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Smart Growth
in New York State
2nd Annual Smart Growth Conference
May 4, 2000, Albany, New York |
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SMART GROWTH CONFERENCE HANDOUT
TABLE OF CONTENTS
This handout was prepared
for distribution by:
John R. Nolan, Director
Land Use Law Center
Pace University School of Law
78 North Broadway
White Plains, NY 10603
(914) 422-4262
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Growth ~ NASNY Home Page
Smart
Growth as a Solution to Sprawl
Sprawl is defined by the Sierra Club as "low-density
development beyond the edge of service and employment, which
separates where people live from where they shop, work, recreate,
and educate - thus requiring cars to move between zones."
The most worrisome statistic in the blizzard of negative data
regarding sprawl is that, in most metropolitan areas of the country,
as the population grows, the amount of land that is developed
to meet that demand increases by seven to ten times the rate
of population growth. In other words, the surface area covered
by development in metropolitan areas increases by about 70% to
100% to accommodate a 10% increase in population. The Sierra
Club, in a report called "The Dark Side of the American
Dream," states that "sprawl contributes to increasing
costs for public services, the declining health of central cities,
environmental degradation, loss of farmland, and degraded quality
of life." In the New York metropolitan area, the specific
complaints of city mayors, town supervisors, property taxpayers,
and environmentalists parallel this general observation.
In defense of current land development patterns, the National
Association of Home Builders (NAHB) counters that most Americans
want to live in detached single-family houses on the urban fringe;
that population growth will increase demand for housing on the
fringe because new residential development in cities can only
accommodate 10 percent of housing needs; and that there is plenty
of land left for development, noting that only five percent of
the land mass in the U.S. is urbanized. Of great moment is the
NAHB comment that home builders are building houses and subdivisions
in suburban and semi-rural communities that conform to the standards
of local land use regulations. In most of the New York metropolitan
area, this observation is correct.
"Smart Growth" has replaced "Growth Management"
as the current prescription for the cure of suburban sprawl and
its multiple evils. Both recommend various means of identifying
growth areas and concentrating new commercial and residential
developments within such areas. In most states, land use decisions
of this type are made primarily by local governments and the
difficult political issue is how to encourage or require local
governments to draw the boundaries of growth and conservation
areas and then enact regulations that encourage greater density
development within growth areas and other regulations that greatly
limit new development in conservation areas.
Local Implementation
of Smart Growth -
An Example of Efficient Land Development
This article begins with an analysis of the mechanisms local
governments in New York can use to combat sprawl and to foster
development patterns that limit the land consumed by the housing
and commercial development demanded by population growth and
shifts. This analysis is based on an examination of the conventional
mechanisms used that induce sprawl and one set of creative alternative
mechanisms that has been employed to create more compact and
conserving development patterns. This is done by evaluating the
underlying zoning and subdivision laws of the Village of Pawling,
New York, which are fairly typical of the techniques used on
the urban fringe, and an optional set of regulations adopted
by the same village to encourage a "smarter" pattern
of land use.
Pawling is located in the southeastern corner of Dutchess
County on the Connecticut border about two hours north of New
York City by train. Its 2,000 residents live in a community that
is located in a vast watershed area known as the Great Swamp.
The community is intersected by the north-south Route 22 transportation
corridor and the Appalachian Trail which runs east and west along
its northern border. In 1990, the village began a planning process
that led to the adoption of a new comprehensive plan and a zoning
ordinance that contains conventional zoning provisions, as well
as incentives and other provisions enacted to concentrate future
development in carefully designed, more compact neighborhoods.
The differences between these conventional and innovative mechanisms
represents two competing paradigms of local land use regulation.
Its conventional approach induces sprawl and illustrates the
blueprint for development that the NAHB says home builders typically
are required to follow. Its innovative devices demonstrate how
local governments can regulate land use in line with "smart
growth" principles.
Traditional
Zoning
Pawling's village board of trustees enacted a zoning ordinance
and map that separates the community into seven zoning districts,
four residential, two business, and one industrial. Over 70%
of the community is zoned R1 which allows single-family residences
to be built on lots at least one acre in size. The central business
district is zoned B1 which allows mixed use commercial and residential
development including multifamily housing. This district is surrounded
by relatively small areas that are zoned for single family residences
on lots ranging from one-quarter acre in size to three-quarters
of an acre. In B2 zones along the Route 22 corridor, warehouse,
manufacturing, and other high intensity uses are allowed along
with more traditional commercial, office, and retail activities.
There is one industrial zone, I1, located in the northern part
of the village along the railroad tracks.
This conventional zoning pattern is supplemented by a conventional
approach to regulating the subdivision of land for residential
development. The village board has adopted a standard set of
subdivision regulations that regulates subdivisions of more than
three lots. Authority to review and approve residential subdivisions
is delegated to the village planning board as it is in most suburban
and semi-rural towns and villages. The primary purposes of such
subdivision regulations is to insure adequate provisions for
vehicular circulation, adequate provision of utilities and other
services, and to prevent damage or peril to surrounding properties.
The zoning provisions in the 70% of the village zoned R1 require
minimum lot sizes of 40,000 square feet, minimum front lot widths
of 150 feet, front yard depths of at least 50 feet, rear yards
of 60 feet or more, and side yards totaling at least 70 feet
in the aggregate. The subdivision regulations add further "design"
standards for residential developments in the village. Collector
roads must have 60 foot wide rights of way and 32 feet of pavement
and minor roads must have 50 foot rights of way and 20 feet of
pavement. These regulations add that the side lines of each lot
must be at right angles to the street lines.
These physical requirements give the planning board, the village
board, and land developers very little leeway in subdivision
design, lot layouts, or the placement of buildings on the lot.
They create a pattern of land development remarkable in its sameness,
leading many to call such developments "cookie cutter"
subdivisions. Such regulations separate retail and commercial
uses from homes so that distances are not walkable, provide wide
thoroughfares for the rapid movement of cars which discourages
pedestrian and bicycle movement, create relatively high cost
homes on expensive tracts of land, and spread the development
allowed over the entire terrain contained in a proposed subdivision.
In these conventional zoning and subdivision regulations can
be seen the blueprint for sprawl. Smart growth advocates say
that sprawl can be curtailed by concentrating needed new development
into designated development districts. Obviously, the type of
land development created by conventional zoning and subdivision
regulations will not satisfy much of the new demand for housing
and places to work and shop if it is simply to be confined to
discrete land masses. A denser blueprint Is needed, one that
is more cost-effective and environmentally conserving, and that
creates a favorable quality of life.
Smart Growth
Zoning
The new urbanists, sometimes called neo-traditionalists, call
for zoning and land use regulations that allow traditional urban
neighborhoods to be created. They point out that, under conventional
zoning and subdivision laws, most of the traditional neighborhoods
found in urban areas can no longer be replicated. The corner
drug store or deli in a residential neighborhood is not allowed,
apartments cannot exist above stores, and houses cannot be built
close to the sidewalk with cars parked in garages in the rear
that front on alleys which kids use as playgrounds. If cookie
cutter subdivisions are the result of standards contained in
zoning and subdivision ordinances, why can't such regulations
be modified to create different, more flexible neighborhoods?
Neo-traditionalists and many smart growth advocates argue
that a new type of land development pattern is needed, one that
is more concentrated and that creates a quality of neighborhood
that consumers feel comfortable living in. One such approach
is to create mixed use neighborhoods where housing types are
varied, retail and commercial services available within walking
distance of where most residents live, public green space is
provided, visual and recreational amenities exist nearby, and
where pedestrian and bicycle travel is actively encouraged. Houses
in such a neighborhood district can be allowed on smaller lots,
retail and commercial uses can be mixed with residential, a variety
of housing types can be allowed, and accessible open space created
and dedicated to the use of all the neighbors.
The Village of Pawling has adopted a set of "urban regulations"
and a number of other mechanisms that encourage some of these
aspects of neo-traditional neighborhood design. The Village has
used statutory authority delegated to it and all other local
governments in New York in doing so. It began by amending its
comprehensive plan to call for more concentrated land patterns
with dedicated open space, a network of trails, a regional green
space network, and residential developments that are fitted around
a revitalized central business district. The plan also identifies
four large tracts of property located in R1 zones and contains
conceptual development plans for those tracts, an unusual device
to be found in a comprehensive plan in New York. These site specific
conceptual plans increase the number of residential units allowed
on each tract, place this greater number of houses allowed on
smaller lots, require the dedication of significant amounts of
open space to the public, link this open space to trails and
other open spaces and parks, and avoid development of the wetlands
and steep slopes on the sites. The plans also call for through
streets rather than the dead end cul de sacs typical of development
in the area. The specific purpose of interconnected streets is
to encourage pedestrian and bicycle traffic in the residential
neighborhoods created. Only one of the four conceptual plans,
with frontage on Route 22, contains any commercial land uses.
For these conceptual plans to be meaningful, the zoning law
of the Village had to be amended. This was accomplished in 1995
with the adoption of a new zoning code. It contains a schedule
of "urban regulations" which provide for six building
types that are now allowed in designated zoning districts. (Pawling
zoning law § 98-13 and Schedule B.) The urban regulations
differ fundamentally from conventional zoning in that they use
detailed illustrations to provide for alternative lot layouts,
building designs, setbacks, and the location of parking; these
give the planning board the type of control over the design of
development that is missing in conventional zoning, subdivision,
and site plan laws.
"Infill houses" are allowed under these urban regulations,
for example, in all four residential districts. Occupancy is
limited to residential use, parking is provided on the rear of
the lots, space for alleys is provided, front and side yard set
backs are reduced, and balconies, stoops, chimneys, porches and
bay windows are allowed to encroach on the smaller front and
side yards adjacent to the street. "Small houses" are
allowed under similar provisions in all four residential zones.
"Townhouses" are allowed in all residential districts.
They are permitted to be built to the lot lines on lots not adjacent
to streets and to share party walls, with parking in the rear,
alleyways and stoops are required and porches and breezeways
are allowed.
These types of provisions now allow great flexibility on the
part of land developers and the planning board in the village
as new development is proposed and reviewed in residential districts.
Force is given to the urban regulations by a provision in the
zoning law that gives them precedence, when they apply, over
the traditional standards of the bulk schedule. (Pawling zoning
law § 98-13) They apply, according to the code, to all subdivisions
of more than three lots. (Id.)
With regard to the four large tracts that are conceptually
designed in the revised comprehensive plan, the zoning code also
implements the objectives of the comprehensive plan. The new
zoning provides a density bonus of 30% for any new subdivision
proposed on the subject parcels that meets the design guidelines
for the tract contained in the comprehensive plan, that conforms
to the open space configuration and trail system in the comprehensive
plan, that guarantees the affordability of 15% of the dwelling
units, and that is connected to the village water and sewer system.
It is the obvious intent of the village board to induce developers
of residential property on these four critical sites to follow
the detailed design guidelines of the comprehensive plan by providing
a significant amount of additional housing by the means of incentive
zoning, now allowed under Village Law § 7-703, Town Law
§ 261-b, and General City Law § 81- d, adopted in 1992
by the state legislature.
Streamlining
Development
Streamlining of development proposals that conform with the
urban regulations and the conceptual drawings found in the comprehensive
plan is offered as an additional incentive to land developers.
Since generic environmental impact statements were completed
on the adoption of the plan and the zoning law, it is only necessary
for such an applicant to prepare and submit an supplemental Environmental
Impact Statement. (Pawling zoning law § 98-84) Development
proposals that do not follow these regulations and plans will
be subject to a more intensive and lengthy review process which
developers are particularly keen to avoid.
In these novel provisions, the Village of Pawling has taken
an important step toward smart growth and away from sprawl. The
comprehensive plan was developed with significant input from
all interest groups in the village. It is obvious from the results
that greater control of the details of the design of development,
more intelligent layouts of subdivisions, more affordability
and diversity of housing, and greater coordination of the interconnections
of developments in the village were endorsed by the citizenry
and their elected leaders. These mechanisms stop short of the
creation of growth and conservation boundaries, do not mix land
uses to any significant degree, and, of course, have nothing
to do with what happens in the critically situated adjacent communities.
As an incremental move forward, however, it bears further study
and watching.
The
Other Factor in Smart Growth Equation - Open Space Preservation
The Pawling example illustrates why local action is fundamental
to the success of smart growth in New York. This is due to the
significant authority that local governments have been given
to determine where and how privately-owned land is developed
and where it is to be conserved. The traditional neighborhood
zoning district in the Village of Pawling that created a neo-traditional
development zone that allowed mixed uses at an appropriate density
represents one side of the smart growth equation, illustrating
that local regulation can properly direct development to a discrete
location in a cost-effective manner. This section addresses the
other side of the equation - local actions that maintain some
of the open lands that are threatened by land development pressures
in growth areas of the state.
The preservation of open lands is one of the few land use
objectives that is found in the State Constitution. It is the
policy of New York State to "conserve and protect [the]
natural resources and scenic beauty [of the state] and encourage
the development and improvement of . . . agricultural lands for
the production of food and other agricultural products."
(Article 14, § 4.) The State Legislature has enacted several
statutes that delegate to local governments the authority to
protect local natural resources and agricultural lands. Under
Village Law § 7-704, Town Law § 263, and General City
Law § 20(25) zoning regulations may be adopted with reasonable
consideration of the character of the zoning district and with
a view to encouraging the most appropriate use of the land. Local
comprehensive plans can identify and provide for the preservation
of "natural resources and sensitive environmental areas."
Village Law § 7-722(3)(d), Town Law § 272-a(3)(d),
and General City Law § 28-a(4)(d). The Municipal Home Rule
Law § 10(1)( ii)(a)(11) authorizes each local government
to adopt land use laws "for the protection and enhancement
of its physical and visual environment."
Using this authority, local governments have enacted a wide variety
of natural resource protection statutes that protect, inter alia,
wetlands, habitat, trees, landscape features, soils, floodplains,
ridgelines, view sheds, aquifers, and watersheds. Recently, the
Town of Mamaroneck added a strategic approach to open land preservation
when it rezoned nearly 450 acres for exclusive recreational use.
This curious invention was challenged as a "regulatory taking"
by a syndicate that owned the Bonnie Briar golf course since
it prevented a residential development that it had submitted
for the Town's land use approval. After several years of litigation,
the Court of Appeals recently sustained the municipality's rezoning.
Bonnie Briar Syndicate, Inc. v. Town of Mamaroneck, November
23, 1999.
Bonnie Briar
Case
The syndicate did not demonstrate that the rezoning denied
an economic use of its land. Rather, it argued that the Town's
denial of its residential development proposal - which left 75%
of the land open as a golf course - was a violation of its substantive
due process rights. It suggested that, where a generally applicable
rezoning law is contested, the proper test is that the rezoning
must bear an "essential nexus" to a legitimate public
objective. When this test is used in takings cases, the court
more closely scrutinizes the relationship between the land use
regulation and the legitimate public purpose for which it is
enacted. The plaintiff argued that its proposal constituted a
less restrictive, more reasonable method of accomplishing the
municipality's admittedly legitimate environmental objectives.
The New York court cited the recent City of Monterey v. Del
Monte Dunes at Monterey, Ltd. (119 S. St. 1624, 1999) decision
of the U.S. Supreme Court for the proposition that this stricter
test is applicable only to situations where the local land use
action constitutes an exaction, such as requiring a public access
easement over private property as a condition of a land use approval.
The Court noted that the test to be used where generally applicable
regulations are challenged is whether the regulation "bears
a reasonable relationship" to a legitimate public objective.
It had no trouble finding that restricting 428 acres of private
golf courses to exclusively recreational uses was reasonably
related to the public objective of preventing flooding, maintaining
a critical natural resource area, and preserving the open space
character of a highly urbanized area.
The Court of Appeals reminded the plaintiffs that its role
in such cases is not to question the general wisdom or desirability
of land use regulations of this type, that is the prerogative
of the local legislature. The unanimous court wrote "It
is similarly not for this court to determine if, in regulating
land use, the rezoning determination was more stringent than
one might reasonably conclude was necessary to further public
objectives." In April of 2000, the U.S. Supreme Court denied
the landowners petition to review this decision, making it the
final word on this important subject.
Four factors existed in the Bonnie Briar case that should be
carefully examined by other communities before they rezone significant
acreage for recreational use. First, Mamaroneck preceded the
rezoning with ten years of very careful data collection and comprehensive
planning on which the rezoning was based. Second, this study
documented that the lands rezoned were subject to serious environmental
constraints, not the least of which was flooding. Third, the
land was already dedicated to an apparently economic recreational
use. Fourth, the rezoned properties are located in a heavily
populated, affluent area where with a demonstrable demand for
private recreational services and facilities.
The Acquisition
Alternative
An alternative to taking the regulatory approach to the conservation
side of the smart growth equation is to use local authority to
purchase open lands. Local governments are authorized to spend
public funds to acquire and maintain open spaces and to limit
the future use of open spaces under the General Municipal Law
§ 247. Open space is defined by this section as land characterized
by natural scenic beauty, lands whose condition enhances surrounding
developed lands, lands containing valuable natural resources,
and lands used for agricultural production. Local governments
using public funds to acquire such lands may either purchase
the lands outright or purchase some or all of their development
rights. To purchase a lesser interest of this type, the local
government typically purchases a restrictive covenant or "conservation
easement" from the landowner which limits the parcel's development
and then pays the landowner the value of the development rights
that have been conveyed to the municipality. When public funds
are used under § 247 to purchase development rights, the
local government must reassess the property's value for property
tax purposes to reflect the reduced use and value of the land
as restricted.
Under the Environmental Conservation Law (§§ 49-0301
- 49-0311), municipalities and not-for-profit conservation organizations
are empowered to purchase conservation easements for the purpose
of protecting property containing environmental, historical,
or cultural assets or agricultural soils. If conservation easements
are acquired by local governments under the Environmental Conservation
Law, a land conservation organization, or land trust, can be
assigned the responsibility of monitoring and enforcing the development
restrictions placed on the land.
Using this authority local governments have established programs
that combine the purchase of full title to open lands, the purchase
of all development rights not currently used by the landowner,
and the lease or purchase of less than all of the development
rights, allowing landowners the option of developing part of
the land presently or in the future. A variety of local programs
can be created to meet the public interests of the locality and
the financial needs of particular landowners.
Methods and
Examples of Acquiring Interests in Open Lands
Direct appropriations: Localities may appropriate revenues
derived from local property taxes to acquire interests in open
lands as part of the local budgeting process. Municipalities
may ask their voters to approve a multi-year appropriation of
a specified increase in the local property tax rate for the purpose
of acquiring interests in open lands. In 1997, for example, voters
in Greenburgh approved the creation of a multi-year property
tax increase of ½ of one percent to be deposited in a
capital reserve fund and used for the acquisition of interests
in open lands. The Town projects that this tax increase will
raise up to $750,000 over its six year life. The Town Supervisor's
plan is to use this resource as a means of leveraging additional
county, state, and federal funds for open land acquisition.
Issuance of municipal bonds: Municipal bonds may be issued
and the proceeds used for the acquisition of interests in open
lands. Voters in the Town of Pittsford approved a $9.9 million
bond issue to purchase development rights to 2,000 acres of mostly
agricultural land located so that a wildlife habitat corridor
was created linking important ecological resources with the town's
remaining historic farms. Since 1974, Suffolk County has issued
bonds on three separate occasions that have raised over $60 million
that is being used to purchase development rights in farm lands.
Real estate transfer tax: A local government may pass a local
law requesting the State Legislature to adopt a bill authorizing
it to impose a tax on the transfer of title to real property
within its jurisdiction. At the request of several towns on the
east end of Long Island, the State Legislature added a section
to the local finance law permitting them to impose a two percent
real estate transfer tax to purchase interests in open lands
and subjecting them to a variety of requirements regarding the
use of the proceeds of the tax. These proceeds supplement funds
raised by the communities by other means, including the issuance
of municipal bonds.
Reduced tax assessment: Local governments may lease development
rights from the owners of open lands in exchange for a reduction
in property tax assessments during the lease's term. The landowner
agrees to a limited-term lease of the land's development rights,
a conservation easement is imposed on the land for that term,
and during that term a reduced tax assessment is applied lowering
the taxes that must be paid by the owner. The Town of Perinton
in Monroe County uses a tax assessment table which establishes
various percentages of tax reduction that are applied in exchange
for the Town's lease of development rights. The amount of reduction
increases when the owner agrees to a longer lease term. A 25
year lease term, for example, earns a 90% tax reduction. Penalties
must be paid by owners who default on their lease obligations.
These revenues are placed in a capital reserve fund which is
used to purchase development rights on other open lands.
Land purchase installment obligations: Local governments may
adopt a resolution that authorizes them to incur debt by purchasing
interests in open lands directly from landowners on an installment
basis. The landowner becomes the creditor of the municipality
which now owns the land or its development rights. The value
of the interest acquired by the municipality may be paid to the
landowner over a period of up to 30 years. All interest payments
to the landowner are tax exempt. The payment of principal payments
may be deferred until the end of the installment period which
defers the payment of any capital gains tax due. Installment
purchase obligations owned by landowners can be devised to the
owner's heirs or sold to municipal bond investors. The towns
of Easthampton and Southhampton on the eastern end of Long Island
have stated that they plan to use the land purchase installment
obligation method in spending the dollars in their capital reserve
funds to acquire interests in open lands.
Smart
Growth Applications
What is intelligent about the concept of smart growth is that
it marshals growth pressures into cost effective settlement patterns
and it leaves large, unfragmented areas of the natural environment
open. Local regulation and acquisition of open lands can accomplish
this goal, but only if significant landscapes are protected by
these initiatives. In both Mamaroneck, a developed town, and
Pittsford, a developing town, this happened. Mamaroneck cleverly
preserved nearly 450 contiguous acres of open lands in a mature
suburban community. In Pittsford, local leaders studied the 3,600
acres of open lands left in the community and identified 2,000
of them that constituted a preserve containing significant wildlife
corridors that link important ecological resources with the most
significant remaining historic farms.
These examples illustrate that existing authority is capable
of accomplishing significant smart growth objectives in the hands
of capable and thoughtful local officials and their professional
advisors.
Bounded
Growth
The Village of Pawling's smart growth plans include the designation
of discrete geographical areas into which private market growth
pressures are directed. Mamaroneck's recreational zoning ordinance
designates certain areas for recreation, conservation, and environmental
protection. There are a number of techniques that local governments
may use to designate growth areas and to direct development to
them. First, we should examine whether growth should be bounded
and how local governments become involved in the designation
of growth areas.
Should growth be bounded in this way? Michael Pawlukiewicz,
who is the Urban Land Institute's Director of Environmental Land
Use Policy, endorses the notion of "compact development,"
by which he means growth that "is focussed on existing commercial
centers, new town centers, and existing or planned transportation
facilities." This, he argues, is necessary to create a sense
of community, promote economically viable development, ensure
the ease of movement and safety of residents, and preserve open
space, natural resources, and sustainable habitats. In 1979,
Portland, to comply with Oregon's innovative growth management
law, imposed a growth boundary encompassing the city and 23 surrounding
towns. Fifteen miles from city hall, outside the bounded growth
area, is the Willamette River Valley, where growth is limited
to small-scale development consistent with the predominately
agricultural use of the land. Maryland's novel smart growth spending
law directs state infrastructure improvements into settled communities
and "priority funding areas," which are growth areas
designated by county governments. A statewide coalition supporting
smart growth in New York released a set of smart growth "themes"
last year which encouraged the state to target its infrastructure
investments in "locally-designated growth areas."
Concentrating development in designated growth areas, bounded
in some specific way, is a necessary factor in the smart growth
equation. Bounded growth, however, is not a novel concept. Local
governments have traditionally drawn blueprints for growth in
the design of their zoning codes. Zoning's primary characteristic
is the creation of hard-edged districts that separate land uses
into residential, commercial, and industrial zones. Traditional
zoning districts separate land uses to advance a number of public
purposes. The architects of zoning thought that this approach
to community planning protected children in residential districts
from commercial and industrial traffic, for example, and protected
residential property values by placing noxious and inconsistent
uses in distant locations.
Perhaps we are moving into an era of "smarter growth"
where public policy encourages more compact and integrated land
uses to accomplish a number of contemporary public interests,
such as the reduction of car travel and air pollution and the
rate of consumption of farmland, natural resources, and environmentally
sensitive areas. Smart growth advocates see the designation of
areas for more compact, mixed use development as a present imperative,
a necessary change in the zoning blueprint needed to address
the concerns expressed by Pawlukiewicz and addressed by the Oregon
and Maryland growth management initiatives.
Role of Local
Government
Nationally, there has been much debate as to which level of
government should be responsible for drawing the boundaries of
designated growth districts. In Oregon, it is the state. In Maryland,
it is the county. In New York, it appears, it is the municipality.
Drafts of recently proposed smart growth bills in Albany, many
ideas circulated by statewide advocates, and the Governor's recent
Executive Order 2000-102 all call for local governments to designate
growth areas for smart growth planning purposes.
Under the Governor's Executive Order, a Quality Communities
Interagency Task Force is to "make recommendations to strengthen
the capacity of local governments to develop and implement land
use planning and community development strategies through a voluntary
program." Last session's bipartisan Hoyt-Rath bill (A. 1969-A;
S. 1367-A) declared it to be the policy of the State of New York
to "encourage more compact development," and "investment
in infrastructure in locally-designated growth areas." Separate
bills advanced by Assemblymen Brodsky and DiNapoli accepted this
grassroots approach, adding incentives and penalties geared to
creating intermunicipal compacts within which growth area development
can be planned at a larger scale. There are no current proposals
in New York suggesting that growth areas should be designated
by county, regional, or state agencies.
Authority
to Designate Growth Areas
If local governments are to design the basic blueprint for
smart growth, how should they proceed? State law provides numerous
planning tools for municipalities to use in designating growth
and conservation areas. The principal among these, of course,
is the comprehensive plan, without which, the Court of Appeals
has said, "there can be no rational allocation of land use."
(Udell v. Haas, 21 N.Y.2d 463.) State statutes suggest that local
comprehensive plans include a statement of goals and objectives
regarding the community's physical development and describe the
specific actions to be taken to provide for the long-range growth
and development of the locality. (See Town Law § 272-a,
Village Law § 7-722, and General City Law § 28-a.)
Comprehensive plans can, in fact, be quite detailed, incorporating
maps, graphs, and studies that can precisely locate designated
growth areas and spell out the techniques to be used to encourage
development in those areas. This authority is highly elastic,
and can be stretched to fit all development contexts, from urban
and suburban to rural, where communities wish to control growth.
Growth control measures, including goals, objectives, and techniques
contained in the comprehensive plan, were validated nearly thirty
years ago by the Court of Appeals in Golden v. Ramapo, 30 N.Y.2d
359.
Akin to the authority that local governments have to adopt
comprehensive plans is the power to formulate Local Waterfront
Revitalization Plans (LWRP) when the community is located in
the state's extensive coastal areas. Under the Waterfront Revitalization
and Coastal Resources Act of 1981 (N.Y. Exec. Law § 910),
a local government may adopt a LWRP covering part or all of the
community and devoted to protecting water-related assets while
providing for future land uses in the coastal zone affected by
the plan. Zoning and other land use regulations are the tools
of choice for implementing LWRPs. Under these plans, harbor development
districts, riverfront revitalization areas, and waterfront redevelopment
zones have been established - all of which are designated growth
areas.
State law permits local governments to divide the community
into zoning districts and to regulate the density of population,
the use of land, and the size, shape, and location of buildings
within each district. (See Town Law § 261, Village Law §
7-700, and General City Law § 20(24).) Although this authority
has been used in some communities to impose a grid type of development
pattern on the land, with residences separated from retail and
commercial areas, zoning itself may be used to designate a variety
of growth districts to carry out a local smart growth agenda.
Municipalities have designated large parcels of land for mixed-use
zones, planned unit development districts, planned residential
development devices, and floating zones.
The Village of Pawling has used this authority to designate
three large land areas as traditional neighborhood districts,
which provide for the development of neotraditional residential
communities. This is a step toward permitting neotraditional
neighborhoods that contain compact, pedestrian oriented, mixed-use
development and incorporate a variety of housing types within
walking distance of employment centers, retail services, and
transportation links. Under New York law, traditional neighborhood
district zoning of this type involves the use of traditional
zoning authority in a novel, but permissible, way. It is a zoning
technique for designating a growth area. The Court of Appeals
long ago endorsed these inventions when it sustained "floating
zoning" in Rodgers v. Tarrytown (302 N.Y. 115, 1951) with
the comment: "The village's zoning aim being clear, the
choice of methods to accomplish it lay with the board."
Directing
Growth to Designated Growth Areas
Once a growth area has been designated, local governments
have a long shopping list of techniques they may chose from to
direct development into such areas. One of these is to lower
the density of development and to otherwise restrict development
permitted outside the growth area. This topic is beyond the scope
of this column. Facilitating development within the area can
be accomplished by using the following devices:
- Designated Growth Districts: In a designated growth zoning
district, the density of development can be increased as a matter
of right. Municipalities can use their traditional zoning authority
to create a Designated Growth Area District with bulk, area,
and use provisions that create the type of compact development
pattern envisioned by the smart growth concept. In taking this
approach, smart growth advocates argue, the locality needs to
create a sufficient density of development to support the transportation
and transit services needed to increase pedestrian traffic and
reduce car travel.
- Bulk and Area Requirements: A designated growth zoning district
can contain bulk, area, and parking provisions that encourage
types of development that support smart growth principles. By
establishing set-back lines to require buildings to be brought
up to the sidewalk and by requiring parking and garages in the
rear, pedestrian use of streets can be encouraged and an attractive
neighborhood design created. Access to residential units and
offices can be provided through alleys on which garages or parking
spaces are located. The number of parking spaces required can
be fewer if real prospects of transit services exist. Lot sizes
can be reduced and zero lot line requirements can be introduced
to create higher residential and mixed-use densities. Design
amenities such as front porches and traditional architectural
styles can be included in the zoning provisions. Attention to
the quality of the design of buildings abutting streets can encourage
pedestrian use, which is important in encouraging the use of
transit facilities. In some parts of these designed zoning districts,
narrower streets can be specified to discourage traffic and ease
pedestrian use.
- Incentive Zoning: Significant waivers of zoning requirements
can be offered to developers, including increasing the density
of development allowed, as a method of directing larger-scale
development into designated growth areas. (Town Law § 261-b,
Village Law §7-703, and General City Law § 81-d.) Land
developers can be required to provide public amenities such as
transportation, parks, affordable housing, social service centers,
or other infrastructure in exchange for the waivers. In this
way, some of the services needed in designated growth areas can
be provided by private developers in exchange for the increased
density desired in the area.
- Special Permits: Larger-scale developments providing for
mixed uses may be approved by special permits issued by the planning
board or other administrative body. This practice has been followed
for decades by municipalities as a method of combining land uses
in designated "planned unit" or "planned residential"
zoning districts.
- Floating Zones: Large-scale developments can be permitted
by amending the zoning code to provide for a special use zone,
such as a mixed-use development district, that can be affixed
to a large parcel of land upon the application of all or a majority
of the landowners. That application, if successful, results in
the amendment of the zoning map to redistrict the subject parcels
and permit the new use.
- Generic Environmental Impact Statements: When any of these
techniques is used to create a designated growth area, a generic
environmental impact statement can be prepared that identifies
negative environmental impacts and provides for their mitigation.
When this happens, it is possible that developers of individual
projects will not be required to prepare lengthy and costly environmental
impact studies. This alone can provide a powerful incentive for
developers to concentrate their projects in designated development
areas.
- Transfer of Development Rights: State law allows New York
municipalities to establish transfer of development rights programs
that concentrate development in receiving districts and provide
for the transfer of development rights from sending districts.
In smart growth terms, the receiving district is the designated
growth area and the receiving area is a conservation or natural
resource protection area. (See Town Law § 261-a, Village
Law §7-701, and General City Law § 20-f.)
- Intermunicipal Agreements: In New York, local governments
have been given liberal legal authority to cooperate in the planning
and zoning field. (Town Law § 284, Village Law §7-741,
and General City Law § 20-g.) Through intermunicipal agreements,
they can designate shared or interlocking growth districts that
create real market opportunities and a complementary range of
housing types, retail services, office buildings, and needed
amenities. This is a particularly important technique to consider
when several communities share a transportation corridor.
Techniques
for Protecting the Designated Growth Area
One of the more practical limitations to the designation of
development areas is the likely opposition of residents in and
near the area. They will be concerned about the quality of life
in their neighborhoods, the impacts of increased density, and
the effect of new development on their property values.
To counter these predictable and reasonable fears, residents
will need to be involved in the planning process for the designated
growth area. During meetings with these residents a variety of
methods of protecting their interests can be discussed. These
include adopting landmark protection laws, creating historic
district protections, insuring the quality of the design of new
and expanded buildings, providing new parks and recreational
facilities, establishing cheaper and more convenient transportation
alternatives, and explaining the benefits of a properly functioning,
pedestrian-oriented neighborhood.
Relying
on Local Governments - A Theoretical Analysis
Most discussions of smart growth in New York assume that local
governments must play the predominate role in determining how
to balance land use and conservation. In academic circles this
is described as localism. This approach suggests that responsible
growth patterns can be achieved by enlightened local action,
which may be guided and assisted by incentives, information,
and technical assistance provided by higher levels of government.
Localism is sometimes called the bottom-up approach to land use
decision-making and is contrasted to the top-down, or command
and control, approach evident in federal pollution prevention
and clean up regimes where the federal and state governments
set standards, prescribe outcomes, and require compliance.
Those who argue that the New York State legislature should
adopt a top-down approach to land use planning and regulation
do so, in part, because they perceive a need to coordinate the
often disconnected and discordant land use decisions of local
governments. The danger in this observation is that it may target
local control as the problem to be cured, rather than the base
on which to build an intermunicipal process, that is responsive
to regional needs.
Massachusetts Senator Tip O'Neil once quipped, "all politics
are local." For advocates of a prescriptive state or regional
strategy in a strong home rule state, O'Neil's political reality
means that designing any solution to the "problem"
of municipal independence runs the risk of engendering overwhelming
political opposition. Times may have changed, but the history
of top down approaches in New York leans in the O'Neil direction.
When a state-wide land use planning act was submitted to the
state legislature in 1970, it not only failed to reach the floor,
but the agency that proposed it was disbanded by the legislature
shortly thereafter. Two years later, the state Urban Development
Corporation was stripped of its power to override town and village
zoning after it announced a proposal to build subsidized housing
in nine communities in Westchester County.
The challenge for advocates of a top-down approach to land
use planning and control is to identify effective state or regional
processes that respect the critical role that local governments
play in land use decision-making. To be politically palatable,
these solutions must not be perceived as methods of imposing
a state or regional body's will on local governments, but as
means of communicating effectively about regional and local needs,
balancing those interests, and arriving at mutually beneficial
decisions over time.
There is a significant body of thought that recommends a serious
consideration of localism, or state-assisted localism, as a viable
approach to smart growth.
Diffusion
of Innovation
From the field of rural sociology we have been given the theory
of the diffusion of innovation. Everett M. Rogers, in his 1963
book on the subject, instructs us that "Diffusion is the
process by which an innovation is communicated through certain
channels over time among the members of a social system."
Innovations can be the adoption of a farming practice - the use
of a new hybrid seed adopted by individual farmers - or a practice,
such as the use of traditional neighborhood district zoning -
adopted by a unit of government, a town or village. Rogers explains
how the process of diffusion within the community takes place.
He notes that certain types of leaders hear, evaluate, test,
adjust and implement an idea. Rogers explains that there is a
hierarchy of opinion leaders within communities, led by early
adopters, he calls them, who are broadly respected, practical,
and sufficiently innovative to try new ideas that withstand their
evaluation. "Most individuals," Rogers writes, "evaluate
an innovation, not on the basis of scientific research by experts,
but through the subjective evaluations of near-peers who have
adopted the innovation. These near-peers thus serve as social
models, whose innovation behavior tends to be imitated by others
in their system." So, if urban planners can point to a traditional
neighborhood development zoning ordinance adopted in a similar
community, the political and practical utility of the idea is
more persuasive to leaders in a new locality.
Complex Adaptive
Systems
A newer theory on the behavior of complex adaptive systems
has emerged that updates diffusion theory. Dr. Murray Gell-Mann
in his book "The Quark and the Jaguar" strongly endorses
the bottom-up approach to decision-making in resource matters.
Dr. Gell-Mann, the recipient of the Nobel Prize in Physics in
1969, has been described by the New York Times as "the man
who knows everything." He explains the theory of complex
adaptive systems in these words:
"from the behavior of organisms in an ecosystem to the
evolution of human societies, each one is a complex adaptive
system which acquires information about its environment and its
own interaction with that environment, identifying regularities
in that information, condensing those regularities into a model,
and acting in the real world based on that model."
"Perhaps the most important lesson to be learned from
contemporary experience is …the importance of bottom-up
as opposed to top-down initiatives. If local people are deeply
involved in a process, if they help to organize it, and if they
have a perceived stake, then the process often has a better chance
of success than if imposed by a distant bureaucracy…"
Regionalism
Dr. Gell-Mann's "lesson" may be reinforced by the
history of regionalism in the land use field. If localities are
complex adaptive systems, there is little evidence that their
behavior, or decision-making, in the land use field has been
influenced positively by regional or state mandates. John Kincaid,
the former Executive Director of the Advisory Commission on Intergovernmental
Relations addressed this subject in a 1993 article in the Pace
Law Review which surveyed the multiple inefficiencies of decision
making by the nation's 87,000 units of local government. In search
of a solution, he reviewed the history of consolidation and management
experiments. He concluded that such efforts, including regional
land use or transportation planning, had enjoyed very limited
success nationally, primarily because of local resistance.
In that same law review issue, Doug Porter, the President
of the Growth Management Institute, examined the experience of
the nine states that had then adopted state-wide growth management
statutes, noting that most of them were still embryonic and had
not yet provided order to the chaos of local land use control.
Recent studies of the effectiveness of state mandated planning
in five states indicate that the results are highly variable.
(Deyle &Smith, APA Journal, Autumn '98.) The jury is still
very much out on the much discussed Maryland Smart Growth Spending
Act where the tension between localism and state driven planning
objectives is high.
Professor Harvey Jacobs at the University of Wisconsin, noting
the paucity of examples of effective and responsible regionalism,
argues for responsible localism, noting that localism, however
anarchic it seems, "has rhyme and reason to it, even in
the late twentieth century." This view is reflected in the
growing success of the Hudson River Greenway Communities Council,
a classic, bottom-up approach to regional land use planning.
The Council, formed nearly ten years ago, relies on incentives
to secure participation on the part of the 242 local governments
within its jurisdiction. At its current rate of progress, over
half of these localities will have joined this regional compact
by the end of 2001.
Federalism:
Is there any sign that smart growth patterns of development
can be effected by national legislation or programming? We must
be impressed by the success of command and control laws in reducing
environmental pollution and effecting the cleanup of harmful
substances. It is significant to note, however, that most environmental
statutes have a clause stating that they are not intended to
diminish the power of state and local governments to control
land use.
Thirty years ago, Congress made one clear-headed attempt to
create a comprehensive and politically realistic approach to
land use planning. In the early 1970s, Senator Henry M. Jackson,
who is credited with the passage of the National Environmental
Policy Act, also proposed a National Land Use Planning Act. His
insight regarding this issue was profound.
Senator Jackson was frustrated by the conflicts and confusion
concerning land development and conservation programs at the
national, state, and local level. He talked often of the radically
conflicting intergovernmental policies in the Florida everglades
where one level of government was attempting to create a park,
another altering the landscape for flood control, and the third
moving to build an airport.
The National Land Use Planning Act, which ultimately failed
by 11 votes, would have created a bottom-up system of local,
regional, state and federal land use plans, through which these
levels of government could communicate and coordinate, all based
on local input. This Act failed, in part, because of hyper sensitivity
to the possibility that the national government might preempt
state and local land use control. The conclusion is that our
federal approach to land use matters is a devolved one, highly
deferential to state and local control. This is the de facto
national policy in the land use field. The 10th Amendment reserves
to the states all powers not delegated to the federal government
and we have determined that land use control is a matter primarily
within the control of the states and their local units of government.
How to Achieve
Responsible Localism
Smart growth is a theoretical cousin of sustainable development.
Attorney Daniel Sitarz, in his book on Agenda 21, writes, "irrefutable
evidence has mounted that there is an intricate interdependence
of both the world's economy and the world's ecology….The
development of the Earth to provide a basic level of comfort
for all humanity and the protection of the global environment
are two sides of the single coin of human survival."
The environmental and the development communities are compelled
by the logic of sustainable development to focus clearly on both
growth and conservation. If, today, sprawl is the problem we
address, smart growth is our current prescription for cure. At
the local level, what smart growth theories require is intermunicipal
planning that establishes discrete compact growth areas and significant
conservation corridors and landscapes. So we work, at the local
level, to create compatible areas for compact growth, and areas
for landscape conservation, linked to adjacent or similar areas
in nearby communities.
This is a minimalist's prescription for smart growth: areas
identified for growth, areas identified for conservation, and
plans to implement both. In areas for compact growth, we are
currently looking at ideas coming from neo-traditional design
and new urbanism. An example is the traditional neighborhood
district zone which includes design related "regulations"
that allow local boards to create traditionally designed neighborhoods.
This can help create compact development areas which is one side
of the coin of sustainable development.
New techniques such as conservation overlay zoning and critical
environmental area designation are being used to supplement zoning
provisions to provide significant protection to important local
landscapes. Conservation biologists are pushing us further, by
recently documenting the horrors of landscape fragmentation and
urging lawyers and biologists to develop additional regulatory
mechanisms that will prevent the fragmentation of large landscapes
by land development. This works on the other side of that coin.
Searching
for a "Smart" Land Use Strategy
Whether and to what extent the state legislature should require
regional land use planning has been an issue in New York for
nearly three decades. In 1975, the Court of Appeals held that
the failure to provide for multifamily housing in a town's zoning
ordinance could be unconstitutionally exclusionary. In doing
so, it noted that "it is quite anomalous that a court should
be required to perform the tasks of a regional planner. To that
end, we look for the Legislature to make appropriate changes
in order to foster the development of programs designed to achieve
sound regional planning." Three years earlier, in Golden
v. Ramapo, this same court, in sustaining Ramapo's controlled
growth ordinance, stated "Of course, these problems cannot
be solved by Ramapo or any single municipality, but depend upon
the accommodation of widely disparate interests for their ultimate
resolution. To that end, State-wide or regional control of planning
would insure that interests broader than that of the municipality
underlie various land use policies."
Those who argue that the New York State legislature should
adopt a strong regional approach to land use planning and regulation
do so, in part, because they perceive a need to coordinate the
often disconnected and discordant land use decisions of local
governments. The danger in this observation is that it identifies
local control as the problem to be solved, rather than the base
on which to build an intermunicipal process, responsive to regional
needs. The challenge for advocates of a regional approach to
land use planning and control is to identify effective regional
processes that respect the critical role that local governments
play in land use decision-making. To be politically palpable,
these solutions must not be perceived as methods of imposing
a state or regional body's will on local governments, but as
means of communicating effectively about regional and local needs,
balancing those interests, and arriving at mutually beneficial
decisions over time.
The principal limit to the reach of local land use control
is jurisdictional: this authority ends at the municipal border.
As a matter of law and practice, local zoning and comprehensive
planning are introspective in nature, operating within "our"
community for the benefit of "our" citizens. As a result,
this power has not been used on a regular basis as the legal
vehicle for protecting intermunicipal environmental resources,
harnessing the influences of regional markets, or influencing
the land use decisions of municipal neighborhoods that have profound
external impacts. Effective control over these intermunicipal,
or regional, matters depends on the ability of local governments
to plan and act in concert with one another. Over time the need
to exercise some extraterritorial control has increased and questions
are now being asked about how neighboring localities can protect
"our" watershed or stimulate "our" economic
future.
Intermunicipal
Cooperation
Although the New York Legislature has created a variety of
different solutions in various regions, ranging from the highly
structured Adirondacks Park Agency to the low-key Hudson River
Greenway Communities Council, its state-wide approach has been
to empower and encourage local governments to enter into intermunicipal
agreements that arbitrate intermunicipal interests and establish
collaborative implementation strategies. New York leads the nation
in granting authority to municipal corporations to contract with
one another to undertake shared activities. The legislature first
authorized local governments to cooperate by entering into intermunicipal
agreements in 1960 with the enactment of Article 5-G of the General
Municipal Law. This statute provides municipal corporations with
express statutory authority to enter into intermunicipal agreements
for the performance of their respective functions, powers, and
duties.
The provisions of these 1960 amendments to the General Municipal
Law were broad enough to allow municipalities to cooperate regarding
land use planning, regulation, and administration. Although a
few communities used this authority for that purpose, the state
legislature in the early 1990's thought that it was necessary
to make this intermunicipal land use authority more explicit.
In 1992, the legislature enacted additional legislation to further
encourage intergovernmental cooperation concerning comprehensive
planning and land use regulation. These statutes make it clear
that local governments have the authority to create intermunicipal
planning boards, zoning boards of appeals, comprehensive plans,
land use regulations, intermunicipal overlay districts, and programs
for land use administration and enforcement.
First Generation
Intermunicipal Agreements
From the 1970's until the mid-1990's, under their broad authority
to collaborate regarding land use planning, regulation, and enforcement,
local governments experimented with a variety of means of cooperation.
A number of municipalities in this first phase used their intermunicipal
authority to consolidate planning boards or zoning boards of
appeals. This kind of consolidation brings an intermunicipal
perspective to the decisions of these boards. Sometimes boards
were consolidated to apply for state or federal aid the municipalities
would not have been eligible for independently. The costs associated
with joint planning activities may be apportioned between the
participating municipalities on any equitable basis.
During this early period, intermunicipal agreements were also
entered into to design and upgrade drainage systems on an intermunicipal
basis, form a cooperative entity for intermunicipal watershed
data gathering and monitoring, undertake hydrological testing
and water supply development, enforce land use regulations through
hiring of shared officers, gather data and monitor environmental
conditions, share the use of water filtration plants, and conduct
joint site plan review processes.
In 1982, the Town of Lowville entered into an intermunicipal
agreement with the Village of Lowville to consolidate their planning
and zoning boards. The Town of Denmark and two of its villages
entered into an agreement to hire a joint zoning enforcement
officer. In 1984, the County of Orleans helped three of its towns
form a cooperative board to prepare a Waterfront Revitalization
Program. By the early 1990s, communities were implementing land
use regulations cooperatively. St. Lawrence County assisted the
Town of DeKalb and the Village of Richville to conduct site plan
reviews jointly. In 1992, three New York and two Connecticut
towns passed identical resolutions designating the Mianus River
a critical shared resource and pledging to cooperate in protecting
it.
Second Generation
Intermunicipal Agreements
Although many of the activities performed through these first
generation compacts were relatively simple in nature, much was
learned from them. They demonstrated, for example, that counties,
state agencies, and New York City could assist, finance, and
cooperate with entities created by cities, towns, and villages.
By the mid-1990s, there was evidence that communities were willing
to use their intermunicipal authority to adopt consistent land
use plans, regulations, and review processes. A 1994 intermunicipal
agreement among the Villages of Castile and Perry and the Town
of Castile arguably began a new phase of land use cooperation
initiating joint adoption of zoning provisions. A Titicus River
accord, signed in 1995, joins two New York towns, two Connecticut
municipalities, and New York City's Department of Environmental
Protection in an agreement to preserve that watershed, illustrating
the full intergovernmental and regional potential of the intermunicipal
authority created by the New York State legislature.
Over the last few years, a second generation of intermunicipal
compacts has appeared. These are more intricate agreements demonstrating
that intermunicipal authority is capable of being used to coordinate
land use planning, regulation, and enforcement over much larger
geographical areas and by more complicated means.
Ten municipalities in the lower Hudson River Valley entered
into an intermunicipal agreement in 1994 to establish the Historic
River Towns of Westchester compact to advance their common interest
in tourism and waterfront revitalization. In 1995, eleven villages,
the Town of North Hempstead, and Nassau County agreed to undertake
a series of activities to protect and enhance the quality of
Manhaset Bay. This, and a similar agreement among 14 towns to
protect the Oyster Bay-Cold Spring Harbor area, were facilitated
by the Department of State, Division of Coastal Resources and
Waterfront Revitalization. The State Department of Environmental
Conservation signed on with a county and three towns to create
the Irondequoit Bay Management Project in 1997. In 1998, eleven
cities, towns, and villages in Westchester County agreed to collaborate
to prevent the pollution of Long Island Sound. They applied for,
and received, a grant from the state to conduct a feasibility
study to initiate their partnership.
In the Tug Hill region, local governments have been working
together since 1981. Recent amendments to their compact stipulate
that the Cooperative Tug Hill Council, which has become a regional
coordinating entity, is to provide a representative forum for
developing a long-term vision, designate special areas of regional
concern and develop a plan for the region, provide technical
and project review assistance to constituent towns, review projects
proposed in special areas for consistency with the overall plan,
and provide a regular communication system on development and
conservation matters among the participating localities.
Interestingly, this model was begun in the early 1970s at
the initiative of the state legislature. Because of the threatened
development of 55,000 acres of wilderness forest in the Tug Hill
region, the legislature established The Temporary State Commission
on Tug Hill in 1972. Instead of simply studying the region's
problems and making recommendations, as originally conceived,
the Commission established the Cooperative Tug Hill Planning
Board through an intermunicipal agreement and with representation
from each participating town. This Board was the predecessor
to the Cooperative Tug Hill Council whose contemporary objectives
and functions closely approximate those of most traditional regional
planning entities.
This progress at the eastern end of Lake Ontario, and the
other second generation compacts, are the occasional results
of a serendipitous process. In one instance, inspired local officials
forge a compact. In another, a county coalesces an alliance.
In still a third, a state agency provides leadership, funding,
and inspiration for the formation of several large-scale intermunicipal
organizations. When one generalizes about this experience it
is possible to argue that, overall, it constitutes a healthy
and successful evolution toward grassroots regionalism. The problem
with the generality is that these experiences are highly particular,
occurring in all too few locations.
State Policies
and Programs for Smart Growth
What is needed to assist local governments achieve smart growth
objectives? If we are committed to localism, how can the State
of New York accelerate the rate at which local governments adopt
balanced blueprints for smart growth and insure that regional
interests are considered? Are the many state statutes that allow
extensive horizontal and vertical coordination enough? Have the
second-generation agreements sufficiently demonstrated the willingness
of local governments to work together over broad enough areas
on critical land use matters? What more should the state do?
The answer may simply be to make this form of grassroots regionalism,
or guided localism, the intentional policy of the State of New
York and back it up with the commitment of existing financial
and technical resources. What if a state agency were charged
to provide an aggressive educational program, explain the vast
authority of local governments to guide development and conservation
and their intermunicipal authority, demonstrate the remarkable
results of the second generation compacts, and provide a packet
of information on how to create such approaches, complete with
model ordinances and intermunicipal agreements? What if that
agency followed up by providing technical assistance to local
officials interested in adapting these experiences to their communities?
What if significant amounts of discretionary state funds, normally
dedicated to infrastructure development, open space acquisition,
and commercial and community development programs were set aside
for expenditure in priority funding areas designated by local
governments alone or as part an intermunicipal compact? What
if the state's funding criteria made it clear that infrastructure
funding is more likely to be spent in designated areas that contain
existing development centers and that open space acquisition
funds are more likely to be allocated to designated areas that
contain significant natural resources or fertile agricultural
lands?
Beginning this year, the Quality Community Program is making
funding available on a priority basis to local governments involved
in intermunicipal efforts to encourage economic development and
resource conservation. This small beginning has already encouraged
numerous municipalities to develop joint land use programs. As
the success of this program is demonstrated, a much larger share
of the state's discretionary dollars can be tied to intermunicipal
efforts to meet regional smart growth needs. The state's funding
protocol can routinely make it clear that money for infrastructure
development, open space acquisition, and community development
is more likely to be received if local governments, working together,
have designated priority areas for development and for conservation.
In addition, state, regional, and county agencies can speed this
process by providing technical assistance, data, and regional
demographic information to cooperating localities. New legislation
is needed to allow tax-base sharing among municipalities and
effective means of mediating disputes over regional impact projects.
These steps can form a new policy of guided localism leading
to responsible regionalism. This approach proceeds from the assumption
that local actions can be smart and regionally responsible and,
quite apart from being the problem to be solved, are integral
to the solution of achieving balanced growth and environmental
conservation in New York.
Is it possible that New York's legislature and local officials
have responded effectively, if quietly, to the 25 year old call
of the Court of Appeals for a regional land use policy? The legal
connections are there. The evidence of local willingness to employ
them is in. The time may be right for the state to build on this
now solid and impressive base of local smart growth actions and
grassroots regionalism so that its benefits can be much more
broadly enjoyed.
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