5) "Interested Agency or Entity" means any state, regional, and/or local government or agency whose jurisdiction lies entirely or partially within the geographic area encompassed by the proposed development of regional impact and whose programs and policies would be affected by the proposed development.

(6) "Primary Reviewing Agency" means the [regional planning agency] or host local government that has the authority under this Act to review a development of regional impact, hold public hearings on the proposed development, coordinate the involvement of other interested persons, agencies, or entities that are participants in the review, and issue a decision whether to approve, approve with conditions, or deny an application for a development of regional impact.

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