Growing Smart Legislative Guidebook

Chapter 4 (part 4): State Planning

4-208.11 Publication of List of Exempt Local Governments

The [State Department of Housing and Community Development or other state agency authorized by statute] [shall or may] annually publish a list of exempt local governments.

4-208.12 Effective Date

This Act shall take effect upon its adoption.

Procedures Related to State Plan Making, Adoption, and Implementation


Commentary: Public Review and Hearings

The model legislation below describes a procedure for public consultation and hearings in the preparation, adoption, and amendment of plans. The procedure requires the state agency to initiate informational meetings shortly after beginning work on the plan and to conduct public hearings once a draft plan has been completed. The workshops and hearings must be preceded by public notice and must be geographically dispersed throughout the state. Alternate language has been provided to authorize use of computer accessible information networks, such as the Internet, as a mechanism for public notice and for distribution of the draft plan. The number of such hearings and workshops may be specified in the statute or left to the discretion of the state agency; as true throughout this Legislative Guidebook, the numbers of hearings and workshops proposed below are merely guidelines. While the statute does not provide so, because cost may be a consideration, it is a good practice for the state agency to distribute draft copies of the plan to affected governmental units and statewide interest groups in advance of the public hearings.


4-209 Workshops and Public Hearings

[143]

(1) As used in this Section and Sections [4-210] through [4-212]:

(a) "State Plan" means any one of the following:

1. the state comprehensive plan pursuant to Section [4-203];

2. the state land development plan pursuant to Section [4-204];

3. the state biodiversity conservation plan pursuant to Section [4-204.1];

4. the state transportation plan pursuant to Section [4-205];

5. the state economic development plan pursuant to Section [4-206];

6. the state telecommunications and information technology plan pursuant to Section [4-206.1]; and

7. the state housing plan pursuant to Section [4-207].

(b) "Lead Agency" means the state agency directed to prepare a state plan pursuant to one of the Sections referenced above.

(2) Within [90] days of initiating work on a state plan or any amendment to it, the lead agency shall conduct [not less than 4] informational workshops (or other type of public collaborative process that engages citizens in the preparation of plans) at different locations throughout the state. The purpose of these workshops is to inform the public as to the process and schedule for preparing the plan and to solicit public comment on potential goals, policies, guidelines, design alternatives, problems, potential solutions, and implementation measures before a draft of the plan is completed. The lead agency shall give notice by publication in a newspaper that circulates in the area served by the workshop, and may give notice by publication, which may include a copy of the draft plan or amendment, on a computer accessible information network, or by other appropriate means, at least [30] days in advance of the workshop.

(3) Upon completion of a preliminary draft of the state plan, the lead agency shall conduct [not less than 4] public hearings on the plan at different locations throughout the state. The lead agency shall give notice by publication in a newspaper which circulates in the area served by the hearing, and may give notice by publication, which may include a copy of the draft plan or amendment, on a computer accessible information network or by other appropriate means, at least [30] days in advance of the hearing.

(4) The notice of each workshop or public hearing shall:

(a) contain a statement of the substance of the workshop or hearing and a description of the substance of the proposed plan;

(b) specify the officer(s) or employee(s) of the lead agency from whom additional information may be obtained;

(c) specify a time and place where the work program or draft plan may be inspected before the hearing; and

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

(5) The lead agency shall provide notice to:

(a) the chief executive officer of each [regional planning agency] and local government in the area served by the workshop or hearing; [and]

(b) the director of every relevant state agency; [and]

[(c) any other interested person who, in writing, requests to be provided notice of the workshop or hearing].

(6) The lead agency shall afford any interested person the opportunity to submit written recommendations and comments in the record of the hearing, copies of which shall be kept on file and made available for public inspection.

(7) The lead agency may establish additional procedures for the receipt of oral statements.

(8) The lead agency may prepare written responses to any written recommendations and comments submitted by any interested party. These responses may be included in the final plan document.

(9) Taking full account of the written and oral testimony presented at the public hearings, the lead agency shall make revisions in the preliminary draft plan as it deems necessary and shall prepare and distribute to all state and regional agencies, local governments, and other interested persons a final draft plan to be considered for adoption. The [adopting body or agency or person] may modify or amend the final draft plan before adopting it.


Commentary: Adoption of Plans

There are several ways in which a plan (and plan amendments) may be adopted at the state level: (1) the governor can adopt it by executive order; (2) the governor can submit the plan to the state legislature and the plan becomes effective after a certain period (e.g., 90 days) unless either house passes a resolution stating in substance that it does not favor the plan; (3) the governor can submit it to the state legislature and the plan does not become effective until the legislature adopts it; or (4) if a state department or commission is responsible for preparing the plan, the state department head or commission can adopt the plan (see Table 4-4).

Commentary to the American Law Institute's A Model Land Development Code rejected the fourth alternative in which the state agency that prepared the plan — in this case, a State Land Development Plan prepared by the State Land Planning Agency — may also adopt it by administrative rule or regulation:

The initial question [of providing for the adoption of the plan] is whether there should be any legal significance attached to a plan and if so, by whom should the plan be approved. If no legal significance is to be attached to the plan, then the plan is at most a "prestigious" recommendation to legislators and to government officials making land development decisions about how they ought to make decisions which significantly affect the development of the area being planned. A "prestigious recommendation" obviously can become a factor in any political debate or controversy concerning the desirability of the location of a proposed development.

. . .The [State Land Development] Plan involves an expression of a high level of political policy and it is for this reason that the Plan must be consciously related to the political forces of government. It is clear that a recommendation, whether merely "prestigious" or something more, is more powerful if it is approved by someone other than the staff which prepared it.[144]

Some states, however, do authorize the approval of certain types of functional plans by the head of the state agency that prepared the plan, as opposed to a separate body. Examples include Indiana and Ohio (both providing for adoption of a state solid waste management plan by a state environment department head) and Minnesota (providing for the adoption of a state transportation plan by the state transportation commissioner).[145]


4-210 Adoption of Plans (Four Alternatives)

Alternative 1 — By Executive Order

A state plan or any amendment thereto shall become effective after the governor adopts it by executive order.

Alternative 2 — By Action of the Governor and State Legislature [146]

(1) [Upon a recommendation for approval by the state planning commission and submission by the commission of a state plan to the governor for approval,] [t]he governor shall approve or disapprove a state plan or any portion or amendment thereof within [30] days of receipt.

(2) Upon approving a state plan, the governor shall submit the state plan or amendment to [each house of the] the state legislature. [The plan shall become effective when adopted by the state legislature. or The plan shall become effective on the expiration of [90] legislative days or at the end of the legislative session, whichever is earlier, provided that neither house passes a resolution stating in substance that the house does not favor the plan.]

[(3) In the event that [either house of] the legislature disapproves the plan or amendment in whole or in part, the plan or amendment shall be deemed to be rejected and shall be returned to the lead agency.]

Alternative 3 — By Action of a State Board or Commission

A state plan or any amendment thereto shall become effective when adopted by affirmative vote of not less than the majority of the entire membership of the [state planning commission] [no later than [30] days] after the final public hearing on the plan by the [commission] at any meeting of the [commission] at which the chair is present.

Alternative 4 — By Action of a State Agency Head

A state plan or any amendment to it shall become effective when adopted by rule of the director of the lead agency.


Commentary: Certification of Plan to State Agencies, Regional Agencies, and Local Governments

This Section requires the state to transmit an adopted plan and amendments to it to various agencies and officials, deposit copies in state depository libraries, and make them available for sale to the public.


4-211 Certification of Plan; Availability for Sale

(1) Upon the adoption or amendment of a state plan pursuant to Section [4-210 or cite to applicable Section nos.], the [governor or director of the state agency or chair of the commission or board] shall, within [90] days, certify copies of the plan or amendment to:

(a) the director of each state agency;

(b) the director of each [regional planning agency] in the state;

(c) the chief executive officer of each local government in the state;

(d) the director of each local government's planning department or, where there is no local planning department, the chair of the local planning commission;

(e) each member of the state legislature;

(f) the state library and all public libraries in the state that serve as depositories of state documents; and

(g) [other interested parties].

(2) The [lead agency or other state agency] shall make the plan or amendment available for sale to the public at actual cost or a lesser amount.

• A state may have the equivalent of the Government Printing Office for the central publication of government documents to the public. If not, the agency that prepared the plan should make it available to the public.


Commentary: Effect of State Plans on State Agencies; Interagency Coordination

Once a state plan (whatever the subject area) is adopted, it could have the following effects:

(1) state agencies would be required to take the state plan and its planning goals "into consideration" when preparing functional plans, when siting, constructing, or reconstructing state facilities, or when making expenditures;

(2) state agencies would be required to develop, through administrative rule making, a process for ensuring that their plans, proposed capital expenditures, proposed legislation, etc. are consistent with the state plan, and should document their compliance with the state plan. It is not desirable to detail in a statute the internal procedures that an agency might formulate to ensure consistency. The processes for consistency will evolve over time through trial and error. Consequently, state agencies should be given latitude to formulate, refine, and otherwise amend these procedures through administrative rule making;

(3) state agencies would be required to periodically report on how they are incorporating the state plan's goals and policies into their routine administrative activities; and

(4) state agencies would be prohibited from undertaking any project that is inconsistent with an adopted state plan.

The following sections group these approaches under two alternatives: an advisory process; and a process requiring strict consistency. It is important to note that the broader the plan's scope, the more far-reaching the impacts on state agencies. The State Comprehensive Plan and the State Land Development Plan would have the broadest impacts. The various specialized functional plans focusing on transportation, housing, and economic development would have narrower impacts. When state agencies prepared strategic plans for their operations, they would need to coordinate them with the comprehensive, land development, and functional plans that have statewide operation or applicability.


4-212 Effect of State Plans on State Agencies; Interagency Coordination (Two Alternatives)

Alternative 1 — Agency Takes State Plan into Consideration [147]

(1) Upon certification pursuant to Section [4-211] of a state plan or an amendment to the plan, each state agency shall take the state plan into consideration when preparing any other plan required by state or federal law, undertaking any capital project or development, proposing any budget, and/or maintaining or initiating any program.

(2) A state agency shall request, and the director [of the state planning agency or the office of the governor or other state agency] may provide, an advisory report commenting on the extent to which any of the actions specified in paragraph (1) above conforms to the state plan and the director shall provide such other advisory reports as the state agency deems advisable.

(3) Upon certification of a state plan, each state agency may establish, by rule, additional procedures to ensure the conformance of agency action with the plan.

Alternative 2 — Agency Required to Observe Strict Consistency [148]

(1) Upon certification pursuant to Section [4-211] of a state plan or an amendment to the plan, no state agency shall prepare any other plan required by state or federal law, undertake any capital project or development, propose any budget, or maintain or initiate any program that is inconsistent with that plan.

(2) Each state agency shall, within [90] days of the certification of a state plan, establish by rule procedures to ensure the consistency of agency action with the plan.

(3) Each state agency with authority affecting a state plan shall submit to the [state planning agency or office of the governor] within [90] days of the certification of the plan, a written report that addresses how each state agency has incorporated the goals and policies of the plan into its current and intended activities. The state agency shall revise the report as necessary but, in no case, less than once every [2] years.

(4) The [office of the governor] shall mediate any differences between state agencies regarding the consistency between agency plans, projects, developments, budgets, and programs and the state plan.

4-213 [Effect of State Plans on Regional and Local Agencies—See Sections 7-402.1 to 7-402.5]

4-214 [Resolution of Conflict Between State, Regional, and Local Plans; Certification —See Sections 7-402.1 to 7-402.5]

State Capital Budget and Capital Improvement Program


Commentary: State Capital Budget and Capital Improvement Program

The following model legislation provides for a state capital budget and five-year capital improvement program to be formulated by the state planning agency under the general direction of the governor. The model also provides for a review role by the state planning commission, where one exists. The budget document may also be linked to the state comprehensive plan and state agency strategic plans where they exist. The capital budget and capital improvement program are then submitted to the state legislature for approval, or approval with modification. The legislative model is based on Texas, Maryland, and New Jersey statutes.[149] The model may need to be adapted by a state to conform to existing budgeting procedures.


4-301 Definitions

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

(1) "Capital Improvement" means any building or infrastructure project over $[,000] that will be owned by the state and purchased or built with direct appropriations from the state, or with bonds backed by the full faith and credit of the state, or, in whole or in part, with federal or other public funds, or in any combination thereof. A project may include construction, installation, project management or supervision, project planning, engineering, or design, and the purchase of land or interests in land.

(2) "State Capital Budget" means the [annual or biennial] budget for capital improvements proposed by the governor and adopted by the state legislature.

(3) "State Capital Improvement Program" means the [5]-year schedule of capital improvements for the state, the first [year or 2 years] of which is the capital budget. The capital improvement program is a proposed plan of expenditures and, except for the capital improvements included in the capital budget, shall not constitute an obligation or promise by the state to undertake projects or appropriate funds for any project in years [2 to 5 or 3 to 5] of the schedule.

(4) "State Agency" means any state department, division, office, bureau, board, or commission authorized to expend monies under state law [or cite to applicable Section no.].

4-302 Submission of State Capital Budget and Capital Improvement Program

(1) No later than [date] of each [even-numbered] year, the [state planning agency] shall prepare and submit to the governor a proposed state capital budget and capital improvement program document, hereinafter referred to as the "document."

(a) The governor shall review the document [and shall refer it to the state planning commission for a recommendation on the necessity, desirability, and relative priority of capital improvement projects by reference to the state comprehensive plan [and other state plans] as identified in Section [4-203 and cite to other applicable Section nos.].

(b) The state planning commission shall make its report to the governor no later than [45] days after the date of transmittal of the document by the governor. The governor shall review such report before approving or revising the document. Upon approving or revising the document, the governor shall submit it no later than [30] days after receipt of the report of the state planning commission to the state legislature for consideration and adoption.

(c) The legislature may adopt the document as submitted, or with modifications. Where any member of the state legislature proposes to add, by amendment, to the document any capital improvement projects not included in the proposal of the governor, the [state planning agency] shall review such projects for consistency with the state comprehensive plan [and other state plans] and against criteria prepared pursuant to Section [4-303(2)] below. The [state planning agency] shall, in writing and within [30] days of the original date of the proposed amendment, recommend to the Governor and legislature as to whether such projects should be included in the document as proposed, or with modifications, before the legislature may adopt the document. The recommendation of the [state planning agency] shall not be binding on the legislature.

(2) No funds for a capital improvement project shall be encumbered or spent unless the project is included in the adopted capital budget.

4-303 Contents of State Capital Budget and Capital Improvement Program

(1) The capital improvement program shall include:

(a) a description of each capital improvement project, its costs, its sources of funds, its projected year(s) of implementation, its probable annual operating and maintenance costs, its probable revenues, if applicable and a statement of the relationship of the capital improvement to the state comprehensive plan [and other state plans] as identified in Section [4-203 and cite to other applicable Section nos.];

(b) a description of priorities used in selecting and scheduling projects;

(c) a projection of available funds for all capital improvements during the [5]-year period;

(d) an estimate of indebtedness to be incurred by the issuance of bonds for capital improvements proposed over the [5]-year period; and

(e) a summary table showing, by year, beginning fund balances, projected revenues or sources of funds, projected costs of all capital improvements for that year, and ending fund balances.

(2) The [state planning agency] shall develop and shall periodically revise and publish criteria and related instructions and guidance for the inclusion in the state capital improvement program of proposed capital improvement projects.

4-304 Participation by and Cooperation of State Agencies

(1) The governor and the [state planning agency] shall solicit proposals for capital improvement projects, advice, and recommendations of each state agency [and the state planning commission] before proposing the state capital budget and capital improvement program.

(2) The state capital budget and capital improvement program shall be consistent with the state comprehensive plan prepared pursuant to Section [4-203].

[(3) In formulating the capital budget and capital improvement program, the governor and [the state planning agency] shall take into account any strategic operational plan prepared by the state agency pursuant to Section [4-202].]

(4) The governor and the [state planning agency] may require a state agency to:

(a) submit information, reports, plans, and documentation; and

(b) answer inquiries in relation to proposed capital improvement projects.

(5) All state agencies shall cooperate in the preparation of the state capital budget and capital improvement program.

Smart Growth Act


Commentary: Smart Growth Act

In 1997, the State of Maryland enacted a "Smart Growth" act[150] aimed at directing new development into "priority funding areas." Under the statute, state funding of certain growth related projects is prohibited outside of these priority areas. The priority areas must meet state guidelines for intended use (including minimum density requirements) and adequacy of plans for sewer and water systems. Existing communities and areas where economic development is desired are eligible. Counties may also designate growth areas for new residential communities. The priority areas include the state's 154 municipalities, land within the Baltimore and Washington Beltways, 31 enterprise zones, and the locally designated growth areas.

Beginning October 1, 1998, the state is prohibited from funding "growth-related" projects not located in these priority growth areas. State funding is also restricted for projects in communities without sewer systems and in rural villages. The intention is, of course, to channel state monies into areas that are suited for growth and limit development in rural areas by not extending sewers or making transportation improvements that would spur growth. In this way, conversion of rural and agricultural lands to urban uses is slowed or at least actively discouraged through state policy. Local governments and private interests can, of course, spend their own funds outside of these priority growth areas, but they cannot expect state monies for infrastructure.

Other legislation that is part of the "Smart Growth" package is intended to support locally identified development areas. For example, the program facilitates the use of brownfields (abandoned or underutilized industrial sites that are either polluted or perceived to be polluted) through grants, low-interest loans, and limitations on liability in redeveloping those lands. It provides tax credits to businesses creating jobs in a priority funding area. A "Rural Legacy" program also makes state funds available to enable local governments and land trusts to purchase properties, development rights, or permanent easements in order to protect targeted rural greenbelts. The new initiative supplements the Maryland's agricultural lands preservation program and open space program.

Section 4-401 below is an adaptation, reorganization, and refinement of the Maryland law. The model authorizes the designation of three types of "smart growth areas": (1) central cities (which are intended to be specifically listed in the statute); (2) areas that have been designated by regional planning agencies or counties, in consultation with municipalities; and (3) other state-designated area that are required to meet certain criteria regarding distress or disinvestment, such as enterprise zones. With regard to areas described in (2), such areas must be served by existing or planned public or private central water and sewer systems, and must meet certain density (for residential land use) and intensity (for industrial, commercial, and office use) requirements that are contained in the model. The requirements for central water and sewer and density and intensity are intended to ensure that development in such areas is supported by urban services and are relatively compact. Such regionally- or county-designated smart growth areas must be reviewed and certified by the state planning agency before they can become effective, though a regional planning agency may perform a portion of its own review.

The model limits the expenditure of state monies for growth-related projects, which it defines, to smart growth areas. It also defines expenditures for projects and related costs that are not covered by the act, such as minor building expansions and rehabilitation of state facilities and acquisition of conservation easement. Under certain circumstances, as described in paragraph (7), a specific state board may approve funding for a growth-related project that is not located in a smart growth area.

The model act also charges the state planning agency with a variety of duties, including establishing a process for the review of projects for compliance with the act, determining the location of a smart growth area in the case of a dispute, and providing information to the public on the administration of the act.


4-401 Smart Growth Act

(1) This Section shall be known as the "[name of state] Smart Growth Act."

(2) The purposes of this Section are to:

(a) encourage a pattern of compact and contiguous urban growth in locally designated smart growth areas that have been determined to be most suitable for growth;

(b) target funding by the State of certain projects and programs that serve to foster or influence growth in those smart growth areas;

(c) ensure that smart growth areas have or are planned to have suitable centralized water and sewer systems to support urban growth;

(d) establish a certification process for the designation of smart growth areas before those areas are eligible for certain state funding;

(e) require the [state planning agency] to administer the certification process and to review state projects and programs proposed in smart growth areas;

(f) stimulate private investment and reinvestment in existing communities and neighborhoods;

(g) direct growth away from agricultural land and critical and sensitive areas;

(h) use taxpayer dollars in a cost efficient and effective manner; and

(i) coordinate state agency decisions and actions to ensure the achievement of the purposes as stated in paragraphs (2)(a) through (h) above.

(3) As used in this Section:

(a) "Average Density" means: the total number of dwelling units divided by the total acreage of all lots and parcels in the area for which the principal permitted use in the applicable land development regulations is residential, but excluding the acreage of land:

1. dedicated to public use by easement in perpetuity or fee acquisition;

2. dedicated to recreational use;

3. subject to a conservation easement;

4. used for cemetery purposes;

5. identified by a local government as being in a 100-year flood plain or on which development is otherwise prohibited by local land development regulation; and

6. [other].

(b) "Financial Commitment" means that sources of public or private funds or combinations thereof have been identified which will be sufficient to finance public water or sewer facilities necessary to serve development within a smart growth area and that there is a reasonable written assurance by the persons or entities with control over the funds that such funds will be timely put to that end, provided that public funds shall not include funds provided by the state.

(c) "Funding" means any form of assurance, guarantee, grant payment, credit, tax credit, or other assistance, including a loan, loan guarantee, or reduction in the principal, obligation, or rate of interest payable on, a loan or a portion of a loan.

(d) "Growth-Related Project" means only the items set forth below:

1. any major transportation capital project, but excluding project planning and initial project planning;

2. funding by the [department of development or similar agency] for:

a. [construction or purchase of newly constructed single family homes or purchase of loans for newly constructed single family homes under [cite to statute]];

b. [acquisition or construction of newly constructed multifamily rental housing under [cite to statute]];

c. [cite to statutes authorizing business development loans, grants, or similar programs];

3. funding by the [state environmental protection agency] for:

a. construction of new or expanded water supply and distribution systems under [cite to statute establishing grant or loan program];

b. construction of new or expanded wastewater treatment and collection systems under [cite to statute establishing grant or loan program, including revolving loan funds];

4. funding by [the state building commission, or similar agency] for leases of property, construction of new or expanded buildings and facilities, or land acquisition for [list or cite to categories of state agencies or types of activities covered]; and

5. [other].

(e) "Initial Project Planning" means that portion of project planning that includes:

1. notification of local, state, and federal officials;

2. initial interagency review;

3. initial systems planning;

4. identification of alternatives for the scope and location of the project;

5. estimates of right-of-way requirements, including available detail regarding specific properties to be affected, and of costs;

6. public meetings for discussion of 1 to 5 above; and

7. reports of consultants, if such consultants have been retained for the analysis of alternatives.

(f) "Major Transportation Capital Project" means any new, expanded, or significantly improved transportation facility or service, including planning, environmental studies, design, right-of-way acquisition, construction, or purchase of essential equipment related to the facility or service.

(g) "Minor Transportation Capital Project" means any project for the preservation or rehabilitation of an existing transportation facility or service, including the planning, design, right-of-way, construction, or purchase of equipment essential to the facility or service.

(h) "Project Planning" means the phase in which engineering and environmental studies and analyses are conducted with full participation of the public, in addition to local, state, and federal agencies, to determine the scope and location of a proposed transportation project; and

(i) "Smart Growth Area" means an area that is:

1. listed under paragraph (4)(a) below;

2. designated under paragraph (4)(b) below; or

3. described in paragraph (4)(c) below.

(4) The following areas shall be considered smart growth areas under this Section, provided that areas described in paragraph (4)(b) below shall first be certified by the [state planning agency] pursuant to paragraph (9) as meeting the requirements prescribed therein:

(a) the following central cities [list central cities in state]:

1. [insert name];

2. [insert name]; and

• If a central city includes within its corporate limits areas not intended for development, as where a nature preserve is completely surrounded by a city, the indication of the city should list the excepted areas.

(b) an area that has been designated by resolution by the [regional planning agency] or county [legislative body], in consultation with the municipalities located in whole or in part in that region or county, which:

1. is served by a public or private central water and sewer system, or combination thereof, or planned to be served by a public water and sewer system for which the [state planning agency] has determined that there is financial commitment to construct within a six-year period from the date of designation; and

2. with respect to that part of the area delineated for residential use or development:

a. there is required by the applicable local land development regulations a minimum average density of [6, or insert number] dwelling units or more per acre; and/or

b. there exists an average density of [6, or insert number] or more dwelling units per acre; and

3. with respect to those parts of the area delineated for industrial, commercial, or office use, there is required by the applicable local land development regulations a minimum floor area ratio of:

a. [0.20] for industrial use;

b. [0.40] for commercial use; and

c. [0.60] for office use; and

4. has sufficient land area to accommodate the urban growth projected for the smart growth area in the succeeding [5] year period by the regional or county comprehensive plan; and

5. determined in writing by the [state planning agency], pursuant to paragraph (9) below, to comply with the requirements of paragraphs (4) (b)1 through (4)(b)4 above.

(c) [other state-designated areas that are required to meet certain criteria regarding distress and/or disinvestment, such as enterprise zones].

(5) Growth-related projects do not include:

(a) minor transportation capital projects;

(b) projects by the [state department of general services, state building commission, or similar agency] for maintenance, repair, or renovations to existing facilities, or one-time additions to such facilities that do not increase the total floor area by more than [10] percent of the existing facility;

(c) acquisition of land for telecommunications towers, parks, conservation, and open space;

(d) acquisition of conservation easements;

(e) funding by [name of state agency] for any project financed with the proceeds of revenue bonds issued by [name of state agency] where the [director of agency] determines in writing that the application of this Section would conflict with any provision of federal or state law applicable to the issuance or tax-exempt status of the bonds, conflicts with any provision of any trust agreement between the [name of state agency] and any trustee, or would otherwise prohibit financing of an existing project or financing provided to cure or prevent any default under existing financing; or

• The state may, under this exception, continue payments on and refinance bonds that were issued to finance projects commenced prior to the adoption of this Section, where such state payment may be otherwise restricted or prohibited by this Section.

(f) any other project funding or other state assistance not listed under paragraph (3)(d) above.

(6) Except as otherwise provided in this paragraph and paragraph (7) below, beginning [insert date], the state shall not provide funding for a growth-related project if the project is not located within a smart growth area.

(a) The state may provide funding for a growth-related project not in a smart growth area without complying with paragraph (7) below for:

1. a project that is required to protect public health or safety;

2. a project involving federal funds, to the extent compliance with this Section would conflict or be inconsistent with federal law;

3. a project related to a commercial or industrial activity, which, due to its operational or physical characteristics, shall be located away from other development, including:

a. a natural resource-based industry;

b. an industry relating to agricultural operations;

c. an industry related to forestry operations;

d. an industry relating to mineral extraction;

4. a wastewater treatment plant or a water treatment plant, provided that the service area for the plant is contained within and limited to a smart growth area.

5. a tourism facility or museum that is required to be located away from other development by its necessary proximity to specific and unique historic, natural, or cultural resources.

(b) No growth-related project shall be approved pursuant to paragraph (6)(a)1 above unless the director of the respective state agency finds in writing that the project is required to protect public health or safety and states in the writing the basis for this finding.

(7) The state may provide funding for a growth-related project that is not located in a smart growth area if the project is determined by the [existing state board, such as a controlling board, public works board, or state planning commission] to comply with the requirements of this paragraph.

(a) The [state board] shall approve such a growth-related project if it determines in writing and by a majority vote that:

1. no reasonably feasible alternatives exist in another location within the county or an adjacent county; or

2. the growth-related project is a major transportation capital project that satisfies the requirements of paragraph (7)(b) below.

(b) The [state board] may approve a major transportation capital project outside a smart growth area, pursuant to paragraph (7)(a) above, if it finds that the project:

1. does not increase capacity by more than [10] percent, provided that the director of the state department of transportation and the director of the [state planning agency] first make the same determination in writing; and/or

2. connects two smart growth areas, provided that the director of the state department of transportation and the director of the [state planning agency] first determine in writing that:

a. adequate permanent access control or other similar measures are in place to prevent the smart growth areas from developing in such a manner that they merge; and

b. the project will prevent development that is inconsistent with the state comprehensive plan and state land development plan; and/or

3. has the sole purpose of providing control of access by the state department of transportation along an existing highway corridor.

(c) When making a written request to the [state board] for the purposes of this paragraph, the applicant shall:

1. demonstrate that no reasonably feasible alternative locations for the growth-related project exist within the county or an adjacent county; or

2. demonstrate in writing that the growth-related project is a major transportation capital project that satisfies the requirements of paragraph (7)(b).

(d) The [state board] may, at its discretion, require remedial actions to mitigate any negative impacts of the proposed growth-related project.

(8) The [state planning agency] shall:

(a) by administrative rule, and in consultation with the [state planning commission], establish a process for the development, and periodic updating of maps and descriptions of smart growth areas;

(b) for smart growth areas designated and submitted by [regional planning agencies] or counties under paragraph (4)(b) and paragraph (9) of this Section, review and determine in writing compliance with the requirements of paragraph (4)(b);

(c) in the case of a dispute, determine the location of a smart growth area;

(d) establish a process for the review of projects by appropriate state agencies and the [state planning agency] for compliance with this Section;

(e) provide to each state agency, as appropriate, and to local governments written and mapped descriptions of the location of smart growth areas; and

(f) provide, as necessary, information to the public on the administration of this Section.

(9)

(a) To be eligible for funding of growth-related projects, a [regional planning agency] or county shall submit to the [state planning agency] any smart growth areas that it has designated pursuant to paragraph (4)(b) above, and which are consistent with the comprehensive plans of the region or county and the affected municipalities. The [regional planning agency] or county shall provide to the [state planning agency] all information necessary to show the precise location of the area(s), including maps of the area(s) showing the planning and zoning characteristics of the area(s), including documentation of average density and minimum floor area ratios, applicable land development regulations, a statement by each local government included in a smart growth area of consistency with the applicable local comprehensive plan, and existing and planned centralized water and sewer services, as appropriate.

(b) Upon submission of a smart growth area or areas by a [regional planning agency] or county or amendments to a existing regional or county smart growth area or areas, the [state planning agency] shall review, and, within [60 or 90] days of submission, determine in writing whether the smart growth area or areas meet(s) the requirements of paragraph (4)(b) above. If the [state planning agency] determines that the area or areas meet such requirements, it shall certify the approval of such areas.

(c) Prior to formal submission of a smart growth area, the [regional planning agency] or county may submit the proposed area to the [state planning agency] for informal technical assistance, review and comment, and the opportunity for public review in the manner prescribed by the [state planning agency].

(d) The [state planning agency] may enter into agreements with [regional planning agencies] to conduct the review required by subparagraph (b) above, but the responsibility to certify the approval of smart growth areas shall be retained by the [state planning agency] and shall not be delegated.

(e) The [regional planning agency] or county shall, at least every [five] years, review its smart growth area designations and determine in writing whether or not they still comply with the requirements of paragraph (4)(b) above. If the [regional planning agency] or county determines that the smart growth areas as currently designated no longer comply with paragraph (4)(b) above, it shall amend the designations appropriately.

(10) This Section may not be construed to prevent a state agency from providing technical assistance to a local government in an area that is not a smart growth area.

Note 4A — A Note on State Planning Goals

State plans address goals through a number of different approaches. State goals may be: (1) included in the legislation as part of a state planning act as is the case in Hawaii, Rhode Island, Vermont, and Washington; (2) developed by an independent process and later adopted by some body or agency (e.g., the governor, the legislature, the state planning agency) by administrative rule, as in Connecticut, Florida, New Jersey, and Oregon, and included in the plan document; or (3) approached as "visions" (e.g., Maryland) or "themes" intermixed with objectives and policies (e.g., Hawaii). (See Table 4-5.)

The process of creating goals often involves a public participation procedure driven by state administration. Oregon's statewide program for land-use planning, for example, is administered by the Department of Land Conservation and Development (DLCD).[151] As such, the DLCD is responsible for the creation, adoption, and implementation of Oregon's statewide planning goals.[152] Other statewide processes may involve a series of public meetings administered by a specified task force charged with developing a series of statewide visions. The process can be hand-led by a state agency or delegated to an independent organization that can obtain widespread dialogue and consensus. For example, a university-affiliated local government research institute or a private, nonprofit organization can also have an effective role managing a goal-setting process at the behest of the government agency. Because they may not be not seen as having a direct interest in the outcome of the goal-setting process, they may more easily help participants reach agreement.[153]

There are advantages to goals devised and administered by an independent agency and later enacted as compared to goals included in the original legislation. Having an independent agency develop and review goals provides the goals with an agency that is responsible for them (a "home" — such as the DLCD). This encourages the agency to demonstrate greater accountability for the ultimate implementation of the goals. Goals contained in a separate document or developed through a rule-making process, rather than sprinkled throughout legislation, also indicate a clear direction or vision for the state. Most important, since state planning goals are often an evolving end, omitting them from the legislation provides states with an opportunity to more easily adapt and/or amend their goals to changing circumstances.

A list of typical subject areas for goals, with sample goals from selected states begins below.

Land Use

• To promote orderly growth and development that recognizes the natural characteristics of the land, its suitability for use, and the availability of existing and proposed public and/or private services and facilities. R.I. Gen. Laws § 45-22.2-3 (1995).

• To establish a land-use planning process and policy framework as a basis for all decisions and actions related to use of land and to assure an adequate factual base for such decisions. Department of Land Conservation and Development, Oregon's Statewide Planning Goals and Guidelines, 1995 Edition (Salem, Ore.: The Department, 1995), 3.

Economic Development

• To provide a strong and diverse economy that provides satisfying and rewarding job opportunities and that maintains high environmental standards, and to expand economic opportunities in areas with high unemployment or low per capita incomes. Vt. Stat. Ann. § 4302 (1995).

• Encourage economic development throughout the state that is consistent with adopted comprehensive plans, promote economic opportunity for all citizens of this state, especially for unemployed and for disadvantaged persons, and encourage growth in areas of insufficient economic growth, all within the capacities of the state's natural resources, public services, and public facilities. Wash. Rev. Code Ann. § 36.70A.020 (1995).

• To provide adequate opportunities throughout the state for a variety of economic activities vital to the health, welfare, and prosperity of Oregon's citizens. Department of Land Conservation and Development, Oregon's Statewide Planning Goals and Guidelines, 1995 Edition (Salem, Ore.: The Department, 1995), 16.

Housing

• Encourage the availability of affordable housing to all economic segments of the population of this state, promote a variety of residential densities and housing types, and encourage preservation of existing housing stock. Wash. Rev. Code Ann. § 36.70A.020 (1995).

• To promote a balance of housing choices, for all income levels and age groups, and which recognizes the affordability of housing as the responsibility of each municipality and the state. R.I. Gen. Laws § 45-22.2-3 (1995).

• To establish and maintain an adequate supply of decent and affordable housing in a suitable living environment for all citizens. Office of Policy and Management, Conservation and Development: Policies Plan for Connecticut 1992-1997 (Hartford, CT: The Office, n.d.), 54.

• The public and private sectors shall increase the affordability and availability of housing for low-income and moderate-income persons, including citizens in rural areas, while at the same time encouraging self-sufficiency of the individual and assuring environmental and structural quality and cost-effective operations. Fla. Stat. Ann. § 187.201(5)(a) (1991).

• Provide adequate housing at a reasonable cost. New Jersey State Planning Commission, Communities of Place: The New Jersey State Development and Redevelopment Plan (Trenton, N.J.: The Commission, June 12, 1992), 10.

Public Services or Facilities, excluding transportation

• Florida shall protect the substantial investments in public facilities that already exist and shall plan for and finance new facilities to serve residents in a timely, orderly, and efficient manner. Fla. Stat. Ann. § 187.201(18)(a) (1991).

• Ensure that those public facilities and services necessary to support development shall be adequate to serve the development at the time the development is available for occupancy and use without decreasing current service levels below locally established minimum standards. Wash. Rev. Code Ann. § 36.70A.020 (1995).

• To plan and develop a timely, orderly, and efficient arrangement of public facilities and services to serve as a framework for urban and rural development. Department of Land Conservation and Development, Oregon's Statewide Planning Goals and Guidelines, 1995 Edition (Salem, Ore.: The Department, 1995), 18.

Transportation

• To provide for safe, convenient, economic, and energy efficient transportation systems that respect the integrity of the natural environment, including public transport options and paths for pedestrians and bicyclers. Vt. Stat. Ann. § 4302 (1995).

• To provide an integrated, efficient, and economical transportation system which provides mobility, convenience, and safety which meets the needs of all citizens, including transit-dependent and disabled. Office of Policy and Management, Conservation and Development: Policies Plan for Connecticut 1992-1997 (Hartford, CT: The Office, n.d.), 46.

• Encourage efficient multimodal transportation systems that are based on regional priorities and coordinated with county and city comp-rehensive plans. Wash. Rev. Code Ann. § 36.70A.020 (1995).

Natural Resource Protection, excluding air quality

• To provide for the wise and efficient use of Vermont's natural resources and to facilitate the appropriate extraction of earth resources and the proper restoration and preservation of the aesthetic qualities of the area. Vt. Stat. Ann. § 4302 (1995).

• To consider the use of resources and the consequences of growth and development for the region and the state, as well as the community in which it takes place. Vt. Stat. Ann. § 4302 (1995).

Air Quality

• Florida shall comply with all national air-quality standards by 1987, and by 1992 meet standards more stringent than 1985 standards. Fla. Stat. Ann. § 187.201(11)(a) (1991).

• To achieve and maintain a quality of air that is protective of public health and welfare and that allows attainment of economic and urban development goals. Office of Policy and Management, Conservation and Development: Policies Plan for Connecticut 1992-1997 (Hartford, Conn.: The Office, 1992), 91.

Energy

• To provide for sustainable and efficient use of energy and natural resources through least-cost planning techniques in order to provide a viable economy, a healthy environment, and a high quality of life. Office of Policy and Management, Conservation and Development: Policies Plan for Connecticut 1992-1997 (Hartford, CT: The Office, 1992), 37.

• Florida shall reduce its energy requirements through enhanced conservation and efficiency measures in all end-use sectors, while, at the same time, promoting an increased use of renewable energy sources. Fla. Stat. Ann. § 187.201(12)(a) (1991).

• To encourage the efficient use of energy and the development of renewable energy sources. Vt. Stat. Ann. § 4302 (1995).

Agricultural and Forest Land Preservation

• To encourage and strengthen agricultural and forest industries. Vt. Stat. Ann. § 4302 (1995).

• To conserve forest lands by maintaining the forest land base and to protect the state's forest economy by making possible economically efficient forest practices that assure the continuous growing and harvesting of forest tree species as the leading use on forest land consistent with sound management of soil, air, water, and fish and wildlife resources and to provide for recreational opportunities and agriculture. Department of Land Conservation and Development, Oregon's Statewide Planning Goals and Guidelines, 1995 Edition (Salem, Ore.: The Department, 1995), 7.

• To preserve and maintain agricultural lands. Department of Land Conservation and Development, Oregon's Statewide Planning Goals and Guidelines, 1995 Edition (Salem, Ore.: The Department, 1995), 6.

Intergovernmental Relations

• To promote consistency of state actions and programs with municipal comprehensive plans, and provide for review procedures to ensure that state goals and policies are reflected in municipal comprehensive plans and state guide plans. R.I. Gen. Laws § 45-22.2-3 (1995).

• Ensure sound and integrated planning statewide. New Jersey State Planning Commission, Communities of Place: The New Jersey State Development and Redevelopment Plan (Trenton, N.J.: The Commission, June 12, 1992), 11.

• To establish a coordinated, comprehensive planning process and policy framework to guide decisions by municipalities, regional planning commissions, and state agencies. Vt. Stat. Ann. § 4302 (1995).

• To encourage and assist municipalities to work creatively together to develop and implement plans. Vt. Stat. Ann. § 4302 (1995).

Urbanization

• Revitalize the state's urban centers and areas. New Jersey State Planning Commission, Communities of Place: The New Jersey State Development and Redevelopment Plan (Trenton, N.J.: The Commission, June 12, 1992), 7.

• To plan development so as to maintain the historic settlement pattern of compact village and urban centers separated by rural countryside. Vt. Stat. Ann. § 4302 (1995).

• Encourage development in urban areas where adequate public facilities and services exist or can be provided in an efficient manner. Wash. Rev. Code Ann. § 36.70A.020 (1995).

• Reduce the inappropriate conversion of undeveloped land into sprawling, low-density development. Wash. Rev. Code Ann. § 36.70A.020 (1995).

• To provide for an orderly and efficient transition from rural to urban land use. Department of Land Conservation and Development, Oregon's Statewide Planning Goals and Guidelines, 1995 Edition (Salem, Ore.: The Department, 1995), 21.

Citizen Participation

• To encourage citizen participation at all levels of the planning process, and to assure that decisions shall be made by municipalities, regional planning commissions, and state agencies. Vt. Stat. Ann. § 4302 (1995).

• To develop a citizen involvement program that insures the opportunity for citizens to be involved in all phases of the planning process. Department of Land Conservation and Development, Oregon's Statewide Planning Goals and Guidelines, 1995 Edition (Salem, Ore.: The Department, 1995), 1.

• The achievement of "[a] desired physical environment, characterized by beauty, cleanliness, quiet, stable natural systems, and uniqueness, that enhances the mental and physical well-being of the people." Haw. Rev. Stat. § 226-4 (1995 Supp).

Miscellaneous

Critical Areas

• Florida shall ensure that development and marine resource use and beach access improvements in coastal areas do not endanger public safety or important natural resources. Florida shall, through acquisition and access improvements, make available to the state's population additional beaches and marine environment, consistent with sound environmental planning. Fla. Stat. Ann. § 187.201(9)(a) (1991).

• Florida shall protect and acquire unique natural habitats and ecological systems, such as wetlands, tropical hardwood hammocks, palm hammocks, and virgin longleaf pine forests, and restore degraded natural systems to a functional condition. Fla. Stat. Ann. § 187.201(10)(a) (1991).

• To recognize and protect the unique environmental, economic, and social values of each estuary and associated wetlands; and to protect, maintain, where appropriate develop, and where appropriate restore, the long-term environmental, economic, and social values, diversity and benefits of Oregon's estuaries. Department of Land Conservation and Development, Oregon's Statewide Planning Goals and Guidelines, 1995 Edition (Salem, Ore.: The Department, 1995), 26.

• To conserve, protect, where appropriate develop, and where appropriate restore, the resources and benefits of coastal beach and dune areas; and to reduce the hazard to human life and property from natural or man-induced actions associated with these areas. Department of Land Conservation and Development, Oregon's Statewide Planning Goals and Guidelines, 1995 Edition (Salem, Ore.: The Department, 1995), 33.

Downtown Revitalization

• In recognition of the importance of Florida's developing and redeveloping downtowns to the state's ability to use existing infrastructure [sic] and to accommodate growth in an orderly, efficient, and environmentally acceptable manner, Florida shall encourage the centralization of commercial, governmental, retail, residential and cultural activities within downtown areas. Fla. Stat. Ann. § 187.201(17)(a) (1995).

Education

• The creation of an educational environment intended to provide adequate skills and knowledge for students to develop their full potential, embrace the highest ideas and accomplishments, make a positive contribution to society, and promote the advancement of knowledge and human dignity. Fla. Stat. Ann. § 187.201 (1995).

• To broaden access to educational and vocational training opportunities sufficient to ensure the full realization of the abilities of all Vermonters. Vt. Stat. Ann. § 4302 (1995).

Families

• Florida shall strengthen the family and promote its economic independence. Fla. Stat. Ann. § 187.201 (1991).

Historic Preservation

• Identify and encourage the preservation of lands, sites, and structures that have historical or archaeological significance. Wash. Rev. Code Ann. § 36.70A.020 (1995).

• To identify, protect, and preserve important natural and historic features of the Vermont landscape, including

. . . important historic structures, sites, or districts, archaeological sites and archaeologically sensitive areas. Vt. Stat. Ann. § 4302(D) (1995).

Natural Disasters and Hazards

• To protect life and property from natural disasters and hazards. Department of Land Conservation and Development, Oregon's Statewide Planning Goals and Guidelines, 1995 Edition (Salem, Ore.: The Department, 1995), 11.

• Require local governments, in cooperation with regional and state agencies, to prepare advance plans for the safe evacuation of coastal residents. Fla. Stat. Ann. § 187.201(7)(b)24 (1995).

• Require local governments, in cooperation with regional and state agencies, to adopt plans and policies to protect public and private property from the effects of natural disasters. Fla. Stat. Ann. § 187.201(7)(b)25 (1995).

Property Rights

• Private property shall not be taken for public use without just compensation having been made. The property rights of land owners shall be protected from arbitrary and discriminatory actions. Wash. Rev. Code Ann. § 36.70A.020 (1995).

• Florida shall protect private property rights and recognize the existence of legitimate and often competing public and private interests in land use regulations and other government action. Fla. Stat. Ann. § 187.201 (1991).

Examples of additional subjects of goals contained in statutes and plans nationwide, but not contained in the above categories include:

Connecticut: water (supply and management); food production; waste; natural and cultural resources

Florida: children; the elderly; health; public safety; water resources; hazardous and nonhazardous materials and waste; mining; cultural and historical resources; governmental efficiency; the economy; agriculture; tourism; employment; plan implementation

Oregon: open spaces; scenic and historic areas; natural resources; recreational needs; Willamette River Greenway; ocean resources

Rhode Island: resources; open space (recreational); innovative development regulations; data collection and dissemination; comprehensive plan consistency; subsidized housing

Vermont: recreation

Washington: permits; natural resource industries; open space and recreation; environment

Note 4B — A Note on State Planning Approaches to Promote Affordable Housing

There are several general approaches that states nationwide have employed to ensure (to varying degrees of success) the availability of housing, especially at appropriate locations in relation to work-sites, for low- and moderate-income households. These efforts have primarily been in the form of either voluntary legislation or court-mandated programs and have assumed three general molds that are described below: "bottom-up" approach; "top-down" approach; and appeals. Whatever the form, however, each method is an attempt to proactively remove barriers to affordable housing and place affirmative obligations on local governments to ensure its provision. In most cases, proactive state involvement has been especially critical as communities are often reluctant to initiate their own efforts to encourage affordable housing.

(1) Bottom-up Approach. A bottom-up approach to the provision of affordable housing is one in which the preparation of housing plans is a collaborative effort between a regional planning agency and local governments under state supervision. California is an example of a quasi-bottom-up approach.;[154] California statutes require each local government to adopt "a comprehensive, long-term general plan,"[155] with seven mandatory plan elements, one of which must address housing. The statute contains detailed requirements for the housing element which has six parts: review of the previous housing element; existing and projected needs assessment; resource inventory; identification of governmental and nongovernmental constraints on housing; quantified housing objectives; and housing programs.[156]

Under the statute, the primary factor in the local government's housing needs assessment must be the allocation of regional housing needs prepared by regional councils of governments (COGs) under state supervision. To establish this allocation, the California Department of Housing and Community Development (HCD) determines each COG's share of state housing needs for four income categories (very low, low moderate, moderate, and above moderate). Based on data provided by HCD relative to the statewide need for housing, each COG must then determine the existing and projected need for its region. The HCD has 30 days to review the COG's determination "to ensure that it is consistent with the statewide housing need" and may revise the need figure "if necessary to obtain consistency."[157] The COG must determine, with HCD's advice, each city's or county's share. The statute does not spell out the formula the COGs are to use in allocating the need, but instead provides a list of criteria.[158] The COGs design the assumptions and methodologies themselves and submit them to HCD. They also submit their draft allocations for local comment and conduct public hearings on them before they become final. Local governments can then propose revisions to their assessed shares of needs before the allocations become final.[159]

Local governments must then include the COG's share of regional housing need in their individual housing plans.[160] The statutes require that a local governments's housing element identify specific sites to accommodate housing needs for all household income levels and "provide for sufficient sites with zoning that permits owner-occupied and rental multifamily residential use by right, including density and development standards that could accommodate and facilitate the feasibility of housing for very low and low-income households."[161] Local governments must periodically revise the housing elements as appropriate, but not less than every five years.[162]

HCD has the authority to review local housing elements or amendments to determine whether they "substantially comply" with the statute prior to their adoption by the governmental unit. HCD may submit written comments which the local government may then incorporate into the housing element or amendment.[163] Alternatively, the local government may adopt the draft element or amendment without changes, provided that the legislative body includes in its adopting resolution findings that indicate why it believes the element or amendment "substantially complies" with the statute, despite HCD's findings.[164] Upon adoption, the local government must send a copy of the element or amendment to HCD.[165]

Beyond this, HCD (and the COGs, for that matter) has no authority to enforce the law, other than providing the advisory analysis of whether the element or amendment complies with the law, or withholding state distributed Community Development Block Grant or other federal monies. While the California statutes do permit private action[166] to compel a local government to meet its legal obligations, according to one analysis, the state courts are often reluctant to intervene in local land use decisions.[167]

As of 1993, 219 of the 527 (42 percent) local governments had housing elements that were in substantial compliance with the requirements of the California statute. One observer noted:

In light of prevalent noncompliance with the housing element law, it is not surprising that localities are not meeting their fair share targets. The failure to meet fair share targets most severely impacts the lower end of the housing market. In 1985, it was established that 600,000 low-income units would be needed by 1990. Only 16 percent, or 97,424, of the needed units were built. Twenty-four percent of California localities did not produce a single low-income housing unit during the five-year period from July 1987 to July 1992. Although localities appear to have been more successful in generating moderate-cost housing developments, there remains a substantial gap between median home prices and incomes of first- time home buyers.[168]

An analysis prepared for the U.S. Department of Housing and Urban Development reached a similar conclusion: "While much has been accomplished," it found, "the overall California housing planning process — and the local elements, specifically — have made only a start in fully meeting the state's overall housing needs, especially at affordable levels."[169]

Another example of a more pure form of bottom-up approach is the fair-share model first proposed (but never enacted by any state) by the U.S. Advisory Commission on Intergovernmental Relations in 1975.[170] The ACIR model mandated regional planning agencies to prepare a regional low- and moderate-income housing allocation plan and submit it to an appropriate state administrative agency. However, in contrast to the California approach which incorporated concepts from the ACIR model, no statewide need is computed. Rather, based on the regional estimate of need, each city and county is allocated a fair share of the regional total pursuant to several statutory criteria. The regional plan and allocations must be reviewed annually and revised as necessary. Local governments and the residents must be notified of the proposed plan and allocations. Citizens must be allowed to be present and be heard at a public hearing prior to the plan's adoption by the agency.

The ACIR model permits local governments to grant density bonuses to developers in exchange for making substantial provisions for low- and moderate-income housing. It also provides that proposals for affordable housing projects be filed with the local government which must hold a public hearing on the application and render a decision within a fixed period of time. If the local governments' regional fair-share allocation is not satisfied or reasonably provided for at the time of the hearing, it must approve the application, with or without conditions.

If a project is either denied or approved with conditions, the statute allows the applicant to appeal the local decision to a state planning agency. The issues that may be appealed to the state are limited to: (1) whether the local government has satisfied or provided for the attainment of its regional fair share; and (2) whether conditions attached to the local approval would render the construction or operation of the project economically infeasible. After a formal public hearing, the state agency may vacate the local denial or modify the conditions appropriately. In making its determination, the state agency must also consider the state development plan and any relevant local plans and programs. State agency orders may be enforced by the petitioner, a regional agency, or the state agency.

The ACIR model requires the state housing finance agency to endeavor to satisfy a local government's regional fair share if the state agency determines after a hearing that the local government has not satisfied or is not attempting to satisfy its fair share. The state housing finance agency is authorized to lease space in privately owned dwellings in jurisdictions that fail to meet fair- share allocations.

(2) Top-Down Approach. The top-down approach to the provision of affordable housing is one in which the state (often by court mandate) establishes housing goals for individual local governments based on regional needs projections. New Jersey is an example of a state that has adopted a top-down approach. In New Jersey, a specialized state agency, the Council on Affordable Housing (COAH) created by the State's Fair Housing Act of 1985,[171] oversees the affordable housing effort. The New Jersey statute was prompted by the Mt. Laurel anti-exclusionary zoning cases decided by the New Jersey Supreme Court in 1975 (Mt. Laurel I )[172] and 1983 (Mt. Laurel II).[173] The Act was upheld by the New Jersey Supreme Court in 1986 (Mt. Laurel III).[174]

In those rulings, the New Jersey Supreme Court held that the state's local zoning statutes had to be read in the context of a state — not federal — constitutional requirement to legislate "for the general welfare."[175] Local governments that enacted zoning had an obligation to provide realistic opportunities for low- and moderate-income housing. Any zoning ordinance that denied reasonable opportunities to meet the local government's fair share of a region's low- and moderate-income housing need failed the state's constitutional requirements in this regard.

The statute charges COAH with determining housing regions for the state and estimating the present and prospective need for low- and moderate-income housing at the state and regional levels. COAH is to then allocate a fair share to each municipality in the housing region and can make adjustments based on environmental, infrastructure, historic preservation, or other considerations.[176]

Municipalities may then elect to complete housing elements.[177] In the element, municipalities must show how they will address the present and prospective need figures calculated by COAH and identify techniques, including subsidies and amendments to zoning codes, for providing low- and moderate-income housing. A municipality may petition COAH for "substantive certification" of its housing element.[178] COAH can grant substantive certification if the petitioning municipality's housing element is found to "make the achievement of the municipality's fair share of low- and moderate-income housing realistically possible."[179] The certification may be linked to the adoption of ordinances, such as rezoning to higher densities, that implement the housing element.[180]

Preparation of the housing element and petitioning for substantive certification are voluntary. The primary incentive for substantive certification is protection from the "builder's remedy" contained in the Mt. Laurel II decision.[181] The builder's remedy is a legal mechanism by which builder/developers can petition the courts for permission to proceed with an affordable housing development in communities that have previously failed to authorize such housing or have approved only minimal amounts. Substantive certification to a municipality by COAH provides a statutorily created "presumption of validity" against any claim against the local government in an exclusionary zoning lawsuit brought against it.[182]

According to a 1994 analysis by Rutgers University's Center for Urban Policy Research, the Fair Housing Act and the Mt. Laurel rulings have had the following impact in New Jersey:

• Overall, 57,174 affordable housing units have been zoned for, constructed, rehabilitated, or planned for over the period 1987 to 1992. Of these, about 25 percent of this activity has taken place under COAH's jurisdiction; another 75 percent has been influenced by the presence of COAH or its predecessor, the courts of New Jersey.

• Of the 57,174 units, about 13, 831, or 25 percent, have actually been constructed. Of these, about 53 percent has taken place under COAH's jurisdiction, and the remaining 47 percent has been influenced by either COAH or the courts.

• Another 40,343 units (75 percent of all affordable housing activity) are zoned or planned for rehabilitation in the future. Of these, 15 percent has taken place under COAH's jurisdiction and the remaining 85 percent has been influenced by COAH or the courts.

• Over a five-year period, COAH and the courts have overseen or influenced affordable housing at a rate of 11,000 land parcels per year. Over 25 percent of this number annually has come to fruition in the form of developed or rehabilitated housing.[183]

(3) Appeals Approach. As its name suggests, an appeals approach to the provision of affordable housing is based on the existence of a state-level appeals process in which a court or a special board reviews local decisions regarding proposed affordable housing developments. Three New England states, Massachusetts,[184] Connecticut,[185] and Rhode Island,[186] now provide for a direct appeal and override of local decisions which reject or restrict proposals for low- or moderate-income housing. They have each established a procedure by which an appeals board (in Massachusetts[187] and Rhode Island) or a court (in Connecticut) can set aside local zoning decisions blocking housing developments that receive federal or state assistance.[188]

These statutes tend, either explicitly or implicitly, to reverse or shift the burden of proof. The local government must now justify its exclusion of the affordable housing project, or the conditions that make the project economically infeasible, whereas before, developers had the burden of showing why they should be granted relief from zoning requirements.

Shifting the burden of proof in the housing appeals statutes serves several important purposes:

They are strong statements that affordable housing is a state priority to which local governments must be sensitive. They provide teeth for local and regional housing plans without forcing local governments to relinquish control over land development. And they give affordable housing advocates and developers a means to overcome opposition to such housing.[189]

The affordable housing appeals statutes are not planning statutes per se; they require no planning framework at the state, regional, or local levels. However, housing goals may enter into the state appeals process. In Rhode Island, for example, local zoning and other land use ordinances are to be considered "consistent with local needs" if they implement a comprehensive plan with a housing element that provides for low- and moderate-income housing in excess of ten percent of the housing units in the community.[190] Whether the local government meets, or plans to meet, the 10 percent requirement is a standard under which a case is reviewed when a local decision involving an affordable housing project is appealed.[191]

How have these appeals statutes worked? According to Rutgers University's Center for Urban Policy Research (CUPR), under the Massachusetts program, there were 458 comprehensive permit applications for affordable housing filed under the comprehensive permit program between 1969 and 1986. These represented a proposed 33,884 housing units. CUPR, in 1994, placed its "guesstimate" of some 20,000 housing units completed and occupied under the statute since its inception.[192] In Connecticut, the appeals process, in effect since 1989, has led to the local approval statewide of some 250 to 500 affordable housing units by the end of 1993.[193] The Rhode Island statute was enacted in 1991. Its governing regulations were released a year later. From 1992 to 1993, there were only three appeals to the Housing Appeals Board (HAB), one of which was not properly filed and therefore could not be officially be heard by the state, a second that upheld a local community's denial, and a third where the HAB remanded the application to the local zoning board for further review on the issue of traffic safety. As of 1994, there had been no units built under the program.[194]

 

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