Growing Smart Legislative Guidebook

Chapter 4 (part 2): State Planning

4-202 State Agency Strategic Plan of Operation

(1) A state agency shall prepare and adopt a strategic plan for the functional areas covered by its operations. Not later than [March 1] of each [even-numbered year], the agency shall issue a plan covering [4] years beginning on that date.

(2) The strategic plan of operation shall include:

(a) a statement of the mission and goals of the state agency;

(b) an identification of the groups of people served by the state agency, their approximate numbers, and, of those groups, those having priorities for receiving service from the agency, either established by law or by the agency;

(c) projections of changes in the character, composition, or size of those groups anticipated during the term of the plan;

(d) an analysis of expected changes in the services provided by the agency due to existing, pending, or potential changes in federal or state laws or regulations, or other factors outside of the control of the agency;

(e) an analysis of the use of the agency's resources to meet current and future needs, and an estimate of additional resources that may be necessary to meet those needs;

(f) a description and a [5]-year schedule of the means and strategies for meeting the agency's needs, including future needs[, an analysis of those means and strategies within the context of goals and policies in the state comprehensive plan described in Section [4-203]], and costs. Means may include organizational or management initiatives, facility or physical infrastructure improvements, or proposals for programs and services. The plan shall indicate the existing statutory authority by which the agency may carry out the means and strategies. If such authority does not exist, the agency may propose additional legislative authority;

(g) a description of benchmarks[61] to measure the output or outcome of the agency's efforts;

(h) in the years following the first year of its adoption, actual benchmark information from agency operations, so that by its [third edition], the plan and all subsequent editions may provide benchmark information for at least the immediately previous [5] years;

(i) an evaluation of the agency's progress in achieving its mission and goals since the previous edition of the plan; and

(j) any other information that the agency may determine is needed in the plan.

(3) The plan shall be prepared in a format and manner prescribed by [the office of the governor or the office of management and budget or the state planning agency].

(4) Prior to submission of its plan to the [the office of the governor or the office of management and budget or the state planning agency], each state agency shall hold public hearings and/or workshops on the draft plan and shall allow at least a [30]-day period for public comment. A state agency shall publish a notice informing the public of the date, time, and location of the hearings and/or workshops of the availability for inspection or purchase of the draft plan in newspapers of general circulation in the state at least [30] days in advance of the hearings and/or workshops.

(5) Subsequent to the public hearings and/or workshops, the director of the state agency shall submit the plan and a summary of comments received at the hearings and/or workshops to the [office of the governor], which shall review the plans [for consistency with the state comprehensive plan, state land development plan, [and] state biodiversity conservation plan, [and other instructions and directives it may have issued]]. The [office of the governor] shall consider all written comments received in formulating any required revisions. Within [30] days, reviewed plans shall be returned to the agency, together with any required revisions.

(6) The director of the state agency shall, within [30] days of the return of its state agency plan, incorporate all revisions required by the governor and the director of the state agency shall adopt the plan. The state agency shall then transmit copies of its final plan to the governor and to members of the state legislature and shall make the report available to the public. Copies shall be deposited in the state library and shall be sent to all public libraries in the state that serve as depositories for state documents.

(7) State agency strategic plans developed pursuant to this Act are not rules and therefore shall not be subject to [the state administrative procedures act].


 

Commentary: State Comprehensive Plan

The following statutory model describes a state comprehensive plan whose goals and policies are intended to provide direction to state agencies and, if desired, regional agencies and local governments. The descriptions of background analyses and potential topical areas covered in the plan are drafted to give the state wide berth in designing the plan. State agency strategic plans (see Section 4-202) and the state capital budget (Section 4-301 et seq.) are to be linked to the state comprehensive plan.


 

4-203 State Comprehensive Plan

(1) The [state planning agency or office of the governor or state planning commission] shall, within [36] months of the effective date of this Act, prepare, with the involvement of all state agencies and the citizens of the state, a state comprehensive plan.

(2) The purpose of the state comprehensive plan is to ensure the coordinated, integrated, and orderly social, physical, and economic growth of the state that achieves statewide goals. The plan is to provide a basis for identifying critical issues facing the state, determining state priorities, allocating limited state resources, and harmonizing the plans of various [state or state, regional, and local] governmental units.

(3) In preparing the state comprehensive plan, the [state planning agency or office of the governor or state planning commission] shall undertake supporting studies that are relevant to the topical areas included in the plan, or may use studies conducted by others concerning the future growth of the state, including, but not limited to:

(a) population and population distribution of the state and regions of the state, which may include projections and analyses by age, education level, income, employment, or other appropriate characteristics;

(b) natural resources, which may include air, water, open spaces, scenic corridors or viewsheds, forests, soils, rivers and other waters, shorelines, fisheries, wildlife, and minerals;

(c) geology, ecology, and other physical factors of the state and regions of the state;

(d) agriculture;

(e) the use of land and the conversion of nonurban land to urban use;

(f) the presence, potential for, and mitigation of natural hazards, including the identification of areas within the state subject to natural hazards;

(g) public safety;

(h) the economy of the state and regions of the state, which may include amount, type, and general location of commerce and industry and trends and forecasts in economic activity;

(i) amount, type, quality, affordability, and geographic distribution of housing and relationship of affordable housing to job sites;

(j) existing or emerging technologies in the state and regions of the state;

(k) energy, including its type, availability, and use;

(l) general location and extent of existing or currently planned major transportation facilities of all modes, and utility, recreational, cultural, and other facilities of statewide significance;

(m) governmental organization and intergovernmental relations;

(n) elementary, secondary, undergraduate and postgraduate and vocational education, whether public or private;

(o) human and social services; and

(p) the identification of features of significant statewide architectural, scenic, cultural, historical, or archaeological interest.

(4) The state comprehensive plan shall be composed of goals and policies that are stated in plain, succinct, easily-understandable words. The goals and policies shall be statewide in scope or interest and shall be consistent and compatible with one another, but may address certain regions of the state provided there is a statewide interest in so doing. The plan shall be a direction setting document, giving policy guidance to state agencies[, regional agencies, and local governments]. The plan shall enumerate goals and policies regarding proposed or foreseeable changes in each of the following areas, based on relevant studies in identified in paragraph (3) above, and shall describe how the selected goals and policies were derived from an assessment of their probable social, environmental, economic, and related consequences:

• The following list is an example of topical areas that may be covered by a state comprehensive plan.

(a) agriculture;

(b) urbanization;

(c) air quality;

(d) water quality;

(e) natural resources, living and non-living;

(f) natural hazards and disasters;

(g) historic, scenic, and archaeological resources;

(h) economic development;

(i) housing, including affordable housing;

(j) education;

(k) recreational and cultural development;

(l) human and social services;

(m) public safety;

(n) transportation;

(o) technological change;

(p) governmental organization and intergovernmental relations; and

(q) citizen involvement.

(5) Prior to submission of its plan to the [office of the governor], the [state planning agency or office of the governor or state planning commission] shall hold public hearings and workshops on the draft state comprehensive plan and shall allow at least a [60]-day period for public comment by citizens, affected public agencies, affected employee representatives, and other interested parties.[62] The [state planning agency or office of the governor or state planning commission] shall publish a notice informing the public of the date, time, and location of the hearings and workshops and of the availability for inspection or purchase of the draft plan in newspapers of general circulation in the state at least [60] days in advance of the hearings and workshops.

[or]

(5) The [state planning agency or office of the governor i state planning commission] shall conduct public hearings and workshops on the draft plan as provided by Section [4-209].

(6) Subsequent to the public hearings and workshops, the [state planning agency or office of the governor or state planning commission] shall submit the draft plan and a summary of comments received at the hearings and workshops to the [office of the governor] for review [for consistency with any instructions and directives it may have issued]. The [office of the governor] shall consider all written comments received when formulating any required revisions. Within [30] days, the reviewed draft plan shall be returned to the [state planning agency or office of the governor or state planning commission], together with any required revisions.

(7) The [state planning agency or office of the governor or state planning commission]] shall, within [30] days of the return of the draft state comprehensive plan, incorporate all revisions required by the [office of the governor]. The plan shall then be adopted in the manner provided by Section [4-210] and shall be certified in the manner provided by Section [4-211].

(8) The [state planning agency or executive office of the governor or state planning commission] shall, on a [biennial] basis, review the state comprehensive plan with state agencies significantly affected by the provisions of the particular section under review, and may propose, in writing, amendments to the plan, accompanied by an explanation of the need for such amendments. Such changes shall be approved in the same manner as the adoption of the original plan.


 

Commentary: State Land Development Plan

If the state decides that it is going to be directly engaged in land development planning, its interests and objectives must be clearly defined. The state's involvement may be justified if:

1. The state has identified land uses or lands with certain characteristics as having a statewide or regional interest (e.g., wetlands, coastal zones, earthquake fault zones, landslide areas, floodplains, and large-scale developments with multijurisdictional impacts, such as regional shopping centers, sports complexes, and airports). Alternately, the state may have determined that certain local land-use decisions may have tremendous impacts on state facilities, such as state parks, scenic highways, or state-financed highway interchanges;

2. The state wishes to ensure that land-use and related plans of regional agencies or local government reflect applicable state goals, policies, and guidelines through a certification process;

3. The state wishes to set statewide guidelines so that certain classes of land uses develop in a specified way in order to achieve certain objectives, as in setting minimum density ranges for urban development in an effort to prevent or reduce urban sprawl;

4. The state wishes to engage in the direct regulation of land development, as in areas of the state where there are no capable governmental units to undertake such regulation or because of the impact of development on state-owned or state-financed facilities; and/or

5. The state wishes to plan for lands that it owns or for which it is otherwise responsible.

The model legislation below provides for a state land development plan that establishes goals, policies, and guidelines for these situations.[63] A land-use plan map is not a necessary component of the state land development plan, although the model legislation makes provision for "maps," should they be desired. Rather, the plan is a framework from which more detailed, site-specific regulations would be crafted, state-level administrative decisions would be made, and regional and local plans would be designed. For example, from a statewide perspective, it may make little difference if an urban growth area boundary is located on one side of a local road or the other; that determination is, generally speaking, a local one (although there might be a state interest if a state route were involved and the ultimate capacity of the road would be affected by the intensity of development along it). On the other hand, the criteria by which such growth areas are mapped and the standards for the intensity or density of land development within the urban growth area would have a statewide applicability and interest.


 

4-204 State Land Development Plan

(1) The [state planning agency] shall, within [36] months of the effective date of this Act, prepare a state land development plan.

(2) The purposes of the state land development plan are to:

(a) ensure the orderly planning of lands and categories of development which the state has identified as having a state interest; and

(b) provide policy direction for state, regional, and local actions necessary to implement the state comprehensive plan with regard to the physical development of the state.

(3) In preparing the state land development plan, the [state planning agency] shall undertake supporting studies that are relevant to the subject areas identified in paragraph (5) below, or may use studies conducted by others concerning the future growth of the state, including, but not limited to:

(a) population and population distribution of the state and regions of the state, which may include projections and analyses by age, education level, income, employment, or other appropriate characteristics;

(b) natural resources, which may include air, water, open spaces, scenic corridors or viewsheds, forests, soils, rivers, and other waters, shorelines, fisheries, wildlife, and minerals;

(c) geology, ecology, and other physical factors of the state and regions of the state;

(d) use of land for various purposes, intensities, housing or population densities, and the rates of conversion of nonurban land to urban use;

(e) the identification and extent of land areas within the state subject to natural hazards and the assessment of the degree of risk associated with those hazards;

(f) the economy of the state and regions of the state, which may include amount, type, and general location of commerce and industry and trends and forecasts in economic activity;

(g) amount, type, quality, affordability, and geographic distribution of housing and relationship of affordable housing to job sites;

(h) general location and extent of existing or currently planned major transportation facilities of all modes, and utility, educational, recreational, cultural, and other facilities of statewide significance; and

(i) the identification of features of significant statewide architectural, scenic, cultural, historical, or archaeological interest.

(4) In preparing the state land development plan, the [state planning agency] [shall or may] take into account existing adopted plans of state and regional agencies and of local governments to the extent such plans are consistent with or do not conflict with state interests.

(5) The state land development plan shall consist of goals, policies, and guidelines in text [and maps] relating to the physical development of the state. The plan may contain goals, policies, and guidelines to:

(a) identify and manage the development of areas of critical state concern pursuant to Section [5-201 et seq.];

(b) define the categories of development to be classified as developments of regional impact pursuant to Section [5-301 et seq.];

(c) provide the basis for establishing urban growth areas as defined in Section [6-403(1)(a)] and the minimum standards of land-use intensity and net density within them in order that such growth areas may be delineated in regional and local plans;

(d) direct the planning and the development of land in or surrounding state transportation corridors, public transportation corridors, interchanges on limited access facilities, and airports of regional or state significance;

(e) identify [a hierarchy of] urban and rural growth centers for the purposes of state infrastructure and other investment;

(f) identify actions to improve the ability of the state and other governmental units to prevent or minimize damages from future disasters that affect land and property subject to natural hazards;

(g) establish priorities for state acquisition of land and interests in land for natural resources protection, scenic corridor or viewshed protection, open space and recreational needs, water access, and natural hazard mitigation purposes;

(h) set forth approaches to establish solutions to the need for affordable housing;

(i) provide for the integration of the state's policy for its physical development in the areas of air quality, transportation, and water resources, with particular respect to federal laws and regulations;

(j) define specific regional and local levels of responsibility in the preparation of comprehensive plans to ensure consistency of those plans with the state land development plan[, the state biodiversity conservation plan,] and the state comprehensive plan; and

(k) manage land that is owned or leased by, or is otherwise under the control of, the state.

(6) Prior to submission of its plan to the [office of the governor], the [state planning agency] shall hold public hearings and workshops on the draft state land development plan and shall allow at least a [60]-day period for public comment by citizens, affected public agencies, affected employee representatives, and other interested parties.[64] The [state planning agency] shall publish a notice informing the public of the date, time, and location of the hearings and workshops and of the availability for inspection or purchase of the draft plan in newspapers of general circulation in the state at least [60] days in advance of the hearings and workshops.

[or]

(6) The [state planning agency] shall conduct public hearings and workshops on the draft plan as provided by Section [4-209].

(7) Subsequent to the public hearings and workshops, the [state planning agency] shall submit the draft plan and a summary of comments received at the hearings and workshops to the [office of the governor], which shall review the draft plan for consistency with the state comprehensive plan[, [and] state biodiversity conservation plan,][and any other instructions and directives it may have issued]. The [office of the governor] shall consider all written comments received when formulating any required revisions. Within [30] days, the reviewed draft plan shall be returned to the [state planning agency], together with any required revisions.

(8) The [state planning agency] shall, within [30] days of the return of the draft state land development plan, incorporate all revisions required by the [office of the governor]. The plan shall then be adopted in the manner provided by Section [4-210] and shall be certified in the manner provided by Section [4-211].

(9) The [state planning agency] shall, on a [biennial] basis, review the state land development plan in consultation with governmental agencies, organizations, and persons affected by the plan, and may propose, in writing, amendments to the plan, accompanied by an explanation of the need for such amendments. Such changes shall be approved in the same manner as the adoption of the original plan.


 

Commentary: State Biodiversity Conservation Plan

[65]

Several states, including Florida, Maryland, and New Jersey, have developed statewide biodiversity conservation plans. These state biodiversity conservation plans map important conservation areas throughout the state by considering the full spectrum of species including plants, invertebrates, natural communities (e.g., various types of grasslands, forests, etc.) as well as more traditional targets such as mammals, birds, and other vertebrates. By identifying key wildlife areas across the state, such plans seek to proactively address the most pressing threat to biodiversity in this country, namely the degradation and loss of habitat.[66] Biodiversity plans are becoming more common because improving biological information and geographic information systems (GIS) have allowed states to do regional assessments of biodiversity. Conservation biologists and policy makers alike recognize the need for map-based information on important areas for biodiversity. This information is ideally suited for: (1) guiding open space acquisition; (2) integration with state, regional and local comprehensive plans; (3) improving the process of environmental decision-making (including permit review). A statewide plan provides a framework for consistency in state, local and private land conservation efforts, instead of piecemeal permitting and habitat destruction that nibbles away at important habitat and marginal habitat alike. This large-scale perspective is also necessary for identifying the large areas and wildlife corridors that are needed to maintain biological diversity, as well as areas where development and other activities would have little impact to biodiversity.

Generally, the comprehensive biodiversity planning efforts to date make use of existing biodiversity survey and habitat information. The goal of the plans is to identify a network of locations that best represent the native biodiversity with enough acreage, redundancy and connectivity so as to allow for ecosystems and their species to persist into the future. In each state, a natural heritage program (often located within a state department of natural resources or state fish and wildlife agency) inventories the state for rare species and vegetation types. This information is available to planners from the programs through the Association for Biodiversity Information, a non-governmental organization that supports and binds together the state heritage programs with standard methods.[67] Additional information may be necessary to ensure comprehensive coverage. Information is also available from the federal government, especially the Gap Analysis Program that develops and supplies map-based wildlife habitat information for state conservation planning in each of the 50 states. As of January 2001, 39 state analyses had been completed and the remaining states are all underway.[68] NOAA's Coastal Change Analysis Program also provides habitat data for aquatic and terrestrial species in coastal watersheds, offshore coral reefs, algae, and seagrass beds in the photic zone.[69] The health of these near shore habitats depends in part on the land-use decisions, and therefore should be considered in land use planning. Additional information can be considered, including state biological expert opinion, existing natural areas, recovery and management plans, and other federal datasets (FEMA 100-year flood-plains, National Wetlands Inventory, etc.) are also included.

A major source of maps and information for state biodiversity conservation plans are ecoregional plans that The Nature Conservancy (TNC) is developing throughout the U.S. Ecoregional plans seek to ensure "the long term survival of all viable native species and community types through the design and conservation of portfolios of sites within ecoregions"[70] The plans that TNC offices produce should be valuable resources for planners in that they identify important biological areas using heritage program information and expert biological opinion.

(1) Florida. In 1994 Florida's Game and Freshwater Fish Commission produced a comprehensive state biodiversity plan entitled Closing the Gaps in Florida's Wildlife Habitat Conservation System that not only identified existing conservation lands, but also additional areas that would be necessary to protect the state's wildlife including rare plants, animals, and vegetation types.[71] In total 33 percent of the state was identified as important conservation areas; two-thirds of the areas were in public ownership. This effort was expanded upon by the Florida Greenways program which focused more on the connectivity of the conservation areas yielding another comprehensive state map, the Florida Ecological Network. This Network displays important conservation and open space areas similar to the Maryland GIA discussed below.[72] Under Florida statute,[73] Florida's Department of Environmental Protection (DEP) is currently responsible for planning greenways, and the Florida Greenways and Trails Coordinating Council assists and advises DEP.[74] The Greenways program informs the state's land acquisition efforts; the Florida Forever Act of 1999 provides $3 billion over 10 years for conservation and recreational lands acquisition.[75]

(2) Maryland. Through a combination of mapping, and linking and protecting natural areas, the Maryland GreenPrint program will allow Maryland to preserve a statewide conservation network. Formalized in 2001, the program is scheduled to receive a projected total of $145 million over five years. The program will also coordinate with the existing land preservation efforts under Maryland's Program Open Space and Rural Legacy Programs. For the mapping component of the GreenPrint program, the Maryland Department of Natural Resources (DNR) created a Green Infrastructure Assessment (GIA) to identify a network of greenways that serves to link together and protect the most critical remaining lands before they are lost or fragmented. A proactive use of available information developed by different state and federal agencies, the GIA uses GIS and principles of landscape ecology to identify hubs, nodes, and corridors for protection and/or restoration. The goal of the project is to "identify an ecologically sound open space network, and ultimately, to incorporate the agreed upon network into local land conservation planning".[76] DNR has conducted workshops with representatives from each county's planning and zoning department, parks and recreation department, and others to review the maps and the GIS model. Because much of the network also serves recreational needs, the Maryland Greenways Commission implements the GreenPrint program.[77]

(3) New Jersey. The Landscape Project, initiated by the New Jersey Division of Fish Game and Wildlife's Endangered and Non-game species program in 1994, is an ecosystem-level approach to the long-term protection of rare species and critical habitat throughout the state of New Jersey. The goal of the project is "to protect New Jersey's biological diversity by maintaining and enhancing rare wildlife populations within healthy functioning ecosystems."[78] The project seeks to make scientifically sound information easily accessible to planning and protection programs throughout the state. The products may serve as the basis for developing habitat protection ordinances, critical habitat zoning, or acquisition and management projects. The project also anticipates their products will reduce endangered and threatened species conflicts through better planning. GIS maps are available for downloading through the New Jersey Department of Environmental Protection web site www.state.nj.us/dep/gis.

(4) Oregon. A diverse set of private stakeholders came together to collaboratively develop a statewide strategy for conserving Oregon's biological diversity. The product of those labors is a 1998 publication, Oregon's Living Landscape, which describes each one of the state's ecological regions and maps out conservation opportunity areas for the entire state.[79] Although the plan is not state authorized, it does provide a good model state biodiversity conservation plan because of its inclusive process and reliance on existing information and expertise within the state. As a result of the effort, Oregon's governor appointed a task force to work toward implementing the plan in the Willamette Valley, including the city of Portland.

Model Statute

Section 4-204.1 below is model statute for a state biodiversity conservation plan prepared by a state department of natural resources, fish and wildlife agency, or other designated state agency. Based in part on the approach in the 1994 Florida report described above, the state plan is intended to identify land areas in the state where actions should be taken to manage and conserve the state's biodiversity resources, in particular to protect key focal species. The model describes a series of underlying studies and analyses that should be undertaken to provide a basis for formulating goals, policies, and guidelines as well as implementing measures. The process for preparing and adopting the plan is similar to that for the state transportation plan (Section 4-205, below) and other plans with statewide application.


 

4-204.1 State Biodiversity Conservation Plan

(1) The [state department of natural resources or state fish and wildlife agency or other designated state agency] shall, within [24] months of the effective date of this Act, prepare a state biodiversity conservation plan.

(2) The purposes of the state biodiversity conservation plan are to to identify land areas in the state that must be conserved and managed in order to ensure the long-term survival of the state's biodiversity resources and to propose goals, policies, guidelines, and implementing actions to conserve and manage these resources.

(3) In preparing the state biodiversity conservation plan, the [state department of natural resources or state fish and wildlife agency or other designated state agency] shall undertake supporting studies, or may utilize studies conducted by others concerning, but not limited to, the following:

(a) mapped and written descriptions of statewide land cover, including an identification of natural vegetation, wetland communities, arid lands, and disturbed land cover;

(b) an inventory and assessment of federally [and state] listed endangered and threatened plant and animal species, rare and endemic species, umbrella and indicator species, species that are commercially important in the state, their habitat, including food source, denning and nursery areas, and migratory routes; and changes in their population and habitat, to the extent such information is available;

(c) mapped and written descriptions of public lands capable of providing long-term protection for federal [and state] endangered and threatened species, including national parks, forests, preserves, recreation areas, wildlife refuges, and military lands; state parks, preserves, and forests; state-owned wildlife management areas; water management district lands; nature preserves owned by local government; and private lands owned or managed by conservation groups. Such descriptions may include any limitations or threats to the ability of such lands to provide long-term protection for these species, including, but not limited to, outdoor recreation, fire suppression, noise pollution, runoff and sedimentation; and loss of migratory corridors within such lands;

(d) studies supporting the designation of areas of critical state concern pursuant to Sections [5-201] et seq.;

(e) description and analysis of factors contributing to the loss of biological diversity, including the species described in subparagraph (b) above; and

(f) an analysis of the impact of existing adopted plans of state and regional agencies and of local governments and plans being proposed for adoption to the extent that they affect or may affect biodiversity resources of the state.

(4) The state biodiversity conservation plan shall consist of:

(a) summaries of and maps based on relevant studies described in paragraph (3) above;

(b) goals, policies, and guidelines that, at a minimum, describe state priorities in managing and conserving biodiversity resources and state coordination of the management of biodiversity resources with efforts of federal and regional agencies and local governments, and of private conservation organizations;

(c) the identification of focal species and, in mapped and written form, land areas that are their habitat for the purposes of habitat management and conservation;

(d) implementing actions, including, but not limited to, proposals for: changes in state administrative rules and state agency procedures; legislation; design guidelines for state capital projects; acquisition of land and interests in land; transfer of development rights; mitigation banking; other relevant actions by state and regional agencies and local governments, and private organizations and individuals, including measures to manage and conserve the habitat areas (including food source, denning, and nursery areas and migratory routes) of focal species; costs and sources of funding for implementing actions; and the agency or agencies responsible for implementation; and

(e) benchmarks by which changes in the state's biodiversity may be monitored over time.

(5) Prior to submission of its plan to the [office of the governor], the [state department of natural resources or state fish and wildlife agency or other designated state agency] shall hold public hearings and workshops on the draft state biodiversity conservation plan and shall allow at least a [60]-day period for public comment by citizens, affected public agencies, affected employee representatives, and other interested parties.[80] The [state department of natural resources or state fish and wildlife agency or other designated state agency] shall publish a notice informing the public of the date, time, and location of the hearings and workshops and of the availability for inspection or purchase of the draft plan in newspapers of general circulation in the state at least [60] days in advance of the hearings and workshops.

[or]

(5) The [state department of natural resources or state fish and wildlife agency or other designated state agency] shall conduct public hearings and workshops on the draft plan as provided by Section [4-209].

(6) Subsequent to the public hearings and workshops, the [state department of natural resources or state fish and wildlife agency or other designated state agency] shall submit the draft state biodiversity conservation plan and a summary of comments received at the hearings and/or workshops to the [office of the governor], which shall review the draft plan for consistency with the state comprehensive plan [and] state land development plan [and any other instructions and directives it may have issued]. The [office of the governor] shall consider all written comments received when formulating any required revisions. Within [30] days, the reviewed plan shall be returned to the [department or agency], together with any required revisions.

(7) The [state department of natural resources or state fish and wildlife agency or other designated state agency] shall, within [30] days of the return of the draft state biodiversity conservation plan, incorporate all revisions required by the [office of the governor]. The plan shall then be adopted in the manner provided by Section [4-210] and certified in the manner provided by Section [4-211].

(8) The [state department of natural resources or state fish and wildlife agency or other designated state agency] shall, on a [biennial] basis monitor the benchmarks contained in the state biodiversity conservation plan and shall review the plan with state agencies and other agencies, organizations and individuals significantly affected by the provisions of the particular section under review, and may propose, in writing, amendments to the plan, accompanied by an explanation of the need for such amendments. Such changes shall be approved in the same manner as the adoption of the original plan.

[(9) A state biodiversity conservation plan prepared and adopted pursuant to this Section shall, in and of itself, have no regulatory effect on land areas it identifies as habitat for focal species.]

• The state biodiversity conservation plan is not self -executing; it is not a regulation, but is instead a policy document for the guidance of state government action, including specific regulatory and capital project decisions.

Functional Plans

Some states will have specialized functional plans dealing with housing (as in New Jersey)[81] or transportation (as in Oregon and Minnesota)[82] that are not prepared by the lead planning agency, but by other boards and departments (such as New Jersey's Council on Affordable Housing and the Oregon State Transportation Commission). Still others may have specialized plans addressing areas such as solid waste.[83] The following sections propose statutory models for transportation, economic development, and different types of housing plans or state approaches that ensure the availability of affordable housing.


 

Commentary: State Transportation Plan

The state transportation plan statutory description has been drafted to be generally consistent with the requirements of the Federal Intermodal Surface Transportation Efficiency Act of 1991 and the subsequent Federal Transportation Equity Act for the 21st Century, passed in 1998. The details of the planning requirements are located in federal statutes.[84] Here, however, the model statutory language is primarily directed at describing the contents of the state plan document itself rather than factors that must be taken into consideration when developing the plan and the projects and strategies contained within it, which is the emphasis in the federal statute. Federal statutes do not require inventories of modal and multimodal facilities and population, employment, land-use, and transportation forecasts. Because it is difficult to imagine a transportation plan that does not have these supporting studies, the model statute, in Section 4-205(3), includes them. The model language also assumes the existence of a state comprehensive plan (see Section 4-203) and a process for reviewing functional plans against it. This language can be deleted, should there be no state comprehensive plan.


 

4-205 State Transportation Plan

(1) The [state department of transportation] shall, within [24] months of the effective date of this Act, prepare a state transportation plan.[85] With respect to metropolitan areas of the state, the [department] shall prepare the plan in cooperation with metropolitan planning organizations designated for metropolitan areas pursuant to Section 134(b) of Title 23, United States Code. [With respect to areas of the state under the jurisdiction of an Indian tribal government, the [department] shall develop the plan in cooperation with such government and the U.S. Secretary of the Interior.]

(2) The purposes of the state transportation plan are to:

(a) guide, balance, and coordinate transportation activities in the state, in conjunction with other related activities;

(b) ensure that transportation planning addresses and maximizes the potential of all existing and developing modes; and

(c) provide for convenient accessibility by all citizens to jobs, housing, education, recreation, and other activities and uses.

(3) In preparing the state transportation plan, the [state department of transportation] shall undertake supporting studies that are relevant to the topical areas included in the plan, or may utilize studies conducted by others concerning, but not limited to, the following:

(a) inventories of modal and multimodal transportation facilities and services in the state;

(b) forecasts of population, employment, land use, and transportation, by mode, for a [20]-year period; and

(c) identification and evaluation of transportation system alternatives with respect to intensity of use, public and private costs, impacts on economic development, land use, energy consumption, the environment (including air quality and biodiversity cobnservation), safety, and consistency with state goals and policies.

(4) The state transportation plan shall consist of the following elements:

(a) a policy element that defines statewide transportation goals and policies. The policy element may address: the coordination of transportation modes; the relationship of transportation to land use, economic development, the environment (including air quality), and energy consumption; the coordination of transportation among federal, state, regional, and local plans; transportation financing and pricing; designation of scenic highways; transportation signage (including signage that directs tourists); context-sensitive highway design; and transportation safety.

(b) a system element in text and maps that proposes a coordinated transportation system for the state consisting of a multimodal network of facilities and services to be developed over a [20]-year period for air, rail, state and federal highways, public transit, waterways, ports and waterborne transit, bicycle transportation, pedestrian walkways, and other modes to support the goals and policies in the policy element. The system element shall include summaries of supporting studies identified in paragraph (3) above, an identification of corridors and transportation facilities of statewide significance, and statements of minimum levels of service that describe the performance for each mode in order to meet the goals and policies of the plan.

(c) an implementation element that contains a long-range program of actions to achieve statewide transportation goals and policies over the next [20] years. The implementation element may include proposed transportation projects, their priorities and estimated costs, including sources of funding, identification of responsibilities by local units of government or governmental agencies, and public or private providers of transportation, proposals for legislation, and other relevant measures. [The implementation element may be in a form or may include contents to satisfy the requirements for a transportation improvement program as described in Section 135(f) of Title 23, United States Code).]

(5) Prior to submission of its plan to the [office of the governor], the [state department of transportation] shall hold public hearings and workshop] on the draft plan and shall allow at least a [60]-day period for public comment by citizens, affected public agencies, representatives of transportation agency employees, other affected employee representatives, private providers of transportation, and other interested parties.[86] The [department] shall publish a notice informing the public of the date, time, and location of the hearings and workshops and of the availability for inspection or purchase of the draft plan in newspapers of general circulation in the state at least [60] days in advance of the hearings and workshops.

[or]

(5) The [department] shall conduct public hearings and workshops on the plan as provided by Section [4-209].

(6) Subsequent to the public hearings and workshops, the [state department of transportation] shall submit the plan and a summary of comments received at the hearings and workshops to the [office of the governor], which shall review the plan for consistency with the state comprehensive plan, state land development plan, [[and] state biodiversity conservation plan,] [and any other instructions and directives it may have issued]. The [office of the governor] shall consider all written comments received when formulating any required revisions. Within [30] days, the reviewed plan shall be returned to the [department], together with any required revisions.

(7) The [state department of transportation] shall, within [30] days of the return of the state transportation plan, incorporate all revisions required by the [office of the governor]. The plan shall then be adopted in the manner provided by Section [4-210] and shall be certified in the manner provided by Section [4-211].

(8) The [state department of transportation] shall, on a [biennial] basis, review the state transportation plan with state agencies significantly affected by the provisions of the particular section under review, and may propose, in writing, amendments to the plan, accompanied by an explanation of the need for such amendments. Such changes shall be approved in the same manner as the adoption of the original plan.[87]


 

Commentary: State Economic Development Plan

All states undertake economic development to one degree or another. The activity may be centralized in a department of development or similar agency or dispersed through several departments.[88] The state economic development plan described below is a form of strategic planning by which the state assesses its strengths and weaknesses with respect to other states and its place within the national economic environment and proposes a series of strategies to encourage job growth and broadened economic opportunity.[89] The plan will likely be prepared by a state department of development, although it could also be prepared by the office of the governor or a special statewide task force created for the purpose.[90]


 

4-206 State Economic Development Plan

(1) The [state department of development] shall, within [18] months of the effective date of this Act, prepare a state economic development plan.

(2) The purposes of the plan are to define the state's role in encouraging job growth, particularly in relation to the availability of housing and transportation, broadening job opportunity, stimulating private investment, and enhancing and balancing regional economies.

(3) In preparing the state economic development plan, the [state department of development] shall undertake supporting studies that are relevant to the topical areas included in the plan, or may utilize studies conducted by others concerning, but not limited to, the following:

(a) job growth or decline by industry sector on a national, statewide, or regional basis;

(b) future workforce and skill requirements of existing and potential industries in the state and its regions;

(c) population change and characteristics for the state and its regions;

(d) assessments of the state's locational characteristics with respect to access to transportation to markets for its goods and services, and its natural, technological, educational, and human resources in comparison with other states;

(e) the economic value of the state's natural, cultural, historic, and scenic resources to the state's tourism development;

(f) patterns of export and import activity for the state and its regions;

(g) patterns of private investment or disinvestment in plants and capital equipment in the state and its regions;

(h) patterns of unemployment in the state and its regions;

(i) opinions of public and private officials, through surveys, public hearings, and other means, as to the appropriate roles of the state in economic development and the state's competitive strengths and weaknesses;

(j) assessments of institutional structures within state government for encouraging economic development; and

(k) assessments of regulations and permitting procedures imposed by the state upon new development and upon commercial and industrial enterprises and their effects on the cost of doing business as well as their effect on the attraction and retention of jobs and firms in the state.

(4) The state economic development plan shall consist of summaries of relevant studies described in paragraph (3) above, and goals, policies, and implementing strategies by which state agencies may improve the state's business environment. The implementing strategies shall include, but shall not be limited to, changes in the programs or organization of state agencies, new or amended state legislation (such as changes in state tax policies), state capital investment, partnerships with private, governmental and nonprofit organizations, changes in programs of education and training, and estimates of the costs of such changes, legislation, or programs. The plan shall also propose benchmarks by which changes in the state's economy and factors contributing to economic change can be measured over time.

(5) Prior to the submission of its plan to the [office of the governor], the [state department of development] shall hold public hearings and workshops on the draft plan and shall allow at least a [60]-day period for public comment [by citizens, affected public agencies, representatives of private and nonprofit organizations, labor unions, educational and training institutions, and other interested parties]. The [department] shall publish a notice informing the public of the date, time, and location of the hearings and workshops and of the availability for inspection or purchase of the draft plan in newspapers of general circulation in the state at least [60] days in advance of the hearings and workshops.

[or]

(5) The [department] shall conduct public hearings and workshops on the plan as provided by Section [4-209].

(6) Subsequent to the public hearings and workshops, the [state department of development] shall submit the plan and a summary of comments received at the hearings and workshops to the [office of the governor], which shall review the plan for consistency with the state comprehensive plan, state land development plan, [[and] state biodiversity conservation plan,] [and any other instructions and directives it may have issued]. The [office of the governor] shall consider all written comments received when formulating any required revisions. Within [30] days, the reviewed plan shall be returned to the [department], together with any required revisions.

(7) The [state department of development] shall, within [30] days of the return of the state economic development plan, incorporate all revisions required by the governor. The plan shall then be adopted in the manner provided by Section [4-210] and certified in the manner provided by Section [4-211].

(8) The [state department of development] shall, on a [biennial] basis, review the state economic development plan with state agencies significantly affected by the provisions of the particular section under review, and may propose, in writing, amendments to the plan, accompanied by an explanation of the need for such amendments. Such changes shall be approved in the same manner as the adoption of the original plan.


 

Commentary: State Telecommunications and Information Technology Plan

[91]

Telecommunications and the information revolution are the most significant forces shaping the nation's economy and our communities. New telecommunications technologies and applications are changing how we communicate and how and where we live and work. A comprehensive understanding of them, the industries that provide them, and the government policies and regulations that affect those industries is certainly important for the businesses that rely on them to deliver services and remain competitive. That understanding is also important, however, for elected officials, planners, and citizens who play an active role in determining how telecommunications technologies and industry will affect a community's economic well-being, its architectural, aesthetic, and cultural character, and the day-to-day activities of its citizens.

Historically, telecommunications meant basic services like telegraph, telephone, telex, television, and radio. Until very recently, these services had been regulated by the federal government as monopolies. The presence of the federal government in regulating and directing the industry resulted in telecommunications being largely ignored by local government officials. Local governments dealt with communication firms on a limited basis, such as contracting for use of public rights-of-way and local franchising. Today, telecommunications refers to a diverse industry that has expanded to include telephone service (both local and long distance), wireless, microwave, satellite, cable, video, and, with the addition of the computer, transmission of voice, data, and video along with sophisticated networks of electronic mail, telecommuting, and video conferencing. New technologies are continually being added by a number of industries.

The greatest regulatory change occurred with the passage of the Telecommunications Act of 1996.[92] Prior to this, the industry was guided by the Communications Act of 1934.[93] The 1934 legislation created and maintained protected telecommunications monopolies at both the federal and state levels. Under this earlier legislation, the industry and the resulting monopolies were controlled and regulated by the Federal Communications Commission (FCC) and state and local public utility commissions (PUCs). These commissions determined through franchises and licensing agreements where companies could provide service, the nature of the services provided, and the rates that could be charged. This created a closely regulated industry, and one with little or no competition. As Congress began to deregulate other industries in the 1980s, it opted to deregulate the communications industry. The antitrust rulings that divested the Bell System and opened the long-distance telephone market to fair competition[94] were really the beginning of a shift toward competition and less government regulation that resulted in the Telecommunications Act of 1996.

The Telecommunication Act of 1996 allows long distance operators, local telephone providers, and cable companies to compete in each other's markets.The Act is primarily focused on introducing competition. The rationale behind the legislation is that competition will result in lower prices and better quality. The full implications of the Act will not be known for some time as the FCC continues to go through the rule-making process that will implement it.

The State Role: Telecommunications and Economic Development

The state is in a unique position in regards to the regulation of, and the promotion of development of, telecommunications within its borders. With modern technology, telecommunications is truly an enterprise that crosses and transcends state boundaries. And though deregulation has occurred to some degree through the Telecommunications Act of 1996, the Federal Communications Commission still has a role in the regulation of telecommunications providers. On the other hand, the placement of telecommunication facilities is a land-use question, within the purview of the local governments. Indeed, the issue of facility placement often becomes highly contested at the local level often over the issue of aesthetics.

Nevertheless, the state has a role to play in the regulation and the development of telecommunications networks. State utility commissions regulate the rate of "natural monopoly" service providers (although some utility regulation is handled by local governments). The state legislature can enact or amend enabling legislation to balance the facilities placement issue. Economic development agencies can enter into partnerships with private telecommunications and computer firms to provide service to those who do not have it and to upgrade service where it exists, thus attracting and encouraging economic growth. Educational agencies can also cooperate with service providers to provide computers and communication access to teachers and students who can use these resources in more engaging and efficient education.

Then, there is the role of the state government as a consumer of telecommunications services and computer equipment and software. Even in the smallest of states, a state government is a large enterprise with executive, judicial, and legislative agencies, all of which have information needs of their own and also the need to share information in a timely manner with other agencies. Some of that demand for computers and telecommunications involves the speedy relay upon demand of vast amounts of information. Some involves making information readily available to those who need it while maintaining those data sources secure from those who do not. And some of that telecommunication service includes the maintenance of reliable and rapid communications among law enforcement, medical, and other emergency management agencies during disasters. The state government needs the latest technology at a reasonable cost in order to carry out the daily tasks of governance.

Several states have already addressed this vital issue through legislation or other programs. Some states have express telecommunications planning requirements. Vermont requires its department of public services to prepare a state telecommunications plan to cover a ten-year period.[95] The Vermont statute covers both private and governmental telecommunications, and requires the telecommunications plan to include a ten-year overview of state growth and development as it relates to telecommunications demand, a survey of the demand of private telecommunications users, an assessment of the existing system, and an evaluation of alternative proposals for improving the system.[96] Alaska has created a telecommunications information council, which is directed to prepare short-range and long-range information systems plans for the state government and to prepare guidelines for state agencies to formulate information systems plans which are to be "in accordance with" the state plans.[97]

In Washington, a Governor's Telecommunication Policy Coordination Task Force was established by executive order in 1994. The task force was charged with assessing current telecommunications policies and recommending ways that Washington could better attract telecommunications companies and the jobs and services they provide while encouraging the deployment of advanced networks to the state's businesses and residents. The 11-member task force drew from state executive and legislative branches. It assessed the economic trends affecting growth and development of various sectors of the state telecommunications industry, how the state tax structure may be affecting telecommunications development,[98] and the overall effect of state policies to promote effective use of telecommunications to improve service to the state's citizens.[99]

Georgia centralized control and development of telecommunications in one agency, the department of administrative services, which is obligated by law to develop and implement a plan for state government telecommunications.[100] Through that agency, and utilizing revenue from a universal services fund,[101] Georgia operates the Georgia Statewide Academic and Medical System, utilizing satellite links to facilitate teleconferencing, including university courses, public hearings, and telemedicine. Along the same lines, Iowa has created the fiber-optic, state-owned Iowa Communications Network,[102] while North Carolina has the North Carolina Information Highway, an all-fiber, all-digital, high-speed network that is operated as a public-private partnership.[103]

A State Telecommunications Plan

A telecommunications plan must be flexible and must be reviewed often, due to the improvements in telecommunications and computer technology that occur seemingly daily. It should be prepared both by those knowledgeable in the latest technical innovations and those who must use the system day after day as a practical tool. And it must balance the need of society to promote the latest telecommunications technology with the need to have that technology available to as many users as possible.

The model statute in Section 7-206.1 below describes a state telecommunications and information technology plan. The plan's focus is both upon the state government's internal communications and information technology needs and upon the regulation and development of the commercial or public telecommunications system. The optional phrasing in paragraph (1) allows a state adopting this Section to have the telecommunications and information technology plan prepared by the state department of development, the state planning agency, another state agency more closely related to telecommunications and information technology issues such as the public utilities commission, a committee of experts created for the purpose, or some combination of the above.


 

4-206.1 State Telecommunications and Information Technology Plan

(1) The [state department of development, state planning agency, or other appropriate state agency] may prepare a state telecommunications and information technology plan.

(2) The purposes of the state telecommunications and information technology plan are to:

(a) assess short- and long-term telecommunications needs and existing telecommunications infrastructure and services in the state;

(b) assess short- and long-term telecommunications and information technology needs of the state government and all agencies thereof;

(c) assess the manner in which existing telecommunications and information technology are used by the state government or any agency thereof;

(d) encourage investment in the most advanced telecommunications and information technology while protecting the public health, safety, and general welfare;

(e) acknowledge the economic development potential of telecommunications and information technology for the state;

(f) coordinate state telecommunications and information technology initiatives with other state programs; and

(g) provide guidance to local governments in the preparation of telecommunications components of local comprehensive plans pursuant to Section [7-206.1].

(3) In preparing the state telecommunications and information technology plan, the [state department of development, state planning agency, or other state agency] shall undertake supporting studies that are relevant to the topical areas included in the plan. In undertaking these studies, the state may utilize studies conducted or information assembled for the preparation of the state economic development plan pursuant to Section [4-206] or state capital budget and capital improvement program pursuant to Sections [4-301 to 4-304], or may utilize studies conducted by others. The studies may concern, but shall not be limited to, the following:

(a) surveys and assessments of future telecommunications needs on a statewide basis based upon projected and desired growth and development, including opinions of public and private officials as to the appropriate role of the state in regulating and promoting telecommunications;

(b) an assessment of the existing private telecommunications system on a statewide basis, with an identification of regional differences, if any;

(c) surveys and assessments of telecommunications and information technology initiatives undertaken by other states;

(d) surveys and assessments of future telecommunication and information technology needs as they relate to both the state government as a whole and all the agencies of the state;

(e) an appraisal of the impact of telecommunications on the future location of business and industry within the state;

(f) an assessment of existing telecommunications and information technology being utilized by the state government and all agencies thereof, including an appraisal of the compatibility of the technology with presently-utilized technology and foreseeable future improvements in telecommunications and information technology; and

(g) an assessment of federal and state statutes and regulations, as well as relevant local ordinances and permitting procedures, that affect private telecommunications firms and their effects on the cost of doing business and on investment in infrastructure, technological advancement, and the provision of universal service.

(4) The state telecommunications and information technology plan shall consist of summaries of the relevant studies described in paragraph (3) above, and goals, policies, and implementing strategies by which the state and state agencies may improve telecommunications infrastructure and services in order to address the purposes listed in paragraph (2) above.

(5) The implementing strategies shall include, but shall not be limited to, new or amended state legislation, state capital investment, partnerships with private, governmental, and nonprofit organizations, and estimates of the costs of such changes, legislation, or programs. The plan shall also propose benchmarks by which changes in the state's telecommunication and information technology system can be measured over time. The implementing strategies may include proposals for:

(a) construction or installation of, or improvements to, the telecommunications facilities and information technology of the state government and state agencies;

(b) the enactment of uniform standards for state government telecommunications facilities and information technology;

(c) public information programs to market the telecommunications potential of the state for economic development purposes;

(d) proposed model goals, policies, and guidelines that local governments may include in a telecommunications component of a community facilities element prepared pursuant to Section [7-206.1];

(e) agreements between telecommunications firms and the state or state agencies for use of telecommunication facilities by public safety and emergency management services personnel in the event of disaster; and

(f) changes to statutes, regulations, and procedures affecting telecommunications, including, but not limited to, taxation, to enhance investment in telecommunications infrastructure, advance technology, and provide universal service.

(6) The [department or agency] shall conduct public hearings and workshops on the proposed plan as provided by Section [4-209].

(7) Subsequent to the public hearings and workshops, the [state department of development, state planning agency, or other state agency] shall submit the proposed plan and a summary of comments received at the hearings and workshops to the [office of the governor], which shall review the plan for consistency with the state comprehensive plan, state land development plan, [[and] state biodiversity conservation plan,] [and any other instructions and directives it may have issued]. The [office of the governor] shall consider all written comments received when formulating any required revisions. Within [30] days, the reviewed plan shall be returned to the [department or agency], together with any required revisions.

(8) The [state department of development, state planning agency, or other state agency] shall, within [30] days of the return of the state telecommunications and information technology plan, incorporate all revisions required by the governor. The plan shall then be adopted in the manner provided by Section [4-210] and certified in the manner provided by Section [4-211].

(9) The [state department of development, state planning agency, or other state agency] shall, on a [biennial] basis, review the state telecommunications and information technology plan with state agencies significantly affected by the provisions of the particular section under review, and may propose, in writing, amendments to the plan, accompanied by an explanation of the need for such amendments. Such changes shall be approved in the same manner as the adoption of the original plan.


 

Commentary: State Housing Plan

A state housing plan is particularly appropriate when there is a state agency dedicated to housing issues (e.g., a state housing finance agency or state housing department charged with identifying housing needs on a statewide basis and then allocating state resources), although it may also be carried out by a state planning agency. California, Georgia, Oregon, and Washington are examples of states that have such plans, and the model legislation below is based on them.[104]

The state housing plan assesses existing housing conditions on a statewide basis and projects future housing needs, especially for affordable housing, in order to assure that a wide variety of housing types is available to accommodate the state's residents. The presence of an adequate supply of housing for all income groups is important to support economic development. Businesses, when they locate or expand, look to the supply of housing for potential workers and having a sufficient supply of housing in all parts of the state is a strategic advantage that favors one state over another.

The state housing plan should identify how the state intends to initiate or make changes to existing programs and may recommend measures to remove regulatory barriers to affordable housing. For example, the plan may propose programs to ensure that middle- and moderate-income workers, such as police officers, firefighters, teachers, and other vital workers are able to find housing near where they work. Additionally, the plan may recommend initiatives that assist low-income elderly people find apartments so that they may live near their children or that help moderate-income young married couples find housing in the community where they grew up. The plan may also serve as a vehicle to distribute federal funds, such as Community Development Block Grant monies, or state funds dedicated to affordable housing purposes.[105] Moreover, the plan may stimulate or inspire other government agencies, such as local governments, to address housing needs.

Housing planning is addressed in other sections of the Legislative Guidebook. Section 4-208, Alternative 1 (Model Balanced and Affordable Housing Act), describes a regional fair-share housing system, with the optional involvement of a regional planning agency. Chapter 6, Regional Planning, describes the contents of a regional housing plan, similar to the language below (see Section 6-203). Detailed requirements for local housing planning is also addressed in Chapter 7, Local Planning, Section 7-207.


 

4-207 State Housing Plan; Housing Advisory Committee; Annual Progress Report

(1) The [state planning agency or state department of housing and community development or state department of community affairs or state department of development or state housing finance agency] shall, within [18] months of the effective date of this Act, prepare and adopt, and update and amend every [5] years, a state housing plan.

(2) The purposes of the state housing plan are to:

(a) document the needs for affordable housing[106] in the state, including special needs housing,[107] and the extent to which private- and public-sector programs are meeting those needs;

(b) encourage the provision of affordable housing, especially as it relates to the location of such housing proximate to jobsites;

(c) encourage the rehabilitation and preservation of affordable housing;

(d) identify barriers to the production of affordable housing at the state and local levels of government;

(e) develop sound strategies, programs, and other actions to address affordable housing on a statewide basis; and

(f) serve as a guide for the allocation of state resources to meet those needs.

(3) The governor [shall or may] appoint a housing advisory committee to the [state planning agency or state department of housing and community development or state department of community affairs or state department of development or state housing finance agency] to serve as the [agency or department]'s principal advisory body in the preparation of the state housing plan and on housing and housing-related issues. The [agency or department] shall provide administrative and clerical assistance and such other information and assistance as may be deemed necessary by the committee in order for committee to carry out its duties. Members of the committee shall serve without compensation, but shall be reimbursed for travel expenses [as provided by state law].

• Because it is important to have widespread participation by various groups affected by housing programs, the model legislation includes a housing advisory committee to advise the state agency when it is preparing the plan. Legislation based on this model may also specify the number of committee members, what interests they represent, and their terms. Typical members might include representatives of: the construction industry; home builders; home mortgage lending profession; economic development profession; real estate sales profession; apartment management and operation industry; nonprofit housing development industry; homeless shelter operators; lower-income persons; public housing authorities (both residents and those involved in public housing management); special needs populations; advocacy groups for affordable housing; and local governments in the state.

(4) The state housing plan shall at a minimum consist of the following:

(a) an evaluation of and summary statistics on housing conditions for the state[,] [all substate districts designated pursuant to [Section [6-602]],] [[and] counties] for all economic segments. The evaluation shall include the existing distribution of housing by type, size, gross rent, value, and, to the extent data are available, condition, the existing distribution of households by gross annual income and size, and the number of middle-, moderate-, and low-income households that pay more than [28] percent of their gross annual household income for owner-occupied housing and [30] percent of their gross annual household income for rental housing.

(b) a projection for each of the next [5] years of total housing needs, including needs for middle-, moderate-, and low-income and special needs housing in terms of units necessary to be built or rehabilitated for the state[,] [all substate districts designated pursuant to [Section [6-602]],] [[and] counties];

(c) a discussion of the capabilities, constraints, and degree of progress made by the public and private sectors in meeting the affordable housing needs and special housing needs of the state;

(d) an identification and comprehensive assessment of state and local regulatory barriers to affordable housing, including building, housing, zoning, subdivision and related codes, and their administration;[108]

(e) goals for each of the next [5] years for the production of housing units, both new and rehabilitated, for middle-, moderate-, and low-income and special needs housing for the state, [all substate districts designated pursuant to [Section [6-602],][[and] counties];

(f) based on an analysis of subparagraphs (4)(a) through (4)(e) above, specific recommendations, policies, programs, and/or proposals for legislation for meeting the affordable housing needs and special housing needs of the state, including, but not limited to:

1. financing for the acquisition, rehabilitation, preservation, or construction of housing;

2. use of publicly owned land and buildings as sites for low- and moderate-income housing;

3. regulatory and administrative techniques to remove barriers to the development and placement of affordable housing and to promote the location of such housing proximate to jobsites;

4. coordination of state initiatives with federal financing programs and the development of an approved housing strategy as provided for in the Cranston-Gonzales National Affordable Housing Act (Section 12701 et seq. of Title 42, United States Code), as amended, including a summary table of anticipated funding from each federal program and any state, local, or other resources available to meet matching requirements;

5. stimulation of public and private sector cooperation in the development of affordable housing and the creation of incentives for the private sector to construct or rehabilitate affordable housing;

6. tax, infrastructure financing, and land-use policies and laws; and

7. local opportunities for public housing resident management and ownership.

• It may also be desirable for the contents of the state housing plan to include proposed annual allocations of monies from state housing trust funds for affordable housing.[109] Such funds may include proceeds from the sale of mortgage revenue bonds, title transfer taxes, mortgage recordation fees, abandoned or unclaimed funds, lottery proceeds, and other revenues. Typically, housing trust fund monies are used for grants, loans, loan guarantees, and loan subsidies. They may be made available to local governments, local housing authorities, private lenders, and private and nonprofit developers. Because the nature of housing trust funds is unique to each state, statutory language providing for the annual allocations has not been proposed here.

(5) The [agency or department] shall conduct workshops and public hearings on the state housing plan as provided by Section [4-209]. The [agency or department] shall seek the advice of the housing advisory committee in assessing comments received at the hearings and workshops.

(6) Subsequent to the workshops and public hearings, the [agency or department] shall submit the plan and a summary of comments received at the workshops and hearings to the [office of the governor], which shall review the plan for consistency with the state comprehensive plan, the state land development plan, [[and] the state biodiversity conservation plan,] [and any other instructions and directives it may have issued]. The [office of the governor] shall consider all written comments received when formulating any required revisions. Within [30] days, the reviewed plan shall be returned to the [agency or department], together with any required revisions.

(7) The [agency or department] shall, within [30] days of the return of the state housing plan, incorporate all revisions required by the governor. The plan shall then be adopted in the manner provided by Section [4-210] and certified in the manner provided by Section [4-211].

(8) Each [date], for the year beginning [date], the [agency or department] shall submit an annual progress report to the governor and legislature describing measures taken to implement the state housing plan during the previous year, detailing the extent to which the state's affordable housing needs were met during the previous year, and containing other recommendations for meeting those needs.


 

Commentary: State Planning For Affordable Housing (Two Alternatives)

Over the past quarter century, a number of states have adopted statutes and formulated planning approaches to ensure the availability of affordable housing.[110] In contrast to enabling legislation that simply permits and describes local housing planning, these statutes proactively attempt to remove barriers to affordable housing by placing an affirmative responsibility on local governments. These states have defined the provision of such housing as a state interest, beyond mere encouragement, and supervise the housing planning process at the regional and local levels.

This type of legislation generally falls into three general categories: (1) a "bottom-up" approach in which the preparation of housing plans is a collaborative effort between a regional planning agency and member local governments under state supervision; (2) a "top-down" approach in which the state establishes housing goals for individual local governments based on regional needs projections; and (3) an appeals approach based on the existence of a state-level appeals process that provides for an override, either by a court or an administrative body, of local decisions that reject proposals for affordable housing or that otherwise make their construction uneconomic or infeasible. These three approaches are described more completely in the Note located at the end of this Chapter. The two model statutes that follow are examples of a hybrid "bottom-up/top-down" approach and an appeals approach.

The first model statute is based on statutes from New Jersey and California and a proposal from the U.S. Advisory Commission on Intergovernmental Relations. It establishes a state-level Balanced and Affordable Housing Council to administer, and enforce if necessary, a statewide regional fair-share allocation system for affordable housing. The primary goal of the model statute is to ensure that a wide variety of housing types will be available to accommodate low- and moderate-income households on a regional fair-share basis. Therefore, while the model calls for housing planning for all income groups, its focus is primarily on local efforts to permit and otherwise encourage low- and moderate-income housing. Balancing employment and residential housing opportunities is critical to the state because it lessens traffic congestion, contributes to an improved environment, reduces infrastructure demand, and makes the state more competitive to new and expanded businesses. In addition, the model strives to assure an adequate supply of housing in appropriate locations for persons of all income strata, including teachers, police officers, bank and grocery clerks, waiters and waitresses, and others in middle-, moderate-, and low-wage jobs that are an integral part of the economy.

Two organizational alternatives are provided. Under the first, the Council is responsible for designating housing regions for the state, preparing estimates of present and prospective need for low- and moderate-income housing by region, developing regional fair-share allocations of such needs to local government, and reviewing and approving housing elements of comprehensive plans submitted by local governments.

Under the second alternative, which involves a role for regional planning agencies, the Council also designates housing regions and prepares estimates of present and prospective need. However, the actual allocation of the regional need figures is accomplished by regional planning agencies, using guidelines, data, and suggested methodologies supplied by the Council. When the regional planning agency prepares the regional fair-share allocations, the result is termed a "regional fair-share allocation plan" that is subsequently reviewed and approved by the Council. The allocation plan may be part of the agency's broader regional comprehensive plan. After a regional planning agency's regional allocation plan is approved by the Council, the agency may then review and approve housing elements submitted by local governments.

The housing element itself is intended to provide the local government with an analysis of existing and prospective housing needs in the region and set forth implementing measures for the preservation, improvement, and development of housing. In it, the local government identifies how it will address the housing needs for all income groups, especially its regional fair share, and what specific affirmative steps it is going to take, including changes in development regulations to eliminate unnecessary cost generating requirements that can affect the cost of all housing.

The model statute also provides for a mediation process overseen by the Council or the regional planning agency regarding objections to housing elements submitted by local governments for review and approval. Also, under both alternatives, the Council functions as a state-level housing appeals board when: (a) a local government does not submit a housing element; (b) when it submits, but does not ultimately obtain approval of a housing element; or (c) when it fails to update the housing element. In the absence of an approved or updated housing element, an applicant seeking approval to build an inclusionary development (which is defined as one with at least 20 percent low- and moderate-income dwelling units) has the right to appeal any denial or approval with conditions by the local government to the Council. The Council, after a hearing on the appeal, may affirm, modify with conditions, or set aside the local government's decision. Thus, the model legislation creates a statutory — as opposed to state constitutional — remedy and incentive for local governments to adopt housing elements and carry out specific proposals contained in them.

While the model statute below draws from the New Jersey Fair Housing Act, it does not incorporate one feature of that state's legislation: a device called the "regional contribution agreement" whereby a certain percentage of low- and moderate-income units can be transferred to a receiving local government upon the payment of fees. Under the New Jersey statute, up to 50 percent of a local government's low- and moderate-income obligation can be transferred to a designated receiving local government in the same housing region by means of a regional contribution agreement and upon payment by the sending local government of a per unit amount established by the state.[111] The contribution agreement has been criticized on the grounds that it allows suburban jurisdictions to partially buy their way out of their regional fair-share obligation, thereby defeating one of the purposes of the statute.[112] On the other hand, it has been commended as a means of allowing suburban subsidies of inner-city housing since it permits affluent portions of the state to contribute money to low-income housing, which otherwise would likely not occur.

The contribution agreement may also be a measure that makes the enactment of a fair-share statute politically more acceptable by suburban communities. Should a contribution agreement provision be included in a statute, contributions should only be accepted by those communities that have low- and moderate-wage jobs in reasonable proximity to housing opportunities. At the same time, receiving communities should not accept contributions if they will result in an undue concentration of low- and moderate-income housing.

The model statute contemplates a full-scale involvement of state, regional, and local government efforts to promote a variety and choice of affordable housing. As an option, however, "simpler" alternatives could be assembled from the components of this model that would only involve regional and local governments, and even local governments alone. For instance, a regional and local model that is based on optional (as opposed to mandated) participation and does not include an enforcement function might only incorporate elements of Sections 4-208.1, .2, .3, .6 (Alternative 1B, excluding the Balanced and Affordable Housing Council, but with the regional planning agency assuming the Council's duties), .8 (ditto), .9, .10, .11, .12, .13, .14, .15, .21, .22, .23, and .24. Similarly, a community that wished to adopt a fair-share ordinance that describes the local government's commitment to plan for low- and moderate-income housing, remove impediments to it, and provide for controls on the resale and re-rental of low- and moderate-income dwelling units, might adapt the following provisions: Sections 4-208.1, .2., .3, .9, .21., .22, .23, and .24.[113]

The second model statute pertains to affordable housing appeals. The statute authorizes a state-level procedure through which denials or conditional approvals of low- and moderate-income housing developments by local government may be appealed by applicants. A special housing appeals board or court, in a de novo review, may affirm, revise, or modify the conditions of, or add conditions to, decisions made by the local government regarding such developments.

The model statute also allows use of the appeals procedures by an applicant for a development that will be principally devoted to nonresidential uses in a nonresidential zoning district where the applicant proposes that no less that 20 percent of the area of the development or 20 percent of the square footage is to be devoted to low- and moderate-income housing. The statute exempts from its provisions certain categories of local government that have concentrations of lower income households or low- and moderate-income dwelling units or substandard dwellings or which have experienced construction of a certain number of affordable units over a certain time period under the statute.

 

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