Growing Smart Legislative Guidebook

Chapter 5: State Land-Use Control Endnotes

[1 ] Michael Dear, "Understanding and Overcoming the NIMBY Syndrome," Journal of the American Planning Association 58, no. 3 (Summer 1992): 291-292.

[2 ] The siting of group homes raises many different (primarily legal) issues than does the siting of these other listed state facilities. Under the Fair Housing Act, 42 U.S.C. § 3601 et seq., the siting of group homes is protected against discrimination on the basis of race, color, religion, sex, national origin, mental or physical handicap, and families with children under age 18. Legal challenges concerning racial discrimination, equal protection, substantive due process, rights of association, exclusionary zoning, standing, presumptions of validity, and the Americans with Disabilities Act (to name a few) are not uncommon with respect to the siting of congregate living facilities. The U.S. Supreme Court has recently addressed many of these issues in City of Edmonds v. Oxford House, Inc., 115 S.Ct. 1776 (1995) which held that a zoning ordinance that limited the number of unrelated persons who may live together is not exempt from the FHA's requirement that a municipality make "reasonable accommodations" for handicapped housing.

[3 ] See Vicki Been, "What's Fairness Got to Do with It? Environmental Justice and the Siting of Locally Undesirable Land Uses," Cornell Law Review 78 (Spring 1993): 1002.

[4 ] Id., 1003, citing Regina Austin and Michael Schill, "Black, Brown, Poor& Poisoned: Minority Grassroots Environmentalism and the Quest for Eco-Justice,"Kansas Journal of Law and Public Policy 1 (1991): 71; and Luke W. Cole, "Empowerment as the Key to Environmental Protection: The Need for Environmental Poverty Law," Ecology Law Quarterly 19 (1992): 628.

[5 ] Id., 1028.

[6 ] Id., 1029.

[7 ] Id., 1029.

[8 ] Id., 1052-1055.

[9 ] While some state facilities such as libraries, courthouses, and even prisons, may not necessarily be site-dependent (i.e., they may be located virtually "anywhere"), other facilities like landfills require appropriate environmental features (e.g., soil type) as well as access to rail lines and freeway systems.

[10 ] Frank Popper, "The Great LULU Trading Game," Planning 58, no. 5 (May 1992): 15-17.

[11 ] Although not used by Popper, substate districts, (rather than counties or municipalities) are used as the basis for dividing the state into planning regions in this Section of the Legislative Guidebook. Because substate districts are created under a process that balances numerous criteria rather than geographic location alone, they should be a more equitable method of dividing the state for the purpose of siting state facilities. For more information about substate districts, see Section 6-602 of the Legislative Guidebook.

[12 ] Id.,16.

[13 ] Id.

[14 ] Connecticut General Assembly, Legislative Program Review and Investigations Committee, Siting Controversial Land Uses, (Hartford, Conn.: The Committee, January 1992), 6. This report rejected the idea of implementing a point system for state sitings of controversial land uses.

[15 ] Id. See also Vicki Been, "Compensated Siting Proposals: Is It Time to Pay Attention?," Fordham Urban Law Journal 21 (1994): 795.

[16 ] Id.

[17 ] Connecticut General Assembly, Legislative Program Review and Investigations Committee, Siting Controversial Land Uses, 6-7.

[18 ] For an analysis of the desirability of societal facilities, see Dear, "Understanding and Overcoming the NIMBY Syndrome," 291-294.

[19 ] This provision is modeled after a Connecticut statute for a state facility plan, found at Conn. Gen. Stat. Ann. § § 4b-23 (a)-(d).

[20 ] This model legislation assumes that the location of the state facility is not site-dependent and that the specific location is a factor that can be determined based on several variables. If the state facility were indeed site-dependent (i.e., the facility had to be located at a certain site due to the need for the facility, its specific function and/or its service area), then the purpose of any legislation would most likely be limited to devising techniques for applying a set of windfall or wipeout compensatory methods. See Donald Hagman and Dean Misczynski, eds., Windfalls For Wipeouts: Land Value Capture and Compensation (Chicago: American Society of Planning Officials, 1978).

[21 ] This section is based on the "Purpose and Goals" section of New York City Planning Commission, "Criteria for the Location of City Facilities," (adopted on December 3, 1990).

[22 ] Id.

[23 ] Id. This is a combination of two definitions in the New York City criteria, one for the reduction of facilities and one for the closure of facilities.

[24 ] This definition is largely based on the New York City definition of "facility," as found in New York City Planning Commission, "Criteria for the Location of City Facilities," (adopted on December 3, 1990).

[25 ] This information might also appear in the state capital budget and capital improvement program. See Section 4-303(1)(a), Contents of State Capital Budget and Capital Improvement Program, of the Legislative Guidebook.

[26 ] Examples would include community centers, day care centers, recreation areas, courthouses, and libraries.

[27 ] Examples would include hospitals, nursing homes, and recycling centers.

[28 ] Subparagraphs (c) through (e) are most appropriate in community districts with a high ratio of residential facility beds to population.

[29 ] Ideally, closings or reductions should occur in areas with high ratios of service supply to service demand.

[30 ] If the criteria in Sections 4-105 and 4-105 were contained in the Act itself, it would not be necessary to promulgate additional criteria by rulemaking.

[31 ] The process described is in Conn. Gen. Stat. § 4b-21 (West) which states in pertinent part:

...the governmental unit may, within ten days from the date of notification of such final decision, accept the commissioner's final decision, reject such decision and withdraw its request, or appeal to the governor. Upon such appeal [to the governor], the commissioner [of public works] shall submit a report to the governor stating the [property review] board's conclusions and supporting material therefor and the governmental agency shall submit a report to the governor stating its objections to such decision and its supporting material therefor. The governor shall, within thirty days of the receipt of such reports, make a decision which shall be binding on the parties involved. In the absence of any such appeal or withdrawal of request, the decision of the commissioner and the board shall be final and binding upon the governmental unit.

[32 ] This commentary is adapted, in part, from Stuart Meck, "Model Planning and Zoning Enabling Legislation: A Short History," and James F. Berry, "Areas of Critical State Concern," in Modernizing State Planning Statutes: The Growing Smart Working Papers, Vol. 1, Planning Advisory Service Report No. 462/463 (Chicago: APA, March 1996), 7-8, 105-109.

[33 ] For an excellent overview of land-use controls in environmentally sensitive areas, including areas of critical state concern, see Jon A. Kusler, Regulating Sensitive Lands (Cambridge, Mass.: Ballinger, 1980). Kusler provides valuable perspectives on program design, definition of areas, formulation of development standards, data gathering, and governmental roles.

[34 ] Daniel R. Mandelker, Environmental and Land Controls Legislation (New York: Bobbs-Merrill, 1976), 66.

[35 ] Id. Professor Mandelker notes:

For example, over-intensive development near major highway interchanges will attract traffic that crowds highway access and leads to highway congestion, and incidentally increases air pollution because of increased motor vehicle idling time. There is no incentive for local governments to take into account the effect of this development on adjacent public facilities; the state and independent agencies are powerless to override local government authorization of these developments.

[36 ] American Law Institute (ALI), A Model Land Development Code (Philadelphia, Pa.: ALI, 1976).

[37 ] L.A. Malone, Environmental Regulation of Land Use (Deerfield, Il: Clark Boardman Callaghan, 1994 Supp), § 13.01.

[38 ] The ALI Code defined a State Land Development Plan as a plan in words, map, text, and/or illustration form "setting forth objectives, policies, and standards to guide public and private development of land within the state." ALI Code, § 8-401(1).

[39 ] ALI, A Model Land Development Code, § 7-201(3).

[40 ] Id., 260.

[41 ] Id.

[42 ] Id.

[43 ] D.R. Mandelker, Environmental and Land Controls Legislation (New York: Bobbs-Merrill, 1976), 70. This book contains an extensive critique of the ALI Code critical areas process on pages 66-86, especially on pages 76-86. Mandelker comments that the critical areas process, as proposed in the Code, has a number of implementation problems, which he summarizes as follows:

Some of these problems arise from the geographical extent of critical areas, which are likely to be smaller than the local governments in which they are located. Development policies in critical areas may not be well coordinated with the land development policies in the remainder of the community. Other problems arise from the inability of state critical areas controls to effectively guide local government decisions on specific development applications, and from lack of coordination between critical areas control, and control over public facility siting that is authorized by other provisions of the ALI Code.

[44 ] See, e.g., Colo. Rev. Stat. § § 24-65.1-201, -202 to -502; Minn. Stat Ann. § § 116G.01 to .14; Nev. Rev. Stat, § § 321.655(2), .755, .770(1)(a); Ore. Rev. Stat. § 197.405; and Wyo. Stat. § § 9-8-102(a)(i), 9-8-202(a)(ix).

[45 ] Florida Environmental Land and Water Management Act of 1972, Fla. Stat. § § 380.012 et seq. For a discussion of other states, see L.A. Malone, Environmental Regulation of Land Use, Chap. 13.

[46 ] Fla. Stat. § § 380.05(1) to (2).

[47 ] Fla. Stat. § 380.05(1)(c).

[48 ] Id., § 380.05(1)(b).

[49 ] Id., § 380.05(5).

[50 ] Id., § 380.06(13).

[51 ] Id., § 380.05(20).

[52 ] Id., § § 380.05(13) and 380.07(2), respectively.

[53 ]Cal. Govt. Code, § § 66800-66801 (Lake Tahoe).

[54 ] N.C. Gen. Stat., § 113A et seq. (Coastal zone).

[55 ] 1977 Mass. Acts, Ch. 831 (Martha's Vineyard).

[56 ] N.Y. Exec. Law, § § 800-820. See Malone, Environmental Regulation of Land Use, § 13.03[1].

[57 ] N.Y. Exec. Law, § § 805-807. See Malone, Environmental Regulation of Land Use, § 13.03[1]. The Adirondack Park Plan is discussed in Chapter 6, Regional and Interstate Planning, Note on Existing Regional Plans.

[58 ] The Adirondack Park Agency consists of the state Commissioner of Environmental Conservation, the Secretary of State, the Commissioner of Commerce, and eight members appointed by the Governor and approved by the state senate. N.Y. Exec. Law, § 803.

[59 ] N.Y. Exec. Law, § 813.

[60 ] N.J.S.A., § § 13.18A-1-29. The Pinelands include many forest and wetland resources that are also protected under the federal National Parks and Recreation Act, 16 U.S.C., § 471i. See Malone, Environmental Regulation of Land Use, § 13.03[3].

[61 ] N.J.S.A. § 52:18A-196 et seq.

[62 ] New Jersey State Planning Commission, Communities of Place: The New Jersey State Development and Redevelopment Plan (Trenton, N.J.: The Commission, June 12, 1993), 84-91 (discussion of the Pinelands' significance and statement of the state plan's policies on the Pinelands).

[63 ] Va. Code § § 10.1-2100-2115. See Malone, Environmental Regulation of Land Use, § 13.03[2].

[64 ] Malone, Environmental Regulation of Land Use (1994 Supp), 13-28 to 13-19, citing Md. Nat. Res. Code, § § 8-1807, 8-1809(b); Horton, "Remapping the Chesapeake" in The New American Land 7, no. 7 (September/October 1987): 13; and Note, "The Chesapeake Bay Preservation Act: Does State Land Use Regulation Protect Interstate Resources?" William and Mary Law Review 31 (1990): 735, 753-5.

[65 ] Regional planning agencies are to include in their regional comprehensive plan those areas within the region that may be appropriate for nomination as areas of critical state concern pursuant to Sections 6-201(5)(d) and (5)(g)3 of the Legislative Guidebook.

[66 ] For an example of a specialized procedure regulating certain structures vulnerable to earthquakes and tsunamis in Oregon, see Ore. Rev. Stat. § § 455.446 to 455.447 and Ore. Admin. Rules § 632-05-000 et seq.

[67 ] This model was drafted by James F. Berry, an attorney and professor of biology at Elmhurst College in Elmhurst, Illinois.

[68 ] Areas that are frequently flooded may typically be governed through conventional floodplain management controls and a critical area designation would be unnecessary. For a good survey of current state practices, see Association of State Floodpain Managers, Floodplain Management 1995: State and Local Programs (Madison, Wisc: The Association, 1996). For an example of state legislative alternatives for implementing the National Flood Insurance Program, see Association of State Floodplain Managers, Model State Legislation for Floodplain Management: Basic Regulations, Statutes, and Innovative Techniques (Madison, Wisc.: The Association, 1982).

[69 ] A good definition of "geologically hazardous areas" is found in Wash. Rev. Code Ann. § 36.70A.030(9), which describes them as "areas that because of their susceptability to erosion, sliding, earthquake, or other geological events are not suited to the siting of commercial, residential, or industrial development consistent with public health or safety concerns."

[70 ] For example, the state could designate a highway corridor or series of interchange areas as an area of critical state concern.

[71 ] Similar language requiring the use of "best available science" appears in connection with designation and protection of critical areas in Washington State. See Wash. Rev. Code § 36.70A.172 (1994).

[72 ] On environmental risk assessment, see E.C. Palacios, "An Assessment of Relative Risk in Michigan," Planning and Zoning News 10 (August 1992): 5-18; on bioregionalism, see Keene Callahan, "Bioregionalism: Wiser Planning for the Environment?," Land Use Law and Zoning Digest 45 (August 1993): 3-9.

[73 ] Florida statutes provide that a proposed rule by the state Administrative Commission must be presented to the Florida legislature as follows:

A rule adopted by the commission pursuant to paragraph (b) designating an area of critical state concern and principles for guiding development shall be submitted to the President of the Senate and to the Speaker of the House of Representatives for review no later than 30 days prior to the next regular session of the Legislature. The Legislature may reject, modify, or take no action relative to the adopted rule. In its deliberations, the Legislature may consider, among other factors, whether a resource planning and management committee has established a program pursuant to s. 380.045 [of the Florida statutes]. In addition to any other data and information required pursuant to this chapter, each rule presented to the Legislature shall include a detailed description of the area of critical state concern, proposed principles for guiding development, and a detailed statement of how the area meets the criteria for designation as provided [in the statute]. (Fla. Stat. § 380.05(1)(c).)

In the Florida statutes, there are sections designating specific areas as areas of critical state concern, enacted after the passage of the original statute. See, e.g., Fla. Stat. § 380.055 (Big Cypress Area); § 380.0551 (Green Swamp Area); § 380.0552 (Florida Keys Area); and § 380.0555 (Apalachicola Bay Area). See also Ore. Rev. Stat. § § 197.405 (3) to (4), which provide that no designation of an area of critical concern shall take effect until it has been submitted to the Legislative Assembly's joint legislative committee on land use and has been approved by the Legislative Assembly, which has the authority to adopt, amend, or reject the proposed designation.

[74 ] The intention here is to prevent an onslaught of development proposals that would conflict with the purposes of critical area designation while the designation process is still underway. Interim regulation is not, however, without pitfalls. If the hiatus on development approval extends for too long, there may be a taking claim for unnecessary delay. There are three choices: (1) interim regulation of development can occur between the time there is a concrete proposal for designation of an area of critical state concern by the state planning agency and the time the proposal is either adopted or rejected; (2) interim regulation of development can occur between the time of the initial recommendation by a state or regional agency and the time the proposal is either adopted or rejected. While the latter may be preferable, the former reduces the amount of time that development is restricted. The third choice is to employ the approach used in Florida:

If an area of critical state concern has been designated under subsection (1) [of Fla. Stat. § 380.05] and if land development regulations for the area of critical state concern have not yet become effective under subsection (6) or subsection (8), a local government may grant development permits in accordance with such land development regulations as were in effect immediately prior to the designation of the area as an area of critical state concern. (Fla. Stat. § 380.05(17).)

[75 ] The model reflects the possibility that a regional agency may have the authority to grant some type of development permission in the area of critical state concern.

[76 ] See Colorado (Colo. Rev. Stat. Ann. § 24-65-101 (1990 and 1995 Cum. Supp.)); Florida (Fla. Stat Ann. § 380.06 (1988 and 1996 Pamph. Supp)); Georgia (Ga. Code § 50-8-7.1(b)(3) (1989)); Massachusetts (Cape Cod Commission Act, enacted by Ch. 716 of the Acts of 1989 and Ch. 2 of the Acts of 1990, § § 12, 13); Maine (Me. Rev. Stat. Ann. Tit. 38, Art. 6 § 481 et seq. (1989 and 1993 Cum. Supp); Minnesota (Minn. Stat. Ann. § 473.173 (1994 and 1996 Cum. Supp.)); Vermont (Vt. Stat. Ann. Tit. 10, Ch. 151, § 6081 et seq.); and Washington (Wash. Rev. Code Ann. § 36.70A.350 (New Fully Contained Communities) and § 36.70A.360 (Master Planned Resorts)) (1996 Cum. Supp.).

[77 ] American Law Institute (ALI), A Model Land Development Code (Philadelphia, Pa.: ALI, 1976). Commentary on Art. 7, 248-254.

[78 ] ALI Code, Art. 7, § 7-301(1); 269.

[79 ] Developments of regional benefit are defined in the ALI Code to include:

(a) development by a governmental agency, other than the local government that created the Land Development Agency or another agency created solely by that local government;

(b) development that will be used for charitable purposes, including religious or educational facilities, and that serves or is intended to serve a substantial number of persons who do not reside within the boundaries of the local government creating the Land Development Agency;

(c) development by a public utility if the development is or will be employed to a substantial degree to provide services in an area beyond the territorial jurisdiction of the local government creating the Land Development Agency; and

(d) development of housing for persons of low and moderate income.

ALI Code, Art. 7, § 7-301(4).

[80 ] Fla. Stat. Ch. 380, esp. § 380.06 (Developments of regional impact).

[81 ] For similarities of criteria, compare Fla. Stat. § 380.06(2)(a) with ALI Code, Art. 7, § 7- 402. See also John DeGrove, Land, Growth and Politics (Chicago: Planners Press, 1984), 119.

[82 ] For examples of the review procedures, see, e.g., Fla. Stat. § § 380.06(9) (conceptual agency review); 380.06(21) (comprehensive application); 380.06(22) (downtown development authority application); and 380.61 (Florida Quality Developments program).

[83 ] Cape Cod Commission Act, enacted by Ch. 716 of the Acts of 1989 and Ch. 2 of the Acts of 1990 (§ 12(c)(1-8)).

[84 ] Id.

[85 ] Districts of critical planning concern are areas containing significant natural, coastal, scientific, cultural, architectural, archaeological, historic, economic, or recreational resources. Section 10, Cape Cod Commission Act, enacted by Ch. 716 of the Acts of 1989 and Ch. 2 of the Acts of 1990 (§ 12(c)(1-8)).

[86 ] Report of the Cape Cod Commission Regulatory Review Task Force, September 7, 1994.

[87 ] Vt. Stat. Ann. Tit. 10, § 6046. See also Thomas R. Melloni and Robert I. Goetz, "Planning in Vermont" in P.A. Buchsbaum and L.J. Smith, eds., State and Regional Comprehensive Planning (Chicago: American Bar Association, 1993), 156-74.

[88 ] Vt. Stat. Ann., Tit. 10, Ch. 151, § § 6086(a)(9)(A)-(L).

[89 ] John DeGrove, Land, Growth, and Politics (Chicago: Planners Press, 1984), 75.

[90 ] Minn. Stat. § 473.173.

[91 ] Norman Williams, American Land Planning Law 5, § 160.28 (Deerfield, Ill.: Clark Boardman Callaghan, 1985), 682.

[92 ] Fla. Admin. Code, Ch. 28-24.010. Developments Presumed to be of Regional Impact.

[93 ] Vt. Stat. Ann. Tit. 10, Ch. 151 § § 6081-6091.

[94 ] Cape Cod Commission Act § 12(c)(6).

[95 ] Procedures and Guidelines for the Review of Developments of Regional Impact, Georgia Department of Community Affairs, November 1991.

[96 ] See Cape Cod Commission Enabling Regulations Governing Review of Developments of Regional Impact.

[97 ] ALI Code, Art. 2, § 2-201.

[98 ] Id., Art. 7, § 7-303.

[99 ] The state planning agency, through rule making, would establish the contents of the standard DRI application form. Examples of submission requirements might include: the applicant's own assessment of the regional impacts of the proposed development; the number of copies of development plans; the names and addresses of adjoining property owners; the location of existing and proposed utilities needed to serve the proposed development; and information concerning the proposed uses, such as number of employees and residents.

[100 ] States that have a state-level environmental policy act in place when the DRI program is enacted are strongly urged to combine data gathering and review and analysis proceedings for both requirements into a joint process. Chapter 12 of the Legislative Guidebook will provide model legislation on integrating a state-regional-local planning and land development regulation system (including a DRI program) with a state environmental policy act.

[101 ] The regional planning agency may also require the developer to complete a formal DRI application form to supplement the initial application that was referred from the host local government.

[102 ] Upon receipt of written approval of a DRI, the developer may be required to secure any necessary permits (e.g., building, environmental, etc.) required by the host local government or any state, regional, or other local agency with jurisdiction, to the extent that these permits have not been consolidated into DRI approval.

[103 ] For a description of a development agreement statute, see John Delaney, "The Developer's/Landowner's Perspective of Planning Law Reform," in Modernizing State Planning Statutes: The Growing Smart Working Papers, Planning Advisory Service (PAS) Report 462/463 (Chicago: APA, March 1996), 31-37.

[104 ] New York Department of City Planning, "Locating City Facilities: A Guide to the 'Fair Share' Criteria," (New York: N.Y.: The Department, June 1991), 1.

[105 ] William Valletta, "Siting Public Facilities on a Fair Share Basis in New York City," The Urban Lawyer 25, no. 1 (Winter 1993): 1, n. 3. This article states "...New York City undertook the drafting of a new City Charter in 1989 after the U.S. Supreme Court ruled that its historic governing body, the Board of Estimate, was unconstitutional under the one-person, one-vote doctrine." The mandate to develop the fair-share criteria is found at N.Y.C. Charter § 203(a) (1989).

[106 ] Valletta, "Siting Public Facilities on a Fair Share Basis in New York City," 2.

[107 ] New York Department of City Planning, "Locating City Facilities: A Guide to the 'Fair Share' Criteria," 3.

[108 ] Id., 5.

[109 ] Id.

[110 ] Id.,

[111 ] 6.Id.

[112 ] N.Y.C. Charter § 197-c.

[113 ] Valletta, "Siting Public Facilities on a Fair Share Basis in New York City," 5.

[114 ] Id., 8, citing N.Y.C. Charter § § 204(a); 204(e)(2); 204(f); and 204(g)(1).

[115 ] Valletta, "Siting Public Facilities on a Fair Share Basis in New York City," 12-13 (citations omitted). Valletta wrote: "The intent of fair share is to regulate the process, make it more open, and bring into it previously unenfranchised participants. It rests on the hope that by making more people responsible parties in the deal-making, the public perception of illegitimacy will be lessened." Id., 20.

[116 ] New York City Department of City Planning, "Fair Share: An Assessment of New York City's Facility Siting Process," (New York, N.Y.: The Department, Spring 1995).

[117 ] Id., 14.

[118 ] Id., 29-30.

[119 ] New York City Department of City Planning, "Fair Share: An Assessment of New York City's Facility Siting Process," 20.

[120 ] Id., 21.

[121 ] New York City Planning Commission, "Criteria for the Location of City Facilities," (adopted on December 3, 1990).

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