State Planning Bibliography

[1] Harold F. Wise, History of State Planning — An Interpretive Commentary (Washington: Council of State Planning Agencies, 1977), 10.

[2] National Resources Committee, The Future of State Planning: A Report to the Advisory Committee by the State Planning Review Group (Washington, D.C.: U.S. GPO, March 1938), 3.

[3] Id., 3-4.

[4] Id., 9. For other reports discussing state planning activities in the 1930s and 40s, see, e.g., National Resources Board, State Planning: Review of Activities and Progress (Washington, D.C.: U.S. GPO, June 1935); American Society of Planning Officials, Newsletter I, no. 11 (December 1935) (special issue on state planning); National Resources Committee, State Planning: Programs and Accomplishments (Washington, D.C.: U.S. GPO, December 1936); and National Resources Planning Board, State Planning (Washington, D.C.: U.S. GPO, June 1942).

[5] Wise, History of State Planning, 12.

[6] Id., 12, 13. See also Leopold A. Goldschmidt, Principles and Problems of State Planning, Planning Advisory Service Report No. 247 (Chicago: American Society of Planning Officials, June 1969).

[7] Wise, 14-15. See also Patricia E. Salkin, "Regional Planning in New York State: A State Rich in National Models, Yet Weak in Overall Statewide Planning Coordination," Pace L. Rev.13, no. 2 (Fall 1993): 512-513 (discussion of New York State development policy report).

[8] Salkin "Regional Planning in New York State": 513, citing State of New York, Office of Planning Coordination, New York State Development Plan — I (Albany, N.Y.: January 1971), 8, 44, 50, and 88.

[9] Id., 516.

[10] Id., 18.

[11] 82 Stat. 1103.

[12] Frank S. So, Irving Hand, and Bruce D. McDowell, eds., The Practice of State and Regional Planning (Washington, D.C.: International City Management Association, 1986), 75. The A-95 review process has since been modified by the federal government. The A-95 Circular has been replaced by a Presidential Executive Order, No. 12372, of July 14, 1982, Federal Register 47, no. 137, July 15, 1982.

[13] See generally Fred Bosselman and David Callies, The Quiet Revolution in Land-Use Control (Washington, D.C.: U.S. GPO, 1971); John M. DeGrove, Land, Growth, and Politics (Chicago, IL: APA Planners Press, 1984); and John M. DeGrove with Deborah A. Miness, The New Frontier for Land Policy: Planning and Growth Management in the States (Cambridge, Mass.: Lincoln Institute for Land Policy, 1992).

[14] Mass. Ann. Laws, Ch. 40B, § § 20-23 (1993& Supp. 1994); Conn. Gen. Stat. Ann.§ 80-30g (1989& Supp. 1994); and R.I. Gen. Laws § § 45-53-1 to -7 (1991& Supp. 1994).

[15] Marc Bernstein, "Survey of Centralized Planning Efforts of State Governments," in Growth Management and Strategic Planning: A Background Reader (Richmond, Va: Commission on Population Growth and Development, July 1994), 2. The states are Arkansas, Florida, Hawaii, Maryland, New Jersey, Oregon, Rhode Island, and Vermont. Arkansas' Commission for Arkansas' Future was created in 1989 to develop the state's comprehensive plan. Ark. Code Ann. § 25-25-101 (Supp. 1993). New Jersey established its Office of State Planning and its State Planning Commission when it enacted its State Planning Act of 1985. N.J.S.A. § 52:18A-201 (1995 Supp.). The Office of State Planning exists within the Department of Treasury and the director serves at the pleasure of the governor. The office assists the State Planning Commission in creating and revising the State Development and Redevelopment Plan. Rhode Island's statewide planning program includes the State Planning Council, the Office of Strategy Planning, and the Office of Systems Planning. R.I. Gen. Laws § 42-11-10(b)(2) (1993). The Office of Strategic Planning and the Office of Systems Planning are both housed in the Division of Planning, which is located in the Department of Administration.

[16] Bernstein, "Survey of Centralized Planning Efforts," 2.

[17] Id. The states are Alaska, Delaware, North Dakota, and South Carolina. Delaware does, however, have a Cabinet Committee on State Planning. Del. Stat. Ann. Tit. 29 § 9101 (1994).

[18] Id.

[19] Id. According to the Virginia report, California's Office of Planning and Research assists the Department of Finance in the budgeting process. Cal. Gov't. Code § § 65037, 65038 (1992). Minnesota maintains an independent cabinet level strategic planning agency, the Office of Strategic Long-Range Planning. The office coordinates with the commissioner of finance, affected agencies, and the legislature in the planning and financing of major public projects. Minn. Stat. § 4A.01 (Supp. 1993). Under the Texas strategic planning legislation, planning authority is lodged in two agencies, the Governor's Office of Budget and Planning and the Legislative Budget Board. The Governor's Office, housed within the executive branch, has responsibility for developing the initial draft of Texas Tomorrow, "a statement of the vision, philosophy, mission, and goals" for the state. H. 2009, 72d Leg. § 3 (1991). The Legislative Budget Office, a ten-member board within the legislative branch comprised solely of members of the legislature, monitors and analyzes performance indicators supplied by the planning process. Rhode Island, discussed above, requires "close coordination" between strategic planning and budgeting. Washington's Office of Financial Management is responsible for state planning and program development, including budgeting. Wash. Rev. Code Ann. § § 43.41.030 to 43.41.980 (1994).

[20] Lynn Muchmore, Concepts of State Planning (Washington, D.C.: Council of State Planning Agencies, 1977), 6, 10-11.

[21] Mitch Rohse, "Recommendations for the Role and Structure of State Planning Agencies," in Modernizing State Planning Statutes: The Growing Smart Working Papers, Vol. 1, Planning Advisory Service Report 462/463 (Chicago: American Planning Association, March 1996), 79-84.

[22] State of Virginia, HB 1068, 2-5-94, "Virginia Growth Strategies Act."

[23] Rohse, "Recommendations for the Role and Structure of State Planning Agencies," 84.

[24] Id.

[25] Id.

[26] Wise, History of State Planning, 11.

[27] Model legislation drafted in 1935 by Attorneys Edward Bassett and Frank B. Williams proposed a state planning commission. The Bassett/Williams model consisted of a commission of five members. One member was to be the head of the highway department, another was to be head of the state park department, and the remaining three were to be citizen members appointed by the governor. The commission was required to prepare a state master plan and official map and advise governing bodies and planning commissions of counties and municipalities in "accomplishing a coordinated, adjusted and harmonious development of the state." Edward M. Bassett, Frank B. Williams, Alfred Bettman, and Robert Whitten, Model Laws for Planning Cities, Counties, and States Including Zoning, Subdivision Regulation, and Protection of the Official Map (Cambridge: Harvard University Press, 1935), 54. Attorney Alfred Bettman proposed a similar model, except that the six-member commission membership included heads of the state departments of highways, public works, health, and agriculture, a member of the faculty of the state university (selected by the governor from a list submitted by the university's president), and one other member to be appointed by the governor. The commission's job was to prepare and adopt a state master plan; to advise and cooperate with municipal, county, regional, and other local planning commissions within the state; and to furnish advice to any state department or officer on any matter relating to state planning. The commission was authorized to prepare and submit to the governor or state legislature drafts of legislation for carrying out the master plan or any part thereof. Id., 110-119.

[28] Md. Code Ann., State Finance and Procurement, § § 5-701 to 5-708 (1995). See also Pa. Stat. Ann. § § 1049.2 to 1049.3 (1995) (establishment and powers and duties of state planning board).

[29] N.J.S.A. § 52:18A-196 et seq. (1995 Supp).

[30] Ore. Rev. Stat. § 197.303 et seq., esp. § 197.040 (1994).

[31] Del. Code Ann, Tit. 29, § 9101 (Cabinet Committee on State Planning Issues) (1995).

[32] See, e.g., the Illinois Department of Commerce and Community Affairs whose planning authority is described in, 20 ILCS § 605/46.7 (Official state planning agency — acceptance and use of federal funds) and 20 ILCS § 605/46.39 (1993) (Planning — funds — cooperative efforts); Ohio Department of Development whose planning authority is described in Ohio Rev. Code § 122.06 (1994) (Planning duties).

[33] H.W. Davies, "England," in Planning Control in Western Europe (London, England: Her Majesty's Stationary Office, 1989), 36. The function of the DoE in the context of mandatory planning has been discussed as follows:

If a state chose to exert a high level of oversight [of local government compliance with state policies related to mandatory planning], the state agency's responsibilities would follow those of the DoE: issue regulation; provide guidance; call-in applications [for review of development proposals that would otherwise be the responsibility of local government and that substantially depart from a local plan, or have national consequences, such as power plants]; consider appeals; and approve comprehensive plans and zoning ordinances.

Jay Hicks, "Lessons from the British for State Statutory Reform," in Modernizing State Planning Statutes: The Growing Smart Working Papers, Vol. 1, Planning Advisory Service Report No. 463/463 (Chicago: American Planning Association, March 1996), 69.

[34] E.H. Haskell and V.S. Price, State Environmental Management: Case Studies of Nine States (New York: Praeger, 1973), 252-255. The authors also provide two case studies describing early planning reform efforts in Vermont and Maine.

[35] See Cal. Gov't. Code, § 65040.9 and § § 65922.3 to 65922.5 (1994) for a description of an Office of Permit Assistance and its duties. This office is located within the Office of Planning and Research.

[36] For a description of an independent planning and research institute, with a possible affiliation with a state university, see American Law Institute (ALI), A Model Land Development Code (Philadelphia, Pa.: ALI, 1976), § § 8-601 to 8-602. The institute is not given the power to prepare comprehensive plans — as that would conflict with the function of the state planning agency — but can conduct long-range research, issue reports, and conduct educational seminars and other programs. Id., § 8-602.

[37] This assumes that the state legislature is bicameral. Where there is only one house, substitute the legislature's title for "senate."

[38] The list of state department directors is for illustrative purposes only since departments may have different titles in each state. In some states, for example, the director of the department of emergency services is a division head in a larger department, such as the department of the environment.

[39] This provision is based on N.J.A.C. § § 17.32-6.1 to 17.32-6.5, which authorizes the New Jersey State Planning Commission to issue "letters of clarification" interpreting the State Development and Redevelopment Plan.

[40] See, e.g., Uniform Law Commissioners' Model State Administrative Procedures Act (1981) in Uniform Laws Ann. 15 (St. Paul: West, 1990).

[41] Wash. Admin. Code, Ch. 365-1993, (Procedural Criteria for Adopting Comprehensive Plans and Development Regulations) (1993); Ga. Admin. Code, Chapter 110-3-2 (Minimum Standards and Procedures for Local Comprehensive Planning) (1992).

[42] See, e.g, Washington State Department of Community Development, Growth Management Division, Small Communities Guide to Comprehensive Planning: A Model Comprehensive Plan (Olympia, Wash.: The Department, June 1993); ___________, State Review of Local Growth Management Comprehensive Plans (Olympia, Wash.: The Department, March 17, 1993).

[43] American Law Institute, A Model Land Development Code § 8-201.

[44] Minnesota Planning, Minnesota Milestones: A Report Card for the Future (St. Paul, Minn.: Minnesota Planning, December 1992).

[45] Minnesota Environmental Quality Board, Challenges for a Sustainable Minnesota: A Minnesota Strategic Plan for Sustainable Development (St. Paul, Minn.: The Board, July 1995 Draft), 5.

[46] See, e.g., Ark. Code Ann., Ch. 25 (1993 Supp) (Commission for Arkansas' Future); Hi. Rev. Stat. Ann., Ch. 22 (1995 Supp) (Commission on the Year 2000).

[47] Texas Gov't. Code, Ch. 2056 (1995 Supp) (Strategic plans of operation); Fla. Stat. Ann. § § 186.021 to 186.022 (1995 Supp) (State agency strategic plans); and Ga. Code Ann. § 40-2903 (1995 Supp) (Strategic plans).

[48] Fla. Stat. Ann. § 187.101(2) (1991). The State Comprehensive Plan appears in the Florida statutes rather than as a separate published document.

[49] See Fla. Stat. Ann. § § 380.031(17), 186.021, and 186.022 (1991 and 1995 Supp.).

[50] Florida Department of Community Affairs, 1995 Florida Land Plan: The State Land Development Plan, Revised Public Workshop Draft (Tallahassee, Fla.: The Department, June 1995), 2.

[51] Division of Planning, Rhode Island Department of Administration, State Guide Plan Overview, Report No. 80 (Providence, R.I.: The Division, October 1992), v.

[52] Md.Code Ann., Art. 66B, § 3.06 (Purpose of plan; visions), and Art., State Finance and Procurement, § 5-7A-01 (Statement of policy) (1995).

[53] New Jersey State Planning Commission, Communities of Place: The New Jersey State Development and Redevelopment Plan (Trenton: The Commission, June 12, 1992), 3. Authority for cross acceptance appears in N.J.S.A.§ § 52:18A-202 to 202.1 (1995 Supp.) The cross-acceptance rules appear in N.J.A.C. § § 17:32, Subchapters 3, 4, and 5. For a discussion of the adoption of the New Jersey Plan, see Peter A. Buchsbaum, "The New Jersey Experience," in Peter A. Buchsbaum and Larry J. Smith, eds., State and Regional Comprehensive Planning: Implementing New Methods for Growth Management (Chicago: American Bar Association Section of Urban, State, and Local Government Law, 1993), 176-190; John Epling, "The New Jersey State Planning Process: An Experiment in Intergovernmental Negotiations," in Jay M. Stein, ed., Growth Management: The Planning Challenge of the 1990's (Newbury Park, Cal.: Sage, 1993), 96-112.

[54] New Jersey State Planning Commission, Communities of Place, i-ii, 4-6.

[55] Conn. Gen. Stat. Ann., Ch. 297, Part I (1995).

[56] Id., § 16a-31 (Application of plan).

[57] State of Connecticut, Office of Policy and Management (OPM), Conservation and Development Policies Plan for Connecticut, 1992-1997 (Hartford, Conn.: OPM, 1992), 2.

[58] For a discussion of the fate of such a plan in Vermont and the perception that it would result in statewide zoning, see John DeGrove with Deborah Miness, The New Frontier for Land Policy: Planning and Growth Management in the States (Cambridge, Mass.: Lincoln Institute of Land Policy, 1992), 68; see also Richard M. Brooks, "State and Regional Land Use Planning and Controls," in Patrick J. Rohan, Zoning and Land Use Controls. 5, § 33.03[3][a] (New York: Matthew Bender, 1989 Supp); and Phyllis Meyers, So Goes Vermont: An account of the development, passage, and implementation of state land-use legislation in Vermont (Washington, D.C.: The Conservation Foundation, February 1974), 28-33.

[59] Ark. Code Ann., Ch. 25 (1993 Supp) (Commission for Arkansas' Future); Haw. Rev. Stat. Ann., Ch. 22 (1995 Supp) (Commission on the Year 2000).

[60] For an excellent example of such a plan, see Florida Department of Community Affairs (DCA), Building Partnerships for a Sustainable Florida: 1994-1999 Agency Strategic Plan (Tallahassee, Fl.: DCA, January 1995).

[61] For an example of state benchmarks included in a statute, see Ore. Rev. Stat. § 184.007 (Biennial benchmarks; priority).

[62] Federal regulations require a minimum of 45 days for public review and comment "before procedures and any major revisions to existing procedures are adopted". 23 CFR § 450.212(f). Public involvement processes for statewide transportation planning are to be "proactive and provide complete public information, timely public notice, full public access to key decisions, and opportunities for early and continuing involvement." 23 CFR § 450.212(a).

[63] The concept of the state land development plan first appeared in the ALI Model Land Development Code, § § 8-401 to 8-406.

[64] Federal regulations require a minimum of 45 days for public review and comment "before procedures and any major revisions to existing procedures are adopted". 23 CFR § 450.212(f). Public involvement processes for statewide transportation planning are to be "proactive and provide complete public information, timely public notice, full public access to key decisions, and opportunities for early and continuing involvement." 23 CFR § 450.212(a).

[65] The commentary and model statute in this Section were developed with the assistance of Laura Hood Watchman, a conservation biologist with Defenders of Wildlife, in Washington, D.C., and Caron Whitaker, smart growth and wildlife coordinator, National Wildlife Federation, Washington, D.C. Ms. Watchman and Ms. Whitaker also suggested the inclusion of the model statute in the Legislative Guidebook.

[66] D.S. Wilcove et al., "Leading Threats to Biodiversity: What's Imperiling U.S. Species," in Precious Heritage: The Status of Biodiversity in the United States, B.A. Stein, L.S. Kutner, and J.S. Adams, eds. (New York: Oxford University Press, 2000), 239-254.

[67] See generally B.A. Stein, L.S. Kutner, and J.S. Adams, eds., Precious Heritage: The Status of Biodiversity in the United States, (New York: Oxford University Press, 2000), 23-34.

[68] www.gap.uidaho.edu, January 18, 2001. See also U.S. Geological Survey Gap Analysis Program.A Handbook for conducting Gap Analysis, http://www.gap.uidaho.edu/handbook (version current as of February 24, 2000).

[69] National Oceanic and Atmospheric Administration Coastal Change Program: Guidance for Regional Implementation, www.csc.noaa.gov/crs/lca/protocol.html#c1p2, January 18, 2001.

[70] C. Groves et al., Designing a Geography of Hope: A Practitioner's Handbook for Ecoregional Conservation Planning (Arlington, Va.: The Nature Conservancy, 2000), iii-v.

[71] J. Cox, R. Kautz, M. MacLaughlin, and T. Gilbert, Closing the Gaps in Florida's Wildlife Habitat Conservation System (Tallahassee, Fl.: Florida Game and Freshwater Fish Commission, 1994).

[72] T. Hoctor, M.H. Carr, and P.D. Zwick, "Identifying a Linked Reserve System Using a Regional Landscape Approach: The Florida Ecological Nework," Conservation Biology, Vol. 14, no. 4 (1999): 984-1000.

[73] F.S.A. § 20.255(2)(a)(6) (West 2000). A similar authority exists with the New Jersey Department of Environmental Protection to administer grants for land acquisition for open space, greenways, and conservation purposes. N.J.S.A. 13:8C-24 (West 2000) (establishing Office of Green Acres).

[74] F.S.A. § 260.0142.

[75] F.S.A. § § 259.105 et seq.

[76] T. Weber and J. Wolf, "Maryland's Green Infrastructure—Using Landscape Assessment Tools to Identify a Regional Conservation Strategy," Environmental Monitoring and Assessment, no. 63 (2000): 265-277.

[77] www.dnr.state.md.us/greenways/greenprint, July 27, 2001. Maps from the Maryland Atlas of Greenways, Water Trails, and Green Infrastructure may be viewed and ordered from this site.

[78] www.state.nj.us/dep/fgw/lndscpe.htm. January 19, 2001.

[79] Defenders of Wildlife, Oregon's Living Landscape: Strategies and Opportunities to Conserve Biodiversity (Lake Oswego, Ore.: The Author, 1998).

[80] Federal regulations require a minimum of 45 days for public review and comment "before procedures and any major revisions to existing procedures are adopted". 23 CFR § 450.212(f). Public involvement processes for statewide transportation planning are to be "proactive and provide complete public information, timely public notice, full public access to key decisions, and opportunities for early and continuing involvement." 23 CFR § 450.212(a).

[81] N.J.S.A. § 52:27D-307 (Duties of the Council on Affordable Housing).

[82] Oregon Department of Transportation (ODOT), Oregon Transportation Plan, adopted by the Oregon Transportation Commission, September 15, 1992 (Salem: ODOT, Strategic Planning Section 1992); Minnesota Department of Transportation, Minnesota Statewide Transportation Plan, MnDOT Final Draft (St. Paul: MnDOT, January 1995). The Oregon Plan is specifically authorized by Ore. Rev. Stat. 184.618 (1993). The Minnesota Plan is authorized by Minn. Stat. 174.03 (1994).

[83] See, e.g., Ohio Rev. Code § 3734.50 (state solid waste management plan) (1995); Ind. Stat. Ann. § 13-9.5-3-1 et seq. (state solid waste management plan) (1995).

[84] The statewide planning requirements appear at 23 U.S.C.A. § 135. Federal regulations governing statewide transportation planning are contained in 23 CFR § 450.

[85] The federal statutes impose no deadline for completing a plan; however, if no deadline is imposed, the plan may never be completed.

[86] Federal regulations require a minimum of 45 days for public review and comment "before procedures and any major revisions to existing procedures are adopted". 23 CFR § 450.212(f). Public involvement processes for statewide transportation planning are to be "proactive and provide complete public information, timely public notice, full public access to key decisions, and opportunities for early and continuing involvement." 23 CFR § 450.212(a).

[87] Federal regulations require that the plan "be continually evaluated and periodically updated as appropriate." 23 CFR § 450.216(e).

[88] See Scott A. Woodard, "A Strategic Approach to State Economic Development: The Colorado Experience," in Economic Development Strategies for State and Local Governments, Robert P. McGowan and Edward J. Ottensmeyer, eds (Chicago, Ill.: Nelson-Hall, 1993), 65-73; David K. Hartley, State Economic Resource Planning: Four State Examples, State Planning Series 15 (Washington, D.C.: Council of State Planning Agencies, 1977); Commonwealth of Massachusetts, Choosing to Compete: A Statewide Strategy for Job Creation and Economic Growth (Boston, Mass.: Executive Office of Economic Affairs, May 1993); and Minnesota Department of Trade and Economic Development, Economic Blueprint (St. Paul, Minn.: The Department, November 1992).

[89] For examples of this type of analysis, albeit at a regional or local scale, see Mary L. McLean and Kenneth P. Voytek, Understanding Your Economy: Using Analysis to Guide Local Strategic Planning (Chicago, Ill.: APA Planners Press, 1992); Edward J. Blakely, Planning Local Economic Development: Theory and Practice, 2d edition (Thousand Oaks, CA: Sage, 1994).

[90] See, e.g., 20 ILCS § 605/46.44 (1993) describing the requirements for an "economic development strategy" for the state to be prepared and regularly updated by the Illinois Department of Commerce and Community Affairs.

[91] Portions of this Commentary and the model statute that follows are based on "Creating Effective State and Local Telecommunications Plans, Regulations, and Networks: Models and Recommendations" by Barbara Becker, AICP, and Susan Bradbury, in Modernizing State Planning Statutes: The Growing Smart Working Papers, Vol. 2, Planning Advisory Service Report No. 480/481 (Chicago: American Planning Association, September 1998). The preparation of the working paper, the commentary, and the model statute was supported by a grant from the Siemens Corporation. See also the commentary to Section 7-206.1, the telecommunications component of a community facilities element of a local comprehensive plan.

[92] Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56 (1996). The Act can also be found on the Federal Communications Commission website: www.fcc.gov/telecom.html.

[93] 47 U.S.C. § 151 et seq. (1997).

[94] MCI v. AT&T, 708 F.2d 1081 (7th Cir. 1982), cert den'd 464 U.S. 891; U.S. v. AT&T, 552 F.Supp. 131 (D.D.C. 1982), aff'd sub nom Maryland v. U.S., 460 U.S. 1001 (1983); U.S. v. Western Electric, 569 F. Supp. 990 (D.D.C. 1983).

[95] Vt. Stat., tit. 30, § 202d (1997).

[96] Id.

[97] Alaska Stat. § 44.19.504 (1997).

[98] Governor's Telecommunications Policy Coordination Task Force, Telecommunications Infrastructure in Washington State (Olympia, Wash.: The Task Force, Office of the Governor, April 1996), www.wa.gov/ttf.

[99] Governor's Telecommunications Policy Coordination Task Force, Telecommunications in Washington State: Implementing the Telecommunications Act of 1996 and Tax Alternatives (Olympia, Wash.: The Task Force, Office of the Governor, January 1997), www.wa.gov/ttf.

[100] Ga. Code Ann. § 50-5-160 et seq. (1997).

[101] The universal services fund receives its income from fines and penalties on common carriers. Ga. Code Ann. § 50-5-163.

[102] www.icn.ia.us/

[103] www.ncih.net/nciin.html/

[104] Cal. Codes Ann., Health and Safety Code, § § 50450 to 50452 (1986 and Pamp. Supp. 1995) (Statewide housing plan); Ga. Code Ann. § 8-3-171 (1994) (State housing goal report); Ore. Rev. Stat. § 456.572 (1993) (State housing plan); and Wa. Rev. Code. Ann. § 43.185B.040 (1995 Pamp. Supp.) (Housing advisory plan).

[105] For an overview of state housing initiatives that examines the growth of state housing programs, including tax exempt financing and the delegation of federal housing subsidies, see Peter W. Salsich, Jr., "Urban Housing: A Strategic Role for the States," Yale Law and Policy Review 12 (1994): 93, appearing in Stuart L. Deutsch and A. Dan Tarlock, eds., Land Use and Environment Law Review — 1995 (Deerfield, Ill: Clark Boardman Callaghan, 1995), 191. Salsich contends that "[s]tate planning programs that fully assess housing trends and needs on a broader base than local plans are critical components of an effective national housing strategy. Housing markets vary from state to state, as well as within areas of particular states. Because of the dynamics of these markets, assessments of housing needs tend to be more accurate if they are made from a perspective that is broader than a local perspective but narrower than a national one." Id., 227-228.

[106] "Affordable housing" is defined in Section 4-208.3 (Model Balanced and Affordable Housing Act) of the Legislative Guidebook as: "[H]ousing that has a sales price or rental amount that is within the means of a household that may occupy middle-, moderate-, low-, or very low-income housing, . . .. In the case of dwelling units for sale, housing that is affordable means housing in which mortgage, amortization, taxes, insurance, and condominium or association fees, if any, constitute no more than [28] percent of such gross annual household income for a household of the size which may occupy the unit in question. In the case of dwelling units for rent, housing that is affordable means housing for which the rent and utilities constitute no more than [30] percent of such gross annual household income for a household of the size which may occupy the unit in question." For definitions of other categories of housing by income group, see Section 4-208.3.

[107] The households most commonly identified as requiring "special needs" programs include the elderly, the physically and mentally disabled, single heads of households, large families, farm workers and migrant laborers, and the homeless.

[108] The report of the U.S. Advisory Commission on Regulatory Barriers to Affordable Housing, "Not in My Back Yard" Removing Barriers to Affordable Housing (Washington, D.C.: U.S.G.P.O, 1991) recommended that "each [s]tate undertake an ongoing action program of regulatory barrier removal and reform at the state and local levels." Id., at 7-6.

[109] See generally David Rosen, Housing Trust Funds, Planning Advisory Service Report No. 406 (Chicago: American Planning Association, December 1987).

[110] For an excellent review of these statutes and programs, see Robert Burchell, David Listokin, and Arlene Pashman, Regional Housing Opportunities for Lower Income Households: An Analysis of Affordable Housing and Regional Mobility Strategies, prepared for the U.S. Department of Housing and Urban Development (New Brunswick, N.J.: Center for Urban Policy Research, March 1, 1994)) (discussing regionally and locally-initiated programs as well as those administered by states); John Charles Bogen, "Toward Ending Residential Segregation: A Fair Share Proposal for the Next Reconstruction," N.C. L. Rev. 7 (1993), 1573, 1590-1601 (discussing California, New Jersey, Connecticut, Massachusetts, and Oregon); Peter Salsich, Jr., "Urban Housing: A Strategic Role for the States," Yale Law and Policy Review 12 (1994): 94, reprinted in Land Use and Environment Law Review 1995, Stuart L. Deutsch and A. Dan Tarlock, eds (Deerfield, Il.: Clark Boardman Callaghan, 1995), 191, 203-209. Professor Salsich notes that "at least seventeen states have enacted legislation encouraging or requiring local governments to engage in formal land use planning that includes affordable housing development as an essential element." Id., 203. Salsich provides, at 203, n. 58, a complete list of state planning statutes that require or encourage local housing elements. Local housing planning will be addressed in Chapter 7, Local Planning, of the Legislative Guidebook.

[111] See N.J.S.A. § 52:27D-312 (regional contribution agreements) and N.J.A.C. § 5:93-6 (regional contribution agreements). The current amount, as of 1995, is at least $20,000 per unit. N.J.A.C. § 5:93-6.4(b). A model regional contribution agreement appears in 5 N.J.A.C., Ch. 93, App. H.

California planning statutes contain a variant on the regional contribution agreement. They authorize a city or county to transfer a percentage of its share of the regional housing needs to another city or county under certain circumstances. These include in part: (1) that the receiving and transferring city and/or county have adopted a housing element in substantial compliance with statutory requirements; (2) that the transfer does not occur more than once in a five-year housing element interval; (3) that, before a city or county may transfer a share of its regional housing needs, it must first have met, in the current or previous housing element cycle, at least 15 percent of its existing share of the region's affordable housing needs in the very low and lower-income category of income groups defined in the statute, but that in no event shall a city or county transfer more than 500 dwelling units in a housing element cycle; and (4) that the transfer shall only be between jurisdictions that are contiguously situated or between a receiving city or county that is within 10 miles of the territory of the community of the donor city or county. The statutes require adoption of certain findings by the transferring and receiving city and/or county, which are reviewed by the council of governments in the housing region or the California Department of Housing and Community Development. The California Attorney General has the authority to enforce the transfer of regional need agreement between the two local governments. Cal. Gov't. Code § 65584.5.(a). For a discussion of the California regional fair-share housing planning system, see the Note on State Planning Approaches to Promote Affordable Housing at the end of this Chapter.

[112] See Charles M. Haar, Suburbs under Siege: Race, Space, and Audacious Judges (Princeton, N.J.: Princeton University, 1996), 114-115; see also Rachel Fox, "Selling Out of Mt. Laurel: Regional Contribution Agreements in New Jersey's Fair Housing Act," Fordham Urb. L.J. 16 (1988): 535; Harold A. McDougall, "Regional Contribution Agreements: Compensation for Exclusionary Zoning," Temple L.Q. 60 (1987): 665; John Charles Boger, "Toward Ending Residential Segregation: A Fair Share Proposal for the Next Reconstruction," N.C. L. Rev. 71 (1993): 1571, 1595, n. 101.

[113] Local efforts to plan for housing, including affordable housing, are also addressed in Chapter 7, Local Planning, of the Legislative Guidebook, Section 7-207, Housing Element..

[114] This model was drafted by Peter A. Buchsbaum, a partner in the law firm of Greenbaum, Rowe, Smith, Ravin, and Davis, in Woodbridge, New Jersey, Harvey S. Moskowitz, AICP/PP, a partner in the professional planning consulting firm of Moskowitz, Heyer, and Gruel, in Florham Park, New Jersey, and Stuart Meck, AICP/PP, Principal Investigator, and Michelle J. Zimet, AICP, attorney and Senior Research Fellow, both of the Growing Smart project.

[115] For sources of definitions for low-, moderate- and very low-income households, see 24 CFR § 91.5 (Definitions) and 5 N.J.A.C. § 5:93-1.3.

[116] See Section 6-201(5)(e), Alternative 2, of the Legislative Guidebook, which describes the components of a regional comprehensive plan, including a regional fair-share housing allocation plan. The definition of a regional fair-share allocation plan would only need to be included if the approach selected gives the responsibility of preparing the regional fair-share allocations to a regional planning agency.

[117] For an example of a state-level policy that links the award of discretionary state funds with local government housing policies, see Commonwealth of Massachusetts, Executive Order No. 215, "Disbursement of State Development Assistance" (March 15, 1982).

[118] For an example of language granting authority to a state planning agency to issue rules and orders, see Section 4-103 of the Legislative Guidebook.

[119] For an example of housing need projections, see 5 N.J.A.C., Ch. 93, App. A (Methodology); see also David Listokin, Fair Share Housing Allocation (New Brunswick, N.J.: Center for Urban Policy Research, 1976), 48-51.

[120] These factors are only intended to be illustrative. Compare Cal. Gov't. Code, § 65584(a) (Regional housing needs), where the factors are included in the statute, with N.J.S.A. § 52:27D-307(c)(2) (discussion of adjustment of present and prospective regional fair share). The allocation formulas must be tailored to each state. For an example of an allocation formula that is the result of rule making by a state agency, see N.J.A.C. § 5:93-2.1 et seq. (Municipal determination of present and prospective Need) and Appendix A. See also David Listokin, Fair Share Housing Allocation (New Brunswick, N.J.: Center for Urban Policy Research, 1976) for an early survey of allocation formulas.

[121] Projecting the growth and location of moderate- and low-wage jobs is an important factor in assessing the need and approximate location for low- and moderate-income housing.

[122] It is important that an allocation strategy and a local housing element seek spatial dispersion of low- and moderate-income housing opportunities since they should not add to the concentration of the poor.

[123] See Section 6-201, Preparation of Regional Comprehensive Plan, Alternative 2, of the Legislative Guidebook for a treatment of urban growth area designation.

[124] See Section 5-201 et seq. of the Legislative Guidebook, which addresses areas of critical state concern.

[125] See Section 6-201, Preparation of Regional Comprehensive Plan, Alternative 2, of the Legislative Guidebook for a treatment of urban growth area designation.

[126] See Section 5-201 et seq. of the Legislative Guidebook, which addresses areas of critical state concern.

[127] Alternatively, the regional fair-share allocation plan may be publicly reviewed in the manner proposed in Section 6-301, Public Workshops and Hearings, and adopted in the manner proposed in Section 6-303, Adoption of Regional Plans.

[128] Section 6-105 pertains to rule-making authority by the regional planning agency.

[129] For an interesting and creative statute providing financial incentives to local governments for removing barriers to low- and moderate-income housing (as well as middle-income housing), see Fla. Stat. § 420.907 et seq. (1995) (State housing incentives partnership), esp. § 420.9076 (Adoption of affordable housing incentive plans; committees).

[130] While a local government may not want to designate specific sites for low- and moderate-income housing, it is nonetheless important to designate a sufficient supply of sites zoned at appropriate densities to assure an open, competitive land market.

[131] Affordability controls may also be supplemented with other direct subsidies such as low interest loans to assist a homebuyer in making a down payment on a dwelling unit. Such a loan would be short term, such as five years, and would be recaptured in order to assist other future homebuyers of low- and moderate-income units.

[132] If none of these conditions are present, then presumably the developer is operating outside of the local government's affordable housing program provided for under the Act. The developer would therefore not need any of the incentives or subsidies offered by the local government or other agencies.

[133] A model deed restriction and lien for low- and moderate-income housing appears in 5 N.J.A.C., Ch. 93, App. I.

[134] This model statute was drafted by Peter A. Buchsbaum, a partner in the law firm of Greenbaum, Rowe, Smith, Ravin, and Davis in Woodbridge, New Jersey, with additional drafting and material by Stuart Meck, AICP, Principal Investigator, and Michelle J. Zimet, AICP, Attorney and Senior Research Fellow, for the Growing Smart project.

[135] The text of this model is drawn from Conn. Gen. Stat. Ann. § 8-30g; Mass. Gen. Laws Title 40B § § 20 to 23; and Gen. Laws of R.I. § § 43-53-1 to 53-8. These statutes, based on the original 1969 Massachusetts Affordable Housing Appeals Act, St. 1969, c. 774, resemble each other.

[136] For an excellent example of a deed restriction based on years of successful experience in New Jersey, see 5 N.J.A.C., Ch.93, App. I, which contains the deed restriction for low- and moderate-income housing required by the State Council on Affordable Housing.

[137] Mt. Laurel II, 456 A.2d 390 at n.37.

[138] In some states where there a greater stratification of income and housing, a fourth category may be included entitled "middle-income" that would be defined as households with a gross household income that is greater than 80 percent but does not exceed 95 to 120 percent of the median gross household income for households of the same size within the county or metropolitan area in which the housing is located. See, e.g., 24 CFR § 91.5 (Definition s— "Middle-income family").

[139] For an existing statutory definition of "infeasible," see R.I. Gen. Laws § 45-53.4(c), which provides:

"Infeasible" means any condition brought about by any single factor or combination of factors, as a result of limitations imposed on the development by conditions attached to the zoning approval, to the extent that it makes it impossible for a public agency, nonprofit organization, or limited equity housing cooperative to proceed in building or operating low or moderate income housing without financial loss, within the limitations set by the subsidizing agency of government, on the size or character of the development, on the amount or nature of the subsidy, or on the tenants, rentals, and income permissible, and without substantially changing the rent levels and unit sizes proposed by the public agency, nonprofit organization, or limited equity housing cooperative.

[140] See Conn. Gen. Stat. Ann. § 8-30g(c).

[141] See, e.g., Field v. Franklin Twp., 204 N.J. Super. 445, 449 A.2d 251 (1985).

[142] R.I. Gen. Stat. § 45-53-7 provides the following board makeup:

Housing Appeals Board — (a) There shall be within the state a housing appeals board consisting of nine (9) members:

Housing Appeals Board

Represent: Appointed By:
1 district court judge (chair) Chief of district court
1 local zoning board member Speaker of the house
1 local planning board member Majority leader of senate
2 city and town council members Speaker of the house
(plus an alternate) — representing Majority leader of senate
municipalities of various sizes (Governor)
1 affordable housing developer Governor
1 affordable housing advocate Governor
1 director of statewide planning or designee Self-appointed
1 director of Rhode Island housing or designee Self-appointed

(b) All appointed [sic] shall be for two (2) year terms, provided, however, the initial terms of members appointed by the speaker of the house and majority leader shall be for a period of one year. A member shall receive no compensation for his or her services, but shall be reimbursed by the state for all reasonable expenses actually and necessarily incurred in the performance of his or her official duties. The board shall hear all petitions for review filed under § 45-53-5, and shall conduct all hearings in accordance with the rules and regulations established by the chair. Rhode Island housing [sic] shall provide such space, and such clerical and other assistance, as the board may require.

[143] Portions of this Section pertaining to the form of the notice and submission of written and oral comments and recommendations have been adapted from the ALI, A Model Land Development Code, § 2-305.

[144] ALI, A Model Land Development Code, Note to § 8-406, 351.

[145] Ind. Stat. Ann § 13-9.5-3-2 (Adoption and implementation of state solid waste management plan) (1994); Ohio Rev. Code § 3734.50 (State solid waste management plan; adoption by director of environmental protection) (1995); Minn. Stat. Ann. § § 174.01 to 174.03 (Statewide transportation plan) (1986 and 1995 Supp).

[146] This section is an adaptation of § 8-406(2), ALI, A Model Land Development Code, 350 (Adoption of State Land Development Plan).

[147] This alternative is derived from Conn. Gen. Stat. Ann. § 16a-31 (1995 Supp.).

[148] This alternative is derived in part from Fla. Stat. Ann. § 186.007 (1995 Supp.), the ALI Model Land Development Code § 12-203, and Council of State Governments, "Comprehensive Planning and Land-Use Regulation Act," in Suggested State Legislation 1990, 49 (Lexington, Ky.: The Council, 1990), 9-28.

[149] Texas Code Ann., Gov. Code, Tit. 10, Ch. 2057 (1995 Supp.); Md. Code Ann, State Finance and Procurement, § § 3-601 to 3-607 (1995); N.J.S.A. § § 40:55D-29 to 40:55D-31 (1995). For a good example of a state capital budget document, see State of Mississippi, The Governor's Five-Year Mississippi Capital Improvement Program, Fiscal Years 1991-1995, submitted by Ray Mabus, Governor (Jackson, Miss: Department of Finance and Administration, January 1, 1990).

[150] Md. Code Ann., State Fin. and Procurement (1999), § § 5-B-01 et seq.; for a critique of this act, see Douglas Porter, "Maryland's Smart Growth" Program: An Evaluation of Recommendations, PAS Memo (American Planning Association, August 1999), 1-4.

[151] Ore. Rev. Stat., Ch. 197 (1994).

[152] See Arnold Cogan, "Implementing SB100 — Getting Started" (unpublished manuscript, 1994). The first director of the Oregon Department of Land Conservation and Development, Cogan describes the process of reaching statewide agreement on planning goals.

[153] For a discussion of such organizations, see Judith Getzels, Peter Elliot, and Frank Beal, Private Planning in the Public Interest: A Study of Approaches to Urban Problem Solving by Nonprofit Organizations (Chicago: American Society of Planning Officials, October 1975), 66-77 (discussion of Regional Plan Association CHOICES '76 program for the tri-state metropolitan area surrounding New York City); and Bruce T. Levi and Larry Spears, "Public Policy Consensus Building: Connecting to Change for Capturing the Future," North Dakota L. Rev. 70 (1994): 311-351 (describing work of North Dakota Consensus Council).

[154] Since the California statutes are not strictly vertical (i.e., state-regional-local, the term "quasi" is used). For a critique and analysis of the California housing planning statutes, see Ben Field, "Why Our Fair Share Housing Laws Fail," in Santa Clara L. Rev. 34, no. 1 (1993), 35, in Land Use and Environment Law Review 1995, Stuart W. Deutsch and A. Dan Tarlock, eds. (Deerfield, Il.: Clark Boardman Callaghan, 1995), 145. This summary is adapted from Field's analysis, at 148-152.

[155] Cal. Gov't. Code § 65302 (1987 and Supp. 1995).

[156] Id. § 65583.

[157] Id. § 65584(a).

[158] Id.

[159] Id. § 65584(c).

[160] Id., § 65583((a)(1) (providing that "[t]hese existing and projected needs shall include the locality's share of the regional housing need in accordance with Section 65584" of the Cal.

[161] Id., § 65583(c)(1).

[162] Id., § 65588(b).

[163] Id., § § 65585(b) to (e).

[164] Id., § 65585(f).

[165] Id., § 65585(g).

[166] Cal. Gov't. Code, § § 65587(b) and (c). For a discussion of problems in obtaining judicial enforcement under the "substantially complies" standard of compliance in the statute, as well as other obstacles, see Field, "Why our Fair Share Housing Laws Fail," 157-171.

[167] Id., 164-171.

[168] Id., 155, citing California Coalition for Rural Housing, Local Progress in Meeting the Low Income Housing Challenge: A Survey of California Communities Low Income Housing Production (1989), 1, 3, and 4.

[169] Burchell, Listokin, and Pashman, Regional Housing Opportunities, 77.

[170] U.S. Advisory Commission on Intergovernmental Relations (ACIR), ACIR Legislation Program No. 6, Housing and Community Development (Washington, D.C.: U.S. GPO, December 1975), 137-144. The description of the ACIR legislation is taken from the model statute's summary, 138.

[171] N.J.S.A. § 52:27D-301 et seq. (1986 and Supp. 1995); see Harvey S. Moskowitz, "State and Regional Fair-Sharing Housing Planning," in Modernizing State Planning Enabling Legislation: The Growing Smart Working Papers, Vol. 1, Planning Advisory Service Report No. 462/463 (Chicago, Ill: APA Planners Press, March 1996), 153-157.

[172] Southern Burlington Co. NAACP v. Twp. of Mt Laurel, 67 N.J. 151, 336 A.2d 713, appeal dismissed and cert. denied, 423 U.S. 808, 96 S.Ct. 18, (1975).

[173] Southern Burlington Co. NAACP v. Twp. of Mt Laurel, 92 N.J. 158, 456 A.2d 390 (1983).

[174] Hills Development Co. v. Twp. of Bernards, 103 N.J. 1, 510 A.2d 621 (1986).

[175] Mt. Laurel I, 336 A.2d at 726.

[176] N.J.S.A. § 52:27D-307 (duties).

[177] Id., § 52:27D-310.

[178] Id., § 52: 27D-314.

[179] Id., § 52: 27D-314(b).

[180] Id.

[181] Mt. Laurel II, 456 A.2d at 446-50; see also N.J.S.A. § 27D-328 (Denial of builder's remedy in exclusionary zoning litigation after January 20, 1983; exception; termination).

[182] N.J.S.A. § 52:27D-317.

[183] Burchell, Listokin, and Pashman, Regional Housing Opportunities, 97. Much of the 1987-1992 activity under the Fair Housing Act, it should be noted, occurred during a severe housing recession.

[184] Mass. Gen. Laws Ch. 40B, § § 20-23 (West 1994).

[185] Conn. Gen. Stat. Ann., Ch. 126a, § 8-30(g) (1995 Cum Supp).

[186] R.I. Gen. Laws, Ch. 53, § 45-53-1 et seq. (1999).

[187] The state and federal constitutional validity of statutes in Massachusetts has been affirmed in several Massachusetts decisions. See, e.g., Mahoney v. Bd. of Appeals of Winchester, 366 Mass. 228, 316 N.E.2d 606, appeal dismissed 420 U.S. 903 (1974); Bd. of Appeals of Hanover v. Housing Appeals Committee in Dept. of Community Affairs, 363 Mass. 339, 294 N.E.2d 393 (1973).

[188] These statutes are discussed in "Housing Appeals Boards: Changing Presumptions about Affordable Housing," by Peter Salsich, Jr. in Modernizing State Planning Enabling Legislation: The Growing Smart Working Papers, Vol. 1, Planning Advisory Service Report No. 462/463 (Chicago: American Planning Association, March 1996), 159-162.

[189] Salsich, "Urban Housing," 208-209.

[190] R.I. Gen. Laws, Ch. 53, § 45-53-3(b) (1999). See Curran v. Church Community Housing Corporation, 672 A.2d 453 (R.I. 1996) (holding that where existing zoning ordinance was outdated and did not conform to town's recently adopted comprehensive plan, decision of local zoning board of review to approve application for special exception to build low-and moderate-income housing that would assist town in achieving its plan to have at least 10 percent of its housing inventory consist of low- and moderate-income units in accordance with the state's Low and Moderate Housing Act was fully justified).

[191] R.I. Gen. Laws, Ch. 53, § 45-53-6(b)(2) (1991).

[192] Burchell, Listokin, and Pashman, Regional Housing Opportunities, 129.

[193] Id., 133.

[194] Id., 136-137.

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