EPA-R5-73-018
MAY 1973 Socioeconomic Environmental Studies Series
Environmental Protection
through Public and Private
Development Controls
Office of Research and Monitoring
U.S. Environmental Protection Agency
Washington, D.C. 20460
-------
RESEARCH REPORTING SERIES
Research reports of the Office *~£ Research and
Monitoring, Environmental Protection Agency, have
been grouped into five series. These five broad
categories were established to facilitate further
development and application of environmental
technology. Elimination of traditional grouping
was consciously planned to foster technology
transfer and a maximum interface in related
fields. The five series are1:
1. Environmental Health Effects Research
2. Environmental Protection Technology
3. Ecological Research
U. Environmental Monitoring
5. Socioeconomic Environmental Studies
This report has been assigned to the SOCIOECONOMIC
ENVIRONMENTAL STUDIES series. This series
describes research on the socioeconomic impact of
environmental problems. This covers recycling and
other recovery operations with emphasis on
monetary incentives. The non-scientific realms of
legal systems, cultural values, and business
systems are also involved. Because of their
interdisciplinary scope, system evaluations and
environmental management reports are included in
this series.
-------
EPA-R5-73-018
May 1973
ENVIRONMENTAL PROTECTION THROUGH
PUBLIC AND PRIVATE DEVELOPMENT CONTROLS
By
Ann L. Strong and John C. Keene
The University of Pennsylvania
Philadelphia, Pennsylvania 19174
Project 16110EDC
Project Officer
Edward V. Geismar
Region III
Environmental Protection Agency
Philadelphia, Pennsylvania 19106
Prepared for
OFFICE OF RESEARCH AND MONITORING
U. S. ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D. C. 20460
For sale by the Superintendent of Dooumenis, U.S. Government Printing Office, Washington, D.C. 20402
Price $2,10 dotn&stic* Dost Dai d or $1.75 QPO Bookstore
-------
EPA Review Notice
This report has been reviewed by the Office of Research
and Monitoring, EPA, and approved for publication.
Approval does not signify that the contents necessarily
reflect the views and policies of the Environmental
Protection Agency, nor does mention of trade names or
commercial products constitute endorsement or recommendation
for use.
ii
-------
ABSTRACT
The studies described herein are an integral part of
a much larger study of land management for purposes of
water resource protection. The larger study is popularly
known as the "Brandywine Project."
The EPA-supported research is classified into three
principal categories: (1) research directly related to
the Brandywine Project; (2) investigation of public
regulatory and less than fee controls on development;
and (3) shaping of the concept of a private development
corporation. The research approach is predominantly
legal and governmental. In all instances in which infor-
mation is available, citizen response to the various
development controls has been examined and is included
in the research reports.
The research conclusion is that greater use of large-
scale public and private control of land development can
not only contribute significantly to water resource
protection but will also increase private benefits. We
predict increasing use of these forms of controls despite
a substantial amount of opposition from private landowners.
This report was submitted in fulfillment of Project
16110 EDC, under the sponsorship of the Office of Research
and Monitoring, Environmental Protection Agency.
iii
-------
CONTENTS
Section Page
I Conclusions 1
II Recommendations 3
III introduction 5
PART A. BRANDYWINE RELATED RESEARCH 7
IV The Brandywine Plan and Program 9
V The Brandywine: Five Years After 23
PART B. PUBLIC REGULATORY AND LESS THAN 63
FEE CONTROLS
VI Municipal Regulations 65
VII Less-Than-Fee Controls 73
VIII Federal Taxes and Easements 85
PART C. PRIVATE DEVELOPMENT CONSORTIA 91
IX The Feasibility of Private Development 93
Consortia as a Means of Conserving
Open Space
X Legal and Financial Aspects of Land 101
Development Corporations
XI Acknowledgements 113
XIl Appendix 115
v
-------
TABLES
No. Page
1 UEB Residents' Perceptions of Growth by Types 25
2 Perceptions of Buyers & Sellers of Land in the UEB 27
3 How Should Growth Relate to the Natural Environ- 31
ment
4 Reactions to Development Scenarios 33
5 Familiarity with Zoning, Comprehensive Planning 36
and Conservation Easements
6 Township Zoning Statutes and Responses to: "Is 37
your township zoned?"
7 Attitudes Toward Conservation Easements 38
8 Reasons for Opinion about Conservation Easements 39
9 Familiarity with Conservation Easements by Size ,41
of Landholdings
10 Familiarity with Conservation Easements by 42
Educational Attainment for Landowners
11 Opinion on Conservation Easements by Size of 42
Parcel for Landowners
12 Opinions Regarding Who in Fact Does and Who Should 43
Control Growth in the Brandywine Basin
13 Responses of Brandywine Residents to Five Means 45
of Development Control
14 Understanding of the Plan by Level of Education 48
15 Understanding of the Plan by Amount of Land Owned 49
16 Reasons for Support and Opposition to the Plan 51
17 Response to the Plan by Brandywine Residents 52
18 Actions Taken by Brandywine Residents 54
vi
-------
SECTION I
CONCLUSIONS
1. The relationships between land use and environmental
quality, including water quality, are not well understood,
either by professionals or the public at large.
2. The Brandywine project made a significant scientific
contribution in this respect but, because the Plan was
not carried out, proof for many of the hydrologic hypo-
theses was not forthcoming.
3. The economics of land management techniques for water
resource protection have been explored theoretically.
As with hydrology, field demonstrations are lacking to
prove or disprove the theories.
4. Zoning and other municipal regulatory controls are
totally inadequate to the task of controlling land use
so as to protect water resources. They can have a role
but only a minor role in this task.
5. Until people understand the environmental and economic
consequences of current modes of development, they are
not going to accept more stringent public controls»
During the past five years there has been the dawning of
such understanding, but much greater public education is
needed before we can look to a widespread change in
attitudes toward land use control.
6. Major land use decisions should no longer be made
by local governments. • The interests reflected at the
local level are necessarily parochial and short-lived.
A regional constituency must be represented.
-------
SECTION II
RECOMMENDATIONS
The legal proposals of the Brandywine Plan are sound
and warrant experimental use. Many variants of them are
now being tested piecemeal, but there is no unified
demonstration which will yield quick and scientifically
valid results. There were two flaws in the Brandywine
project: the time was a few years too soon and the
level of government relied upon to act was too low.
Increased consciousness, in government and among the
public, of the environmental degradation brought about
by improperly planned land use makes the climate much
more propitious today than in 1966-1968. Matched with
a series of court decisions rejecting stringent land use
regulation unaccompanied by compensation, the time seems
ripe for a new demonstration effort, sponsored by a
forceful public agency exercising powers at the regional
level.
-------
SECTION III
INTRODUCTION
The Brandywine Plan was an ambitious effort to develop
a politically acceptable way of protecting the water
resources of an urbanizing area while still providing
for a normal amount of growth. An essential part of the
Plan was that it be carried out, to demonstrate the
validity of its underlying concepts.
The Plan succeeded in many ways, probably most signifi-
cantly in establishing a sound hydrologic base for urban
land use planning, but it failed to win acceptance by
the people of the Brandywine watershed. Therefore, it
was not carried out.
Development of the Plan began in 1966 and continued until
mid-1968, when the Plan was rejected. The EPA supported
research began in January of 1968, as part of Brandywine
planning, and continued through 1971, when we returned
to the Brandywine to talk to people about the Plan and
its impact.
Brandywine planners started with, and still hold to, the
belief that it is possible to create a place for people
to live at moderate densities without destroying the
beauty and health of the natural environment. We chose
water as the principal indicator of the character of the
natural environment and sought to prove five related
assumptions:
(1) through careful planning a normal amount of urbaniza-
tion can occur without damaging the water resources of a
watershed;
(2) the land use pattern produced by such planning
appeals to people more than conventional development;
(3) in a totaling up of the costs and benefits—hydrologic,
environmental, social, and economic—of this land use
pattern and matching them against the costs and benefits
of conventional development, the Brandywine Plan would
-------
win by a significant margin;
(4) legally valid ways can be found to turn these planning
principles into land use realities; and
(5) political acceptance can be won for both the plan-
ning principles and a program for their implementation.
It is the last two of these assumptions which we investi-
gated with EPA support and to which this report is directed.
Since this work also had many other aspects not discussed
here, the reader is referred to the list of publications
for additional information.
-------
PART A. BRANDYWINE RELATED RESEARCH
Support from EPA was received starting in January 1968.
At this point, two-thirds of the time for preparation of
the Brandywine Plan had elapsed. Therefore, the initial
activities under the grant were in support of planning
work already underway, including preparation of the final
Plan report and a movie. Later, after the Plan was re-
jected by six of the eight affected municipalities, the
direction of work was altered to an evaluation of the
reasons for the rejection. In part this consisted of two
series of field interviews with people in the Brandywine;
in part, two planning staff principals thought and wrote
about the experience.
Sections IV and V in Part A provide an overview of the
Brandywine research. Section IV presents a brief summary
of the recommendations of the Plan and Program for the
Brandywine and their underlying technical rationale. Sec-
tion V summarizes the results of two interviews of a
sample of area households, one interview pre-Plan, and
the other after its rejection. These interviews sought
to elicit the views and attitudes of the Brandywine area
residents concerning the environmental effects of convert-
ing agricultural and undeveloped land adjacent to the
Brandywine basin's streams to urban uses, and their
attitudes toward what constituted "proper" or legitimate
gpvernmental action to achieve the objectives set forth
in the Plan.
-------
SECTION IV
THE BRANDYWINE PLAN AND PROGRAM
The Upper East Branch of the Brandywine, its water re-
sources and present development, the desires of its people
for the future use of the land, and the impact of future
urban development on its natural characteristics were
intensively studied by consultants to the Chester County
Water Resources Authority. The purpose of these studies
was to determine whether the inevitable urban development
of the Upper East Branch watershed could be accomplished
with the minimum of damage and disruption to the water,
scenic, and other natural resources of the area which were
of value to the people. The Brandywine Plan, a popular,
liberally illustrated report published in April 1968, and
The Plan and Program for the Brandywine, the technical
report published in October 1968, were the results of that
study.
Introduction
During the winter and spring of 1968, much of the planning
work was directed to development of legal alternatives for
land use control and implementation of the Plan's recom-
mendations. Basically the Plan called for retaining in
open space all land within the 50-year flood plain and
within a 600-foot wide stream corridor. Further, it speci-
fied that forested lands and slopes of 15 percent or more
be limited to development at a gross density not in ex-
cess of one dwelling unit for every four acres. Obviously
these limitations on development were too stringent to
impose through zoning alone. Land use controls which would
compensate the landowner for lost development value were
essential.
In this regard, research was directed toward several
activities: (1) drafting of state enabling legislation
(enacted during the course of the Brandywine project)
to authorize the state and counties to purchase rights
in land so as to control the development of the land and
to use the power of eminent domain; (2) drafting of state
-------
enabling legislation (also enacted) to assure real property
tax assessment based on the open space value of land re-
stricted to farming, forestry, water resource protection
or similar uses; (3) developing six alternative legal
approaches by which a public agency, here the county,
could limit or prevent development of land critical to
water resource protection while providing compensation to
landowners; (4) meeting with lawyers, planners, local
government officials, and citizen groups to discuss these
alternatives and solicit their response; (5) sponsoring
public meetings at which people experienced in use of
various of these land use controls discussed their ad-
vantages and disadvantages; and (6) after choice of a
specific approach for the Brandywine, drafting of a con-
servation easement and writing the explanatory text of
the Plan.
The Recommendations of the Plan
The Brandywine Plan recommended three basic proposals
which were to be the organizing principles for further
action. These recommendations were:
1. Further development should be kept out of flood plains
and three hundred foot wide strips on each side of streams
and their natural drainage network. Development should be
limited in wooded areas and on steep slopes.
2. The townships in the Upper East Branch should begin
now to do long range planning for the design, financing,
and construction of sewerage and water supply systems so
that action can be taken quickly when future population
growth makes these facilities necessary.
3. The townships should enact strong regulations govern-
ing the lay-out and construction of subdivisions, roads,
and storm sewers, and the control of erosion during con-
struction.
Upon the acceptance of these recommendations by the town-
ships of the Upper East Branch and the Chester County
Commissioners, the following action program was proposed:
10
-------
1. A Water Resources Protection District for the Upper
East Branch should be established as the basic element in
a general plan for the watershed. This District would
include those lands critical to the protection of the
stream and its valley as outlined in the first recommenda-
tion. The District was intended to become a basic element
in further comprehensive planning efforts at the township
and county levels.
2. Conservation easements should be purchased from owners
of land in the Water Resources Protection District who
agreed voluntarily to sell such easements which would
restrict future development of their land. In order to
maintain the integrity and effectiveness of the Plan,
easement purchases would have been made only in sub-basins
of the watershed where owners of at least 80 percent of
the Water Resources Protection District lands agreed volun-
tarily to the sale of easements.
3. The easement purchase program would be initiated by
securing short-term options for easements in a single sub-
watershed. The first sub-watershed would be chosen largely
on the basis of local interest and enthusiasm. If owners
of at least 80 percent of the Water Resources Protection
District area in that sub-watershed agreed voluntarily to
sell options, the Authority would then purchase the ease-
ments. This would require initial financial support from
both the County Commissioners and outside agencies.
4. The easement purchase program would then be extended
to other sub-basins of the Upper East Branch if it was
successful in the first sub-watershed and if further county
and outside financing could be secured. The Authority's
intention was that all or virtually all of the land in the
Water Resources Protection District would eventually be
placed under development restrictions through the voluntary
sale of easements by owners to the Authority.
The backbone of the plan was the proposal that the Water
Resources Authority hold easements in areas most critical
to the water resources. This meant that owners would have
been paid not to develop some of these areas and to re-
strict development to very low densities in other areas.
11
-------
The basic rationale for adopting this approach as a supple-
ment to zoning in the critical areas is that: (1) zoning
is too easily changed to provide the guaranteed permanence
necessary for protection of the basin's water resources
and of the beauty of the natural environment; and (2) the
development controls necessary for the protection of the
water resources would be so restrictive to land in the
critical areas that it would be only fair to compensate
the landowners for any loss in market value resulting
from the imposition of the controls.
Public ownership of the critical areas is unnecessary and
undesirable, since the only public objectives are those of
conservation of water and scenic resources. These purposes
do not require full public ownership of the critical .areas
and their removal from private use and from the tax rolls.
The Plan Principles and Rationale
The recommendations and action program outlined above were
the result of a variety of hydrologic, legal, attitude,
economic, demographic, geographic, landscape and other
technical studies as well as discussions with officials and
citizens of Chester County. The contents and findings of
these studies are summarized in the following pages. This
summary ties the recommendations of the Plan to general
hydrologic, legal, and economic principles and specific
findings about the Upper East Branch area.
The Hydrologic Rationale
The hydrologic rationale of the Plan constituted one of its
most important foundations. The main reason for this is
that the hydrologic system is affected in a variety of
deleterious ways by urban development. Impervious ground
cover in the form of buildings and pavement, and the re-
moval of vegetation increase runoff and floods, subse-
quently reducing ground water levels and the recharge of
the stream. During construction, sedimentation is greatly
increased. Pollution loads rise with urbanization. Fur-
thermore, these three major effects of urbanization on the
stream are interrelated. Greater volumes of runoff in-
crease erosion and flow variability. Flow variability
-------
along with sedimentation widens channels and magnifies
pollution problems at low flow. All of these effects in-
teract to reduce the amenity of the stream and its immedi-
ate surroundings. The wide, shallow channel which results
becomes choked with undesirable plant life. The water
becomes turbid with sediment and fouled with pollutants.
The entire ecology of the stream area deteriorates and
the stream, its banks and its neighborhood become un-
attractive.
The hydrologic objective was to maintain the present con-
dition of the stream and, if possible, to improve it where
the quality or amenity currently was less than good. The
principle of accepting the basin's normal share of urban
growth impinged upon the hydrologic objective and compli-
cated planning. More people means more demand for water
and more wastes to be handled. Since a major aim of the
Brandywine Plan was to demonstrate that it is possible to
have both urban development and sound hydrologic conditions
in a basin, it was decided as an additional hydrologic
constraint that all water to meet the needs of future
residents should be supplied from within the basin and
that all wastes generated within the basin should be treated
there. If additional water were imported and wastes ex-
ported, it would be relatively simple to maintain Upper
East Branch water conditions and add an urban population.
However, it would not be a fair test of the thesis that
the existing water resource network can serve a typical
suburban population adequately and that the people need
not degrade the stream.
Urbanization and Hydrologic Change
To translate the planning principles into land use propo-
sals first requires a knowledge of what normal growth
would be and how such growth—and urban growth generally—
would affect the hydrologic system. Then, if such growth
would result in deterioration of the hydrologic system,
including water supply, quality, and amenity, what restric-
tions on land use could be proposed which would prevent
this deterioration? Could these land use proposals take
such a form as to be compatible with wishes of present
13
-------
and prospective residents for the future character of the
environment?
Given the inexactitude of population projection, particu-
larly for an area as small as the Upper East Branch, it
seemed advisable to select a design population on the high
side of the projections and for some decades in the future.
If it is possible to propose a satisfactory plan for a sub-
stantial future population, living at currently popular
suburban densities, then intermediate populations can be
accommodated with even less damage to the environment. J.f
preferences in densities change, and areas of higher den-
sity become acceptable, development could proceed in this
direction, reaching the design population sooner than now
anticipated. The choice of 38,000, the saturation popula-
tion with present zoning and the Plan*s recommendations,
as the design population provides a sufficiently large
target figure to permit considerable upward change in rate
and/or density of growth in the basin. A plan which provides
for 38,000 people and for protection of water resources
would be valid for many years, if not assuredly to a given
future date.
Study of the usual effects of urbanization on the hydrologic
system showed that these effects take the following forms:
increased flooding, decreased water supply, increased
erosion and sedimentation, decreased water quality, and
decreased amenity. These effects are caused by some un-
avoidable concomitants of urbanization: decrease in natural
vegetative cover, increase in impervious surfaces, extensive
storm sewerage, and increased use of water and discharge of
wastes. Since urbanization, and these accompanying changes
in land and water use, is to be accepted, the problem is to
manage urbanization so that the usual deleterious effects
on water resources are avoided or minimized.
This the Plan proposed to achieve by a combination of two
approaches to land management. First, the areas most crit-
ical to protection of water resources have been delineated
and severe limitations on development proposed for these
areas so that they can continue to function naturally, as
they now do, to regulate flow, to limit erosion, and to
absorb pollutants. Second/ for the remaining areas, where
14
-------
most urganization therefore would occur, a system of works—
water supply, erosion control, surface runoff, and waste
disposal—is proposed to reduce markedly the usual harmful
effects. Whatever increased flow, sediment cr pollution
exceeds the capacity of these works from time to time, it
is expected that the natural land in the critical areas
can absorb. In this manner, the natural environment's own
modifying and cleansing capacities will be used insofar
as possible to prevent deterioration in the water resources
of the basin.
From the hydrologic studies it was apparent that the portions
of a watershed .whose use most significantly affect water
resources were (1) the flood plain, (2) the land adjacent
to streams and swales, (3) the steep slopes, and (4) the woods
(1) The flood plain was defined for purposes of the
Plan as that area flooded on the average of once every 50
years. This area has been shown to approximate the area
which lies below the line created by the intersection with
nearby slopes of a plane.with a height above the stream
bottom of twice the average height of the stream banks. It
includes the actual flood plain, as technically defined be-
low, and terraces. Three percent of the Upper East Branch
watershed is flood plain as here defined.
(2) The stream buffer is defined as all land lying
within 300 feet of all streams and swales, exclusive of
flood plain land. The role of the stream buffer is to pre-
vent many of the harmful effects of urban development from
reaching the stream network. Effluent from on-site sewage
disposal systems, leaching from junkyards, sediment eroded
from land under development, and overland flow of pollutants
either can be retained or absorbed by the stream buffer or
their impact on the stream reduced. The stream's natural
amenity also is protected by keeping development set back
from the stream.
(3) Slopes are defined as all contiguous areas of at
least five acres with slopes of 15 percent or greater, ex-
clusive of stream buffer land. Twenty-foot contours on
Geological Survey maps were used to determine steepness and
extent of slope. Many steep areas, particularly along the
15
-------
lower portion of the stream, already are marked for pro-
tection as part of the stream buffer. Most of the remain-
ing slopes of 15 percent or greater are either adjacent
to the stream valley but over 300 feet from the stream or
on the two major ridges in the basin. Slopes are critical
for water resource protection primarily because they are
prone to erosion.
(4) Woods are defined as all contiguous areas of at
least ten acres shown as woods on the Geological Survey
maps, exclusive of flood plain and stream buffer land. In
many instances, woods and slopes coincide. The Brandywine
Plan takes the position that while woods may .suitably be
urbanized, they are of even greater importance for water
resource protection.
All of the critical areas together constituted the Water
Resources Protection District. This District therefore in-
cluded all of the flood plain, stream buffer, and woods and
slopes land in the watershed. The Water Resources Protec-
tion District was mapped at a scale of one inch equals 400
feet, and each property owner was sent a copy of a portion
of this map showing which parts of his land were included
in the District and whether they were flood plain, stream
buffer, and/or woods and slopes.
Forty-six percent of the land in the Upper East Branch basin
lay within the Water Resources Protection District. This
total area closely approached the overall recommendation of
the staff and advisory hydrologists that half of the land
be kept in open space uses and natural vegetation. An
additional general recommendation was that the most criti-
cal lands were those nearest the stream and swale network.
In the early stages of establishing the critical areas, con-
sideration was given to selection of that 50 percent of the
basin nearest the stream and several possible ways of de-
fining this were explored. However, this possibility was
discarded because of the omission of seme steep slopes and
woods. The vulnerability of steep slopes to erosion and
the contribution of large wooded areas to erosion prevention
and preservation of amenity were judged of greater conse-
quence to water resource protection than a more extensive
stream buffer undifferentiated as to slope or vegetation.
-------
Land Use Restrictions in the Water Resources Protec-
tion District
Land use restrictions proposed for the Water Resources
Protection District were supplemental to township, county,
and state regulations and were designed specifically to
achieve the water resource objectives of the Plan. At the
same time restrictions were to assure fair treatment of
all landowners and permit as wide a range of uses as is
compatible with water resource protection, so that the
restricted land would be readily marketable.
The use restrictions for the Water Resources Protection
District limit the density of future development, restrict
the amount of impervious cover of future development, and
provide for hardship situations. The density restrictions
applied primarily to construction of single-family detached
houses. All other types of development were possible, sub-
ject to limitations on impervious cover and to township
zoning provisions.
Generalizing about the impact of the restrictions, in the
flood plain, no new development would occur; in the stream
buffer, new development could occur only in hardship situa-
tions and subject to density or impervious cover limitations;
and, in the woods and slopes, new development could occur,
subject to density or impervious cover limitations. Choice
of type of development remains the responsibility of the
townships, to be reflected through zoning and other town-
ship regulations.
Hardship situations were defined as those in which a parcel
was unimproved, having no dwelling, commercial, institutional,
or industrial structures erected on it, and (1) was located
so that at least 90 percent of it lies within the Water Re-
sources Protection District or (2) had too small an area
outside the Water Resources Protection District to permit
construction there of a building under applicable township
regulations.
Land Values
Sample appraisals of properties which would be affected by
the Water Resources Protection District were made. The
approach was to establish property values under present
-------
conditions and to estimate what the value would be imme-
diately after conservation easements are sold. The dif-
ference between these two values should be the fair price
of the easements. The appraisals suggest that the total
cost of the easement program would be approximately 3 mil-
lion dollars. Economic theory suggests that compensation in
the form of easement purchases is likely to err on the side
of overpayment to landowners if this compensation is based
only on the immediate drop in value. It was hypothesized
that subsequent land values/ both in the restricted areas
and in the surrounding unrestricted development areas/ would
rise faster than in similar watersheds outside the Upper
East Branch. This would be due to the increasing scarcity
of open low-density areas in the metropolitan region, and
the effect of the permanent environmental guarantees in the
Upper East Branch in removing much of the uncertainty about
future land values. These values would ordinarily be af-
fected adversely by the anticipated decline of environmen-
tal amenity.
Both the appraisals and a statistical analysis of recent
property sales in the Upper East Branch suggested that the
lands which would be affected by development restrictions
are generally below average in present value. This is
reasonable since the flood plain and buffer areas tend to
be poorly drained and unsuitable for on-site sewage dis-
posal. Steep slopes present obvious development difficul-
ties. In fact, the areas least suitable and most costly
to develop correspond surprisingly well with the Water
Resources Protection District.
Sewage Disposal and Subdivision Controls
The basic program of easement acquisition would clearly not
be successful in achieving the desired effects without fur-
ther control on development. One of the underlying prin- , ,
ciples of the Plan was that as many people should be housed ,'
in the Upper East Branch area under the Plan as would live
there without the Plan. Under the Plan*s recommendations
and existing zoning regulations, as much new house construc-
tion as is expected over the next 50 years could be accom-
modated. This would total 38/000 people.
18
-------
A further principle was that the water demand and sewage
load created by this population should be managed within
the Upper East Branch Brandywine basin, while maintaining
high stream quality standards. Therefore,, a water supply
and sewage disposal plan and special subdivision control
regulations relating to construction practices and to sedi-
ment and runoff control were important adjuncts to the
basic land use controls.
Legal Principles
A guarantee of the United States and Pennsylvania Constitu-
tions , that private property shall not be taken for public
purposes without just compensation, underlies the principle
of the Brandywine Plan that fair compensation be paid for
development restrictions.
Protection of water resources—water supply, water quality,
and stream amenity—is a public purpose justifying the exer-
cise of public control of land use. In limiting the use
which some private landowners may make of their property in
order to achieve a valid public objective, it is essential
that provision be made for compensation to the landowners
if the restrictions, by severely limiting the use which may
be made of the land, considerably reduce its market value.
Where the restrictions do not seriously impair market value,
compensation need not be paid.
The principle, though not the law, of fair compensation
extended further in the Plan. What is legally adjudged fair
compensation still may leave the landowner in a less favor-
able future economic position relative to other landowners
in the basin. Therefore, meeting the full objective of the
principle requires provision of a means whereby a restricted
landowner may place himself in an equally competitive posi-
tion with other landowners to share in development gains.
Such a means would be share ownership in a development cor-
poration.
Attitudes and Public Acceptance
All who participated in developing the Plan agreed that it
should receive the endorsement of the people of the Upper
19
-------
East Branch and of municipal and county officials for
implementation to be warranted. It was further agreed that
endorsement should come from the individual citizens of the
watershed/ both those whose land would and would not be
affected by the Plan's proposed land use controls, from the
township officials who represent these people, and from the
county officials who must consider the broader welfare of
the citizens of Chester County in weighing the impact of
implementation of the Plan.
The question of the acceptability of the Plan and its
method of implementation go far beyond the problem of co-
ordination between the Plan and the plans and projections
of the individual affected townships. Many of these prob-
lems are pointed up both from the general point of view
and from the point of view of the experience of the planners
in presenting the Brandywine Plan to the residents of the
area. Acceptance of the purposes of the Plan was wide-
spread, as was anticipated from the results of the attitude
study reported in the next section. This acceptance was
not matched by political acceptance of the methods to be
used.
The attitude study suggested a strong local desire for the
preservation of the environment and a preference for living
in such an environment. It is interesting that those who
presently live in attractive rural areas do not appear to
engage in outdoor activities much more than those who live
in denser urban areas. In fact, one of the strongest moti-
vations seems to be the privacy which comes with very low
density development. This suggests that there is probably
a good market for the large lots which would be required in
the Water Resources Protection District.
This desire for privacy is consistent with the conservative
political philosophy of many Upper East Branch residents.
Both the attitude survey and the reaction to the Plan indi-
cate a strong dislike for government intervention in private
property rights, even though compensation is paid for the
restriction of these rights. Respect for this viewpoint
has led the Water Resources Authority to insist that the
sale of easements by the landowners would be voluntary
rather than forced by the use of eniment domain.
20
-------
Summary
The Plan for the Upper East Branch of Brandywine Creek was
a plan for protection of water resources and natural amen-
ities within the context of normal urban growth. Planning
for urbanization, including transportation, education,
housing mix, commerce, and industry, was to remain the
responsibility of the existing network of township, county
and regional planning agencies. However, since urbaniza-
tion inevitably affects water resources and natural amen-
ities, a plan for their protection necessarily must in-
fluence urbanization plans. Concomitantly urbanization
plans will affect water resource plans. The Plan started
with the premise that urban man can and should live in
harmony with nature, and that therefore the first step of
planning for people should be to assure the protection of
a substantial portion of the pre-existing natural environ-
ment. If this premise is accepted, it imposes a constraint
on urbanization planning but still leaves considerable room
for the operation of other constraints and objectives.
The Brandywine Plan sought to assure that the water supply,
water quality, and stream valley amenity of the Upper East
Branch watershed would be as good or better than they are
today after urbanization comes. Self-imposed constraints
on this goal are that as many people should be accommodated
in the basin as would move there absent the Plan, that water
not be imported or wastes exported, that development of the
basin be more economically beneficial under the Plan than
without it, and that present residents be fairly compensated
for any restrictions placed by the Plan on their right to
develop.
i
The Plan differed from many plans in that the translation of
the principles for the basin into land use proposals is
accompanied by specific recommendations for an action pro-
gram of land use controls to implement the proposals. Essen-
tially, these controls would consist of easements to prevent
or limit development in areas most critical to the stream
and of regulation of the remaining land to prevent develop-
ment inimical to water resource protection. Acceptance of
the Plan would include acceptance of the land use control
program. The Chester County Water Resources Authority was
21
-------
the public agency empowered to carry out many of the land
use control proposals. Enactment of the remaining controls
would be the responsibility of township government or of
other county agencies.
-------
SECTION V
THE BRANDYWTNE: FIVE YEARS AFTER
Introduction
In July of 1968, the Brandywine Plan as originally drawn
up and presented to residents of the Brandywine Project
area was rejected due to substantial citizen opposition.
The Plan, which was designed to preserve the water and
land resources of the Upper East Branch of the Brandywine
Creek, was by no means a conventional plan. As an
approach to water resources planning, the Plan proposed
to test the efficacy of certain legal controls in regu-
lating the effects of spreading urbanization on the
natural environment (especially water resources). The
Plan's novelty rested primarily on two factors. Fore-
most was the degree of permanence given to voluntary
citizen 'attempts at protecting their water resources
through the use of deed restrictions, for which the land-
owners were to receive compensation. In addition, plans
for land use controls were based upon extensive technical
data.
The restrictive and voluntary nature of proposed controls
on land uses called for considerable citizen involvement.
Implementation would have been undertaken only if the
supervisors of each of the eight townships involved recom-
mended approval of the Plan to the County Commissioners.
Approval, dependent upon positive citizen response, was
not forthcoming.
This section is based upon two interviews of a sample of
residents of the Upper East Branch Watershed, one con-
ducted during the preparation of the Plan and the other
after rejection of the Plan several years later. These
interview surveys were designed with several objectives.
The initial survey was intended (a) to provide an in-
formation base against which change within the target
area could be monitored; and (b) to elicit citizen atti-
tudes and preferences so that they might be reflected in
the Plan's recommendations. The findings of this first
survey are recorded within The Plan and Program for the
23
-------
Brandywine. The second survey was intended to determine
(a) the reasons for the Planrs lack of public acceptance
and (b) the effects of the planning experience on the
attitudes and knowledge of the basin*s residents. Since
the survey design was similar in both instances, changes
in the residents1 attitudes toward the environment and
growth during the five year period may be measured.
The rationale of the survey is based upon two requisites
for a successful planning venture: the persons affected by
a plants provisions have to both (1) perceive the need for
the plan and for realizing its objectives, and (2) be suf-
ficiently familiar with and amenable to various regulatory
controls so that they may lend their support or construc-
tive criticisms to implementing proposals.
An important criterion for selection of a location for
the present project specified that development be at
least five to ten years away. While this was an ideal
stage at which to introduce a program to accommodate de-
velopment and growth in the watershed with a minimum of
damage and disruption to the water, scenic and other
natural resources of the area of value to its residents,
it created problems of timing. The researchers wondered if
people can see a need for planning before problems arise or
whether they must wait until it is "too late" to plan for
them.
In the case of the Brandywine basin, community response de-
pended upon recognition of: (1) the problem - that develop-
ment threatened the existing nature of the watershed com-
munity ; (2) the immediacy of the problem, and the relation-
ships between the problem and the need to plan for it - that
this threat could be countered by effective and thoughtful
planning measures. Furthermore, in the case of the Brandy-
wine, those planning measures involved restrictions on the
use of property. Each resident, therefore, had to be con-
vinced that the benefits conferred by the Plan on him per-
sonally and/or to future generations outweighed the costs.
In order to determine the attitudes and preferences of the
UEB's residents in regard to the basin's future development
24
-------
and environmental quality, several research areas were
delineated. These included (1) perceptions of and atti-
tudes toward growth and the natural environment, (2)
knowledge of and attitudes toward land development regu-
lation and other local governmental intervention, and
(3) understanding of and response to the Brandywine Plan
and impact of the Plan on the attitudes of residents.
The findings relative to these three research areas are
presented in the three subsections below, following a
brief description of the sample and survey design.
Sample Design and Procedure: 1966 and 1971
The original survey in 1966 was an area sampling of the
residents of the UEB (Upper East Branch of the Brandy-
wine) watershed.
To choose households for interviews within a selected
segment, defined as a portion of a census enumeration
district, a sampling rate was applied based on the 1960
estimated number of households. This rate yielded seven
households per segment. The procedure was self-weighting
and it assured that each household within a segment had
an equal change of being selected. In addition, for
future purposes the use of a sampling rate rather than a
quota for each segment was to guarantee that the sample
would be adjusted in size for an increase or decrease in
population since 1960 (assuming an even growth rate
throughout the UEB, which proved not to be the case).
The number of households designated for interviews was
larger than the total number of interviews needed to
allow for refusals and non-contacts. In each household
either the male or female head was interviewed. The sex
of the person to be interviewed was determined in the
following manner: if there was only one household head,
he or she was interviewed. If there were both a male anti
female head, the sex of the person to be interviewed was
determined using a random method yielding an equal balance
between male and female. Ultimately a total of 165 per-
sons were contacted and interviewed, approximately 12 per-
cent of the basin's households.
25
-------
The universe of intended respondents for the second
interview, conducted in 1971, consisted of those respon-
dents in the first survey who were still residing within
the basin.
The decision to restrict sampling to only the population
residing within the basin continuously since 1966 was
based upon a number of important criteria. Comparative
analysis of attitude change over a five year period
restricted analysis to the original sample. Determin-
ation of residents1 attitudes, knowledge and understand-
ing of the Brandywine Plan, and any effects of the
project as a whole required that the target population
live in the UEB at least since the early part of 1968.
Acceptance of the Plan and efforts of the project to
educate the community about land use controls and the
need for planning effectively involved only landowners
within the UEB. Time and financial constraints, in
addition, led to the narrowing of potential respon-
dents to that population yielding the most crucial infor-
mation, i.e., the 1966 sample. Since that sample in-
cluded renters, they were excluded only for purposes of
analysis of the Plan. Essentially the sample design was
a panel design, capitalizing on the ability to follow
a specific population over a five year period.
A total of 82 persons, or approximately one-half the
original sample, were interviewed in the second survey.
This figure represents approximately 6.2 percent of the
present households in the watershed and approximately
8.2 percent of those households living continuously in
the UEB since 1966. Statistical tests indicated that
respondent characteristics were similarly distributed for
both the 1966 and the 1971 sample.
Perception of Growth and Environmental Changes and their
Valuation
This subsection investigates perceptions of change within
the watershed by UEB residents. As such, it gives an in-
dication through their eyes of what was happening and how
they felt about it. Questions were asked pertaining both
to the natural environment and man-made alterations in the
environment as a result of growth.
2*
-------
In order to elicit perceptions of the extent and type
of growth in the watershed, the following question was
asked: "Has there been much growth in the area in the
past five years? Where? What kind?" Answers to the
question "how much" were as follows:
No growth 11 percent
A small amount 16 "
Steady 40 "
A great deal 28 "
Do not know 5 "
The responses, which must be interpreted as subjective
assessments by the interviewees, indicate that most per-
sons felt the area had grown at a steady pace. Respon-
dents were not asked this question in 1966, so there is
no data for purposes of comparison. However, the fre-
quency with which persons responded to this question by
volunteering that the rate of growth for the years 1966-
1971 was much higher than for the proceeding years in-
dicates that development activity in the watershed be-
came more noticeable after 1966.
The phrasing of the question "how much growth" was pur-
posely vague so as to derive information not only on the
amount of perceived change within an area, but also to
measure the respondents1 sensitivity to those changes.
If the assumption is that everyone is equally sensitive
to new growth, the responses to the question "how much"
should vary by township, since it is known that there
were wide differences in rates of growth among the seven
townships. Analysis proves this assumption false; there
are no observable differences in responses by township.
Such a result indicates that perhaps people are most
sensitive only to new growth in their immediate vicinity
and/or that persons become accustomed to new develop-
ment, becoming increasingly tolerant of each new dwel-
ling. In other words, one new house on a road in a
sparsely developed area may seem as great a change to
the neighboring farmer as would a string of five new
homes to the person in a more densely populated area.
The most frequent response to "what kind of growth?"
27
-------
was "houses," with 64 persons (78 percent of the sample)
mentioning some form of residential structure (either
"residential development" "scattered homes," "trail-
ers, " or "apartments"). In terms of type of residence,
48 percent of the respondents answered "residential
development," whereas 30 percent mentioned "scattered
homes." Table 1 shows the distribution of the respon-
dents' perceptions of growth in the past five years by
type as well as their views as to the probable types of
development in the future.
TABLE 1: UEB Residents' Perceptions of Growth by Types,
for the Past 5 Years and for the Future, 1971
"What kind of growth has occurred in
the area in the last 5 years?"
Response
Residential
development
Trailer parks
Industry
Commercial
Scattered homes
Dam project influence
Services resulting
from growth- -roads ,
parks, etc.
Apartments
Cluster housing, Puds
Don't know
TOTAL
# of
responses
39
14
12
3
25
12
1
8
0
7
121
% of
sample
48
17
15
4
30
15
1
10
9
"What kind of growth do
you think will occur in
the future of the UEB?"
# of
responses
48
9
7
7
4
17
3
1
2
i
i
12
i
110
% of
sample
59
11
9
9
5
21
4
1
3 -
15
28
-------
The next set of questions attempted to probe percep-
tions of forces of change in the watershed. Indica-
tions of change in the composition of the UEB population
are manifested through the questions "Who is buying?"
and "Who is selling?" Although the large number of per-
sons who responded "don't know" indicates that answers
to this question are probably highly intuitive, the
responses do reveal a definite trend. Farmers and older
persons are perceived as leaving the area, while younger
people—persons predominantly from the nearby cities and
suburbs to the east, but also from Philadelphia and the
immediate vicinity—are perceived as in-migrants. It
should also be noted that developers and speculators are
mentioned, but with much less frequency than persons
buying or selling residences. (See Table 2)
When asked "Why are they selling?", the simultaneous
plight and power of the farmer in the face of develop-
ment becomes apparent. His inability to make farming
profitable and/or the desertion of the farm by his off-
spring, combined with the value of his land for resi-
dential development frequently leave the farmer no choice
but to sell. Because most of the people felt that the
farmers wanted to hang on for as long as possible, they
stated that large landowners who were forced to sell
usually sold off roadside lots, one at a time. In fact,
however, several farmers had sold sizeable holdings in
the past five years. In view of this, how could the resi-
dents maintain that large properties were unlikely to
change hands? This is a question of some importance,
because, as we shall see when we come to the discussion
of the reasons behind the rejection of the Plan, many
opposed it as unnecessary. They were convinced that
farmers were not about to sell off their entire holdings,
and that farmers could protect the natural resources on
their property better than outside planners possibly
could.
In order to evaluate the relative importance of factors
which might induce landowners to sell their property,
they were asked to rank each of five different factors in
both the 1966 and the 1971 surveys. These factors in-
cluded (1) higher real estate taxes, (2) considerable
29
-------
TABLE 2: Perceptions of Buyers £ Sellers of Land
in the UEB, 1971
^
"Who is buying?"
t of ;% of
respon- i respon-
Response ses I ses
1. Young people 4
5
2. Persons from ;
other cities, 22 27
suburbs
3. Local people 12
15
4. Speculators,
investors,
monied peo- 6 7
pie
5. Developers 6
6. Philadel-
phians 13
0 Don't know 32
~ ~
TOTAL 95
7
16
39
"Who is selling?"
# of
respon-
Response ses
1. Farmers 31
2. Speculators, 11
investors
3. Older people 6
4. Real estate 6
0 Don't know 34
TOTAL 88
% of
respon-
ses
38
13
7
7
41
"Why are they sellin??"
# of
respon-
Responsc ses
1. Old people --
maintenance 5
2. Property
taxes 4
3. Retire from
farming —
nobody to
take over 7
4. Farming not
profitable 6
5. JciJ transfers 5
6. Offers for
lend 23
0 Don't: !:no\; 42
TOTAL 92
% of
respon-
ses
s
,>
5
9
-)
6
20
51
-------
building in the area, (3) a good offer, (4) a change in
personal or family situation, and (5) none of these
factors or other unspecified reasons.
Responses were obtained only from those who own the land
on which they reside. Results of the original survey
indicated that "change in personal or family situation"
was overwhelmingly the most important influence in the
event of a sale. The other three reasons were very
close in numbers of persons indicating them as a first
factor, with "a very good offer1' second most important,
"higher real estate tax" third, and "considerable build-
ing in the area" last. In the intervening five years,
a considerable shift in sentiment has occurred, with
"higher real estate tax" advancing 14 percentage points
at the expense of the other responses, although person-
al factors remained the most important reason to sell.
When analyzed in terms of size of landholding, large
landowners were no more sensitive to taxes than were
small property owners.
The exurban character of the UEB was reflected in the
1966 results which show that compared to residents of areas
with a high degree of urban development, UEB residents
were more sensitive to building in the area and less re-
sponsive to offers to buy their land. Analysis of second
responses of reasons to sell reveal an increased willing-
ness to respond to offers for land and an increased toler-
ance to building in the area. As such, watershed resi-
dents are becoming more like their more urban counter-
parts.
t
Respondents1 identification with the existing framework
of scattered and dispersed community centers also re-
mained the same after five years. They were asked, in
both the 1966 and the 1971 survey, if they regarded their
residential location as part of a community. Those re-
sponding affirmatively were further asked to identify the
geographic center of their community.
In both surveys, approximately three-fourths of the re-
spondents identified with a community, one-fifth indicated
that they did not, and the remainder were uncertain.
31
-------
This result led the researchers to two conclusions.
First, growth has as yet had little effect on the visi-
ble community structure of the area, and therefore has
not led residents to perceive the threat which growth
might exert upon the social status quo. Second., the
seeming stability of identification with the existing
dispersed community centers hinders a recognition by
area residents that they are all in the UEB water re-
sources boat together.
A third subject interviewees were questioned about con-
cerned changes in the natural environment in the past
five years. When asked directly "Has the natural en-
vironment of the area changed in the last five years?",
the majority did not feel that it had: approximately one-
half of the sample responded in the negative, two-fifths
felt that the natural environment had changed, and the
remainder were unsure. Those who responded affirmatively
were asked what caused the change. The results are as
follows:
Percent of
Response No of persons respondents
Development 21 66
Less farming 1 3
Pollution 15 47
New roads 1 3
Trailer parks 6 19
Other 2_ 6
Total 46
For those who felt the environment had changed, two-thirds
attributed the change directly to development, while the
other respondents indirectly indicated the influence of
growth. Over 90 percent of those persons sensitive to
changes in the environment saw either "a steady" or "a
great deal" of growth in the watershed.
Respondents were also questioned in both surveys about
their perceptions of their immediate environment. In
addition, they were asked to distinguish those features
that they liked and those that they disliked. Responses
32
-------
indicate that there was a significant change in the ways
people described their environment—fewer persons spoke
in 1966 in terms of the natural environment or neighbor-
hood characteristics, while the number of persons de-
scribing the area around their home merely in terms of a
value judgment (i.e., "this is a good place")increased.
One drawback to assigning any conclusive meaning to this
difference is the fact that in the latter survey, there
were quantitatively fewer responses and many more value
judgments in lieu of descriptions, indicating that the
original interviewers pressed people harder for responses.
When changes in what respondents like and dislike about
their area are combined with the shift in the manner in
which they described their environment, a clearer picture
begins to emerge. There was very little change in what
people said they liked, with two important exceptions—
they mentioned the beauty of the area 40 percent less fre-
quently the second time around and the rural atmosphere
30 percent less frequently. These statistics, together
with those concerning the decrease in persons describing
their area in terms of the natural environment, indicate
a definite decline in the immediacy and importance of the
natural environment to our respondents. Since the people
interviewed are the same, and there is no reason to sus-
pect that their desire for and enjoyment of the natural
environment and rural beauty has changed in five years,
it may be speculated that the natural environment is not
as important a factor in people*s lives now as it was five
years ago because of changes in the environment itself.
Among those characteristics that were disliked only
"development" was cited at a considerably greater rate
in 1966. When taken together with the decrease in per-
sons describing their area in terms of the natural en-
vironment, the indication is that people are rarely more
satisfied with their area than they were five years ago,
and are frequently less so, primarily because of the de-
velopment which has taken place.
It is clear that many persons felt that changes in the
natural environment were a result of development within
the area. In order to obtain respondents^ views as to how
they would accommodate new growth with a minimum of harm
-------
to the environment, they were asked/ "How should growth re-
late to the natural environment?" The researchers were
most interested in answers that would indicate whether or
not a person might be in favor of plans to mediate the ef-
forts of growth on the natural environment, and a recongi-
tion of the need for water resources planning. (Table 3)
TABLE 3: "How Should Growth Relate to the
Natural Environment?" 1971
No. of % of
Response responses sample
A. We must accept growth 4 5
B. Use land for its best
natural use 14 17
C. Build cluster housing 2 2
D. Growth destroys the
the natural environment 11 13
E. Growth has no effect on
the natural environment 2 2
F. Do not overpopulate 21 26
G. Limit groxjth to protect
water resources 18 22
H. Maintain open space 12 15
I. Don't l.now 20 24
Total number of responses 104
The question proved to be a. very difficult one for most of
the interviewees. One-fourth of them had no answer.
Another 25 percent felt that there was either no way or
no need to accommodate growth to the environment (those
persons who responded with "growth destroys the natural
34
-------
environment" and those who said "growth has no effect on
the natural environment"). Although very few of those
respondents indicating that there was a relationship be-
tween growth and the environment revealed a sophisticated
understanding of the environmental problems involved in a
developing area, most residents were cognizant of the prob-
lem to some degree, usually because of concrete experiences
in the area with problems of water supply, pollution, waste
of land/ and elimination of open space. Their answers
tended to reflect the present ideology of UEB planning in
attempts to cope with these problems, i.e. the use of large
lot zoning and the intentional lack of sewerage to keep
the population down. The most frequent responses were
"donlt over-populate" and "limit growth to protect water
resources," allowing only as much as the water supply can
handle without public sewerage.
At the time of the second survey, development did not
appear to pose a significant threat to UEB residents.
Most of them saw changes, but, for the majority, growth
had little effect on their view with respect to either
community identification or the natural environment. They
were not, however, complacent about the future. Most of
them felt that development would continue, and many per-
sons expressed dissatisfaction with the prospect of such
a situation. In order to provide some dimensions to this
reaction, interviewees were asked to respond to three
development scenarios, (1) the area unchanged, (2) a
"small" amount of development and (3) a subdivision next
door.
The large percentage of, respondents who indicated that
they would be satisfied if growth merely continued at its
present pace would seem to imply an acceptance of the
present rate of development. (See Table 4} This was often
reflected in residents1 comments that, although they would
prefer to have the watershed remain as it is, they realize
that increases in the population makes a certain amount of
growth inevitable. Only one-quarter percent of the sample
would be satisfied with a subdivision next door, however,
and even this figure may be too high in view of the number
of persons who stated that an adjacent housing project
would not bother them because they had enough land to
35
-------
TABLE 4: Reactions to Development Scenarios, 1971
Development
Scenario
Area remain
the same
Small amount
of development
Subdivision
next door
Reaction
Satisfied
93%
77%
26%
Dissatisfied,
but stay
5%
20%
44%
Move
away
1%
1%
28%
Don't
know
2%
2%
2%
protect themselves from such an eventuality. Those able to
afford large acreage possess what is in effect their own
personal planning device—insulation through distance.
Even those who were inured to development would prefer none
at all. A number of persons who were dissatisfied with
the watershed felt that the area had already changed too
much to suit them. The majority of the people of the UEB
were born and raised in rural areas, and they wanted the
region to remain as it was. Despite the fact that com-
munity structures are still essentially intact and people
are confident that both they and their immediate neighbors
will hold the line against growth, the survey results in-
dicated that watershed residents were able to see changes
and were beginning to feel; the effects of development,
most noticeably in the form of rising taxes and increasing
water pollution. What they would be willing to do in '
order to meet these problems hinged on their understanding
and acceptance of land use controls. This is the subject
of the next subsection.
-------
Familarity V7ith and Attitudes Toward Land Use Controls
What kinds of trade-offs are residents willing to make
between a landowner's right to use his land as he pleases
and the acceptance of controls for the benefit of natural
preservation and accommodation of growth? In an attempt
to answer this critical question, our research was divided
into: (1) an examination of community familiarity with
various land use controls and any changes in familiarity
over the five year period? and (2) general community
attitudes toward the proper roles of government and land-
owners in the achievement of ordered development.
The portion of the 1966 attitude survey concerned with
this question was designed for use by the project staff
to anticipate support for and resistance to the Plan/ and
to investigate reasons for reactions toward the use of
specific legal controls. In the present analysis this
concern is expanded; change within the past five years is,
in part, a measure of the impact of the project. Did it
succeed in educating the community to alternative land
use controls—especially to the use of a compensable con-
trol, in this case conservation easements? If area resi-
dents are more familiar with mechanisms of control, are
they more likely to accept such controls?
At the time of the first survey in 1966, planning and land
use restrictions were a recent phenomena in the UEB. Only
three of the townships in the basin were zoned, and those
with the largest populations were among those without
zoning. A number of townships were, however, in the pro-
cess of developing zoning regulations, an effort which
was surrounded with considerable controversy. By 1971
all but one of the townships had adopted zoning ordinances
and completed comprehensive plans.
Aside from publicity associated with the Plan, the ex-
perience of UEB residents with easements per se had been
limited to utility and railroad rights-of-way. These types
of easements are rarely contested as they are purchased
under the threat of the use of the power of eminent domain.
In this regard they differed greatly from the conservation
easements proposed in the Brandywine Plan. Apart from the
37
-------
obvious differences in the purpose and content of these
deed restrictions, the Plan proposed that the easements
were to be strictly voluntary, even though the public
purpose aspect of the Plan would have allowed the use of
eminent domain.
Both the 1966 and the 1971 survey contained a series of
questions pertaining to knowledge of three means of con-
trolling land use: zoning, comprehensive planning, and
conservation easements.
As could be expected, of the three controls in question,
people in the UEB area were most familiar with zoning.
(See Table 5) In both 1966 and 1971, almost all of the
respondents indicated some familiarity with the idea of
zoning: approximately one-half were "very familiar"
with zoning and 40 percent "just heard of it." The
significant changes occurred in expressed familiarity
with comprehensive planning and conservation easements.
The increase in the number of persons who heard of
comprehensive planning was great—38 percent more per-
sons had heard of comprehensive planning in 1971 than in
1966. There was an increase of one-third in "the very
familiar" category of comprehensive planning, and an
increase of one-half in the "just heard of it" category.
The most significant change in exposure within the five-
year period 1966-1971 was represented by the 50 percent
increase in those who had heard of conservation ease-
ments. Those who felt they were "very familiar" with
the concept increased approximately 150 percent—from 11
to 27 respondents. This increase could in large measure
be attributed to the Brandywine Plan.
To determine the reliability of responses, respondents
were further asked if their township was zoned, if it
was engaged in comprehensive planning, and if conser- ,
vation easements sounded like a good idea.
In regard to zoning, in 1966 as many respondents knew
correctly whether their township was zoned as did not.
(See Table 6) Both categories represented approxi-
mately 40 percent of those who had heard of zoning.
38
-------
TABLE 5: Familiarity with Zoning, Comprehensive Planning
and Conservation Easements, 1966 and 1971
Zoning:
1966
1971
Comprehensive
Planning:
1966
1971
Conoervatiofi
Easements :
13 CO
I "71
"Very
familiar"
ji
V
%
44 53.5
45
20
26
11
27
55
24.5
31.6
13
33
———.
%
change
-
+ 2.3
-
+ 33
-
+ 150
"Just heard
of it"
"»r
32
33
20
29
31
35
%
39
40
24.5
35.4
38
42.5
%
change
-
+ 3.2
-
+ 45
-
+ 13
"Never hecurd
of it"
V
6
4
42
27
40
20
7.
7.5
5
51
33
49
2'-,. 5
7,
change
-
-33
-
-36
-
-50
TOTALS
#
82
82
82
82
82
82
%
100
100
100
100
100
100
39
-------
TABLE 6: Township Zoning Status and Responses to:
"Is your township zoned?"/ 1966 and 1971
Responses
Summary
% Correct responses
% Incorrect responses
% Don't know
Total
1966
40
43
17
100
1971
75
18
7
100
These figures were changed substantially in 1971. In the
correct response category, three-fourths of the respon-
dents familiar with zoning answered correctly/ one-fifth
incorrectly. This seems to indicate that although there
was no change in responses directly indicating a respon-
dent's familiarity with zoning, there was a significant
increase in their awareness of the control as it per-
tained to them.
The picture in reg-ard to comprehensive planning is more
difficult to assess. Most planners would view comprehen-
sive planning as an ongoing process dependent not so much
on the existence of a comprehensive plan as on a continu-
ous reevaluation of the Plan by a staff or consulting
planner. Wiile it is true that the UEB as a whole has
engaged a. regional planning consultant/ he has only the
power to advise. The power to plan and approve sub-
divisions and the like lies with the individual townships,
As to the existence of a planner at the township level—
there is no such animal in the UEB. Therefore the re-
searchers attempted to use the comprehensive plan as a
guideline for analysis.
The data indicated that the overwhelming tendency was for
a respondent to state (if he responded at all)/ that the
township was engag'ed in comprehensive planning. The re-
searchers1 impression was that most respondents did not
-------
understand the rather technical term and thought of
"comprehensive planning" as performing planning tasks,
i.e. building roads, schools, subdivision approval, etc.,
as they arose. Unfortunately the yes/no nature of the
response did not enable an exploration of the degree of
community sophistication with the concept to any greater
extent at this point in the analysis.
In the case of conservation easements, in both 1966 and
1971 the majority of respondents holding opinions on
conservation easements thought that it sounded like a
good idea. (Table 7) There was7 however, a statis-
TABLE 7: Attitudes Toward Conservation Easements, 1966 and 1971
.. . - ........
I
Responses
In 1966
In 1971
^
Good idea
#
18
31
%
43
50
7o
change
-
+72
Bad idea
#
6
21
7o
14
34
7,
change
-
+250
Mixed
feelings
#
1
3
7o
2.3
5.0
Don't
know
#
17
7
7.
40
11
7.
change
-
-59
TOTAL
#
42+
62+
7.
100
100
tically significant change in the distribution of answers.
The proportion of those thinking it was a good idea to
those who felt it was a bad idea declined from 1966 to
1971. In 1966 it was 3:1 in favor of the idea and in
1971 it was 3:2 in favor of the idea. While those who
favored the concept of .conservation easements increased
72 percent in five years, those who disliked the idea
increased 250 percent.
In addition, respondents were further questioned about
reasons for their opinions about conservation easements.
(See Table 8)
Table 8 indicates a substantially greater percentage of
respondents did not know why they felt as they did about
conservation easements. At the same time, a lower per-
centage of respondents gave vague responses such as
41
-------
FABLE 8: Reasons for Opinion About Conservation
Easements, 1?66 and 1971
Opinion
Good Idea
Mixed
Feelings
Bad Idea
TOTAL
Response
1. Conservation/v;ater supply
2. As a mechanise, forceful,
more fair than zoning
3. Increased market value
4. Good for some, bad for
others; selective re-
strictions
5. Doesn't affect everyone
equally; property tax
burden on some
6. Landowner's rights
7. Market value decreased
8. Problems of administering
and use
9. Property ta;: anyway
10. Don't know:
Good idea
Bad idea
Mixed feelings
1966
# 7.
14 50
6 21,4
2 7.1
3 10.7
-
-
2 7.1
1 3.5
27 99.8
1971
# 7,
17 30
£ 15.75
3 >N
V 8.75
2J
12 21
2\
»
1 )-8.75
2 )
4 >15.75
2J
57 100
7.
change
+ 217.
+ 507.
+3007*
i
"conservation is a. good thing." There was a 66 percent
increase in absolute terms in those categories of respon-
ses which were deemed to be more explicit reasons for
thinking conservation easements were a good idea. The
corresponding distributional decline in this group is
relative: (1) to the increase in those who now held
42
-------
opinions about conservation easements without being able
to give a verbal reason for doing so, and (2) the per-
centage increase in those who now feel the deed restric-
tions are a bad idea. The increase in those antagonistic
to the notion of conservation easements was greatest for
those holding a belief in a landowner's right to do as he
pleases with his land. There were four times as many
respondents holding this view in 1971 as in 1966. It is
noteworthy that those now holding negative opinions about
this form of land use control speak strongly about a
belief in the absolute rights of the landowner in seeming
reaction to the Plan proposal. This is in sharp contrast
to the explicit reasoning of those who adopted the posture
of the Plan's proponents.
In sumx many more people had become familiar with conser-
vation easements from 1966 to 1971. However, at the same
time many more people also became entrenched in the belief
that, in theory, easements were bad because they took away
the right of a landowner to do as he pleased with his land.
To the extent to which we could relate socioeconomic char-
acteristics of the sample to familiarity and opinions on
conservation easements, inferences could be drawn about
future efforts to introduce these concepts to a community.
In the analysis of the first questionnaire it was stated
that to the extent that it can be determined from the small
sample, opinion on conservation easements does not seem in-
fluenced by ownership of land, or the size of parcel owned.
There was some evidence, however, that landowners are bet-
ter informed about conservation easements than are those
who do not own the land they live on. In 1971 the sample
showed more definite relationships.
An analysis of the personal characteristics of those who"
stated that they were familiar with the concept of conser-
vation easements revealed that there was still no relation-
ship with where a respondent grew up and his income. How-
ever, when familiarity with easements was cross-tabulated
with size of parcel owned in 1971, a significant relation-
ship emerged. Those with larger parcels of land tended to
be more familiar with easements than were those with smal-
ler parcels of land. (See Table 9) There was also some
43
-------
TABLE 9: Familiarity with Conservation Easements
by Size of Landholdings, 1971
Size of
Parcel Owned
Under 2- acres
2-10 acres
11-51 acres
51+ acres
TOTAL
Very
Familiar
# 7.
6 23
9 35
6 23
5 19
26 100
,
Just
Heard of 'It
•,r
16
6
3
2
27
"7
60
22
11
7
Never
Heard of It
# %
11
3
-
2
100 i 16
i
69
19
12
100
TOTAL
S %
33
18
9
9
69*
48
26
13
13
100
t
\ |
Renters i 1 j 8
4
.! "
*Lan«lovr.ors only
indication that landowners as a group were still better
informed than those who do not own the land they live on.
Familiarity with conservation easements also proved to
be significantly correlated with educational attainment.
(See Table 10) The extent of familiarity increased with
the level of educational attainment, and statistical
tests proved that this relationship existed independent
of size of landholdings.
Knowledge and understanding of the various land use con-
trols are not necessarily related to a resident*s re-
actions to such controls. In order to provide some dimen-
sions to the acceptability of the idea of conservation
easements/ respondents were further asked a series of
questions designed to measure their attitudes toward the
use of easements. Although no relationship was found to
exist among the various social characteristics of the
44
-------
TABLE 10
Familiarity with Conservation Easements by Educational
Attainment for Landowners,1971
Highest School
Attended
Elementary
High School
College
TOTAL
Very
Familiar
# %
2 8
14 54
10 38
26 100
Just Heard
of it
# %
3 11
Never
of
Heard
it
# %
7
18 67 j 5
6 22
4
27 100 j 16
44
31
25
100
i
TOTAL
# %
12 17
37 54
20 29
69*100
*Landowners only
population and the opinions they held on conservation ease-
ments in 1966, this was no longer found to be the case in
1971. Table 11 shows that those who owned larger parcels
of land were much more opposed to easements than were smaller
landowners and renters.
TABLE 11
Opinion on Conservation Easements by Size
of Parcel for Landowners, 1971
Opinion Renters
Good idea
Bad idea
Don't know,
undecided
TOTAL
7
1
5
13
\ Less than '2-5 ; 6-10
2 acres
i
: 16
; 3
acres
2
6
acres
1
Q
i
16 4.2
; 35 12 6
: 11-50
: acres
3
| 5
: i
! 9 •
50+
acres
4
3
2
9
TOTAL
31
21
30
82
An open-ended question was used in the first survey to
determine the relative importance which residents of the
UEB attached to natural environmental preservation as op-
posed to the rights of landowners to use their land as
45
-------
they wished. The data from the 1966 survey indicated that
Brandywine residents were equally divided on this issue,
with approximately one-third of the sample stressing each
of the positions.
In 1971 respondents were asked who, if anyone, held the
power to control growth in the Brandywine area. One-fifth
of the respondents were uncertain or did not know, and
another 6 percent said no one did. Government at all levels
was mentioned by 52 percent of the respondents (planning/
zoning, 28 percent; Board of Supervisors, 33 percent; county,
1 percent). The remainder of the respondents, approximately
one-fifth, referred to non-government controls, primarily
by landowners and private institutions.
When asked if growth should be controlled, the majority,
more than three-fourths, felt that it should be. Opinions
about who actually controls growth are compared with respon-
ses regarding who should control growth in Table 12.
TABLE 12
Opinions Regarding Who in Fact Does and Who Should
Control Growth in the Brandywine Basin,1971
Response
Actual Controli Who Should Control
No one
Planning/Zoning
Other Government
Landowners
"The People"
Other
Don ' t Know
No.
5
23
30
11
8
6
16
Percent*
6.1
28.0
35.6
13.4
9.7
7.3
No.
4
12
37
4
27
3
19.5 j 7
1
Percent*
4.9
14.6
59.6
4.9
33.9
3.7
8.5
1
* Percent column doesn't add to 100% because of multiple
responses by some respondents.
46
-------
The data show that fewer respondents favor control over
growth by planning and zoning commissions and land-
owners than believe that these groups actually do con-
trol growth. On the other hand, more respondents prefer
control by government (other than planning and zoning)
and by "the people'1 than believe that these groups actu-
ally do have some control. In absolute terms, govern-
ment (other than planning and zoning) and "the people"
are most frequently preferred to control growth (60 and
33 percent respectively).
Respondents were also asked if they thought their local
government was responding effectively to the challenges
of growth and protection of environmental amenities.
Twenty-five percent of the people interviewed made nega-
tive references to the effectiveness of local government
in meeting the challenges of growth and water protection.
Some indicated reasons of corruption (5 percent), lack of
concern (7 percent), or lack of enforcement (3 percent).
Six percent of the people interviewed were undecided and
25 percent did not know if local government was effective
or not. Only 45 percent of those interviewed felt that
local government has been effective in meeting such chal-
lenges, some mentioning specifically sewage and water
problems (13 percent), and re-zoning (22 percent).
What of mechanisms to deal with possible future problems
before they arise? The following question was asked:
"Should we set up mechanisms to deal with possible future
problems or should we rather solve our problems as they
arise?" Only half of those interviewed indicated that
such mechanisms should be set up. Forty-three percent of
the residents said that problems should be taken up -as
they arise.
Ultimately the researchers were interested in determining
those specific means of controlling growth to achieve
environmental objectives that were acceptable to the
Brandywine residents. They were asked to respond to each
of five possible means of control: no action, private
agreements, zoning, easements, and eminent domain. (Table
13).
47
-------
TABLE 13: Responses of Brandywine Residents to Five
Means of Development Control, 1971
Compensable Regulation
Response
Acceptable
Unacceptable
Undecided
Don't know
TOTAL
No
Action
# 7»
9 11.0
71 86.5
2 2.5
« .
82 100
Private
Agreement
# %
28 34.1
48 58.5
4 4.9
2 2.5
82 100
!
Zoning
# 7.
65 79.2
11 13.4
2 2.5
4 4.9
82 100
Easements
# 7.
21 25.6
47 57.4
7 8.5
7 8.5
82 100
tminent
Domain
JL 11
V la
11 13.4
57 69.5
8 9.8
6 7.3
82 100
As the data show, approximately seven-eighths of the re-
spondents felt that some action should be taken to con-
trol growth.
The private agreement mechanism was explained as a legally
binding agreement between neighbors to restrict develop-
ment in any way specified (such as deed restrictions).
The majority of respondents found this to be unacceptable
(58.5 percent). It evoked responses such as,, "Here today,
gone tomorrow," and "Only cause trouble, don't hold up."
One respondent cited a case where neighbors agreed not to
subdivide their land to less than four-acre lots. One
party broke the agreement when he placed four houses on a
lot without subdividing it. This is not technically legal;
however, unless one is willing to enforce a private cove-
nant, its power is nil. A substantial number of others
(34.2 percent) felt it was a good mechanism. Some of these
said it was the only way to control growth; others stated
that it could be used in conjunction with the other mecha-
nisms in order to best control growth.
Zoning was the most popular form of control on growth.
Seventy-nine percent of the respondents indicated that they
endorsed zoning. Many times, however, responses obtained
48
-------
were reluctant like "I suppose you need it." Early
attempts to institute zoning had been met with opposi-
tion and long fights within the townships. Zoning now
appears to be accepted as a fact of life.
Easements and eminent domain, both forms of compensated
public regulations are the more controversial forms of
control. The percentage of respondents willing to have
easements was 25.6, while 13.4 percent were in favor of
eminent domain. This appears to be where most residents
draw the line as to what is acceptable—zoning being
acceptable whereas the latter two are not.
Those who favored easements gave a greater number of
favorable responses in general to the acceptability of the
various mechanisms proposed by the question. It appears
that these people were much more flexible about the land
use controls that they were willing to accept than those
who were opposed to easements.
Reaction to the Plan and its Impact on Attitudes
The Brandywine Plan was not merely an attempt to utilize
innovative land use controls in order to protect water re-
sources; it was also an effort to educate the community
in the use of conservation easements as a way to insure
sound development in the context of water resources plan-
ning. As an educational process,, the Plan was presented
to the community in a number of ways.
In addition to personal visits to some residents1 homes,
the Plan was covered by all the local newspapers and radio
station WCOJ, and presented in public meetings in each
township. All landowners in the watershed received three
publications: a copy of the Watershed News which in-
cluded a five-page supplement answering questions on the
Plan; a 50-page copy of the "Preliminary Plan and Program"
which included a map of each landowner's own property; and
a booklet entitled "The Brandywine Plan," a 28-page sum-
mary of the final plan to be voted on.
No vote was ever taken; the Plan was literally shouted
down at several public meetings. Although it was evident
49
-------
that there was substantial opposition to it, it was not
at all clear at that time why the Plan failed to be
adopted. This section of the report undertakes to ex-
amine this question. It also attempts to assess what
impact the Plan may have had, despite its failure.
The first task was to determine how well Brandywine resi-
dents understood the Plan. In this regard, three ques-
tions were asked: "Who proposed the Plan?"; "What was
your understanding then of what was being proposed for
the future of the area?"; and "How were these proposals
to be achieved?".
The responses revealed that there was great confusion and
misunderstanding about who was sponsoring the plan. Over
one-half had no idea who proposed the Plan and only one-
fifth answered correctly. The fact that so many persons
did not know who was advocating the Plan may have been a
factor in their distrust of it.
Although no one fully stated the major principles of the
project, approximately one-third of the sample knew that
one of the goals was the preservation of water resources,
and one-twelfth mentioned preservation of open spaces.
More respondents answered in terms of the specific pro-
posals. Half of the interviewees could describe them with
varying degrees of completeness, with 20 percent of the
sample mentioning only that the Plan restricted building
near the creek, 16 percent indicating greater understand-
ing, and 14 percent of the sample revealing full under-
standing of the Plan's proposals. On the negative side,
one-fifth of the sample had never heard of the Plan.
Almost one-half of the sample did not understand the pro-
posal at all.
There were two variables which were related to understand-
ing of the Plan. The following categories used to guage
understanding were tested against educational level and,
amount of land owned.
1. No mention of restricted building; plan for
conservation; in general, little grasp of the
proposals.
50
-------
2. Restrictions on building near the creek.
3. Restrictions on building and details.
4. Full understanding.
A chi-square test indicated that there was a significant
relationship between amount of formal education attained
and understanding of the Plan, with understanding in-
creasing as educational level rises. (Table 14)
TABLE 14? Understanding of the Plan by Level oC
Education, 1971
Understanding
of Plan
1
2
3
4
TOTAL
Education Level
Attended
Elem. School
1L e/
" '»
6 50
3 25
2 17
1 8
12 100
Attended
High School
« °L
20 54
5 13
11 30
1 3
37 100
Attended
College
# %
7 35
4 20
2 10
7 35
20 100
The amount of land a person owned was also significantly
related to understanding of the Plan. Almost 90 percent
of those who understood -the Plan very well owned more than
ten acres of land, whereas only 26 percent of all land-
owners owned parcels that large. Perhaps the fact that a
large number of small landowners drd not understand the
Plan can be partially accounted for by recalling that those
with just a residential plot of one acre or less were not
to be affected by the proposed restrictions. Those un-
affected had less of a stake in the Plan, and, therefore,
perhaps less interest in it. (See Table 15)
The third question on understanding of the Plan concerned
implementation of the project—how were the proposals to
51
-------
TABLE 15: Understanding of the Plan by Amount of
Land Owned, 1971
Understanding
of Plan
1
2
3
4
TOTAL
Under
#
21
8
4
0
33
Amount of J
2 acres
%
64
24
12
0
100
2-10
#
8
1
8
1
18
Land owned xn
acres
7.
44
6
44
6
100
Over
. #
4
3
3
8
18
acres
10 acres
%
22
17
17
44
100
be achieved. Only two persons from the entire sample
could give an adequate explanation of the implementation
process which included the knowledge that conservation
easements were to be placed on properties only if 80 per-
cent of the landowners in a sub-basin agreed and that
eminent domain was not a part of the Plan. Although al-
most half the respondents knew that easements were to be
used, as many had no idea how the Plan was to be implemen-
ted, and only three persons said that the Plan was to be
voluntary. In fact, over twice as many persons thought
that the Plan was to be implemented by force (comments
often ran "they were going to take your land and do what
they wanted with it"). It is impossible to tell from the
responses whether this misunderstanding is due to the
fact that the concept of voluntary easements was not pre-
sented clearly to UEB residents or that the landowners
heard the word "voluntary" but never believed it. The
belief that eminent domain would be used was not restric-
ted to those who did not understand the Plan. Of the |
interviewees who thought that eminent domain was to be
used, as many understood the Plan as did not.
Respondents were asked in two ways to state why they
supported or opposed the Plan. Because we thought persons
-------
might be reluctant to speak about personal reasons for op-
position, they were asked first how others in the water-
shed felt about it. Then they were asked directly how
they personally felt about the Plan. In analyzing reasons
for support or opposition to the Plan, responses from
both questions were coded together to yield a general
picture of the relative importance of the various reasons
for support and opposition (See Table 16).
When asked why supporters of the Plan did so, a large pro-
portion had no idea. Often people stated that they did
not know anyone was for it, indicating perhaps the scar-
city of supporters, but, more importantly, the lack of
vocal supporters. A few respondents said they thought
the Plan sounded like a good idea, but community pressure
kept them silent on the subject and often even helped
them to change their minds. Of those who ventured an
opinion as to why people supported the Plan, about half
of them stated that it was because of conservation, of
water and/or open space. The other 10 percent of those
responding attributed various motives to supporters, in-
cluding the following responses: (1) the authorities
supported it, not the people; (2) for money, and (3) be-
cause they had nothing to lose; they were unaffected.
Respondents were much more vocal and explicit about
reasons for opposition to the Plan. By far the most
frequently given reason was distrust and/or dislike of
easements on their property. Another set of objections
related to the problem of taxes. People were not clear
about exactly what would happen to the taxes on a parcel
of property under an easement. Some respondents ex-
pressed displeasure at the voluntary aspects of the Plan,
and insisted that if easements were to be fair to every-
one, eminent domain was an essential tool. It was felt
that otherwise one landowner could hold out until all the
surrounding properties were under easements, and then
sell his parcel for a large profit and at the expense of
the other landowners.
After opposition to easements, the next most frequently
mentioned group of reasons for opposing the Plan could
be categorized under distrust of the proponents and future
53
-------
TABLE 16: Reasons for Support and Opposition to the Plan
A. Reasons for Support
Response
The authorities supported the Plan, not the people
To conserve water resources, open space
"T r-rm-M-r-r" re a sons --they would profit from
t;ie ;'.. ;-.n
Those v.'ho supported it had nothins to lose
Don't know why people supported it
TOTAL
,,
O
33
2
3
29
90
7, of
sample
4
48
3
4
42
B. Recsons for Opposition
Response
Plan came at the same time as several other un-
popular projects
For monetary reasons — inadequate compensation,
inability to make money off of land under
easements
Distrust of those presenting the Plan; dishonest
intent and presentation of Plan; pressure from
proponents of Plan
Plan would benefit persons other t'ian the resi-
dents
Selective restriction of easements—affects people
unequally, tax burden on community
Fear of enacting Plan without adequate knowledge
of effects, compensation, enforcement
Outsiders telling us what to do
Easements — loss of clear title to land; loss of
full control over use of land
No plan necessary; we would not destroy
environment anvway
Eminent domain
High density housing: poor people to watershed
Don ' t know __,
TOTAL
if"
4
10
15
3
10
6
13
31
2
3
2
17
127
7. of
sample
6
14
22
4
14
9
19
45
3
12
3
25
I '
-------
administrators of the Plan. One-fifth of the respon-
dents felt that the presentation and intent of the Plan
itself was dishonest, and that UEB residents were being
railroaded. Along with the fact that people felt de-
ceived and pressured, area residents also often resented
the fact that it was "outsiders telling them what to do."
One frequently mentioned reason for opposition among
those who understood the Plan well was that not enough
was known about its possible effects on the area or how
the Plan was to be enforced. The fact that Plan pro-
ponents sometimes gave inconsistent answers to crucial
questions concerning compensation and use of restricted
land by Brandywine residents only heightened this fear.
They saw the Plan as an experiment, the results of which
were uncertain.
The Plan was ultimately defeated without ever having been
put to a vote. The previous section discussed reasons
why the Plan was dropped; it did not reveal how close or
far the project was from actual acceptance. In order to
more accurately assess support for the Plan, the inter-
viewees were asked directly what their position on the
Plan was. The data (Table 17) show that of those per-
sons who took a stand, they were two to one against the
Plan.
TABLE 17: Response to the Plan by Brandywine Residents
Response
Supported
Opposed
Undecided
Don ' t know
Total
No. of Persons
15
29
9
16
69
Percent of Sample
22
42
13
24
100
-------
In an attempt to discover which respondent character-
istics were associated with support of the Plan and
which with opposition to it, response to the Plan was
cross-tablulated with the following variables: (1)
whether the individual was affected by the Plan or not,
(2) income, (3) where the person grew up, (4) land tenure
in the basin, (5) length of time in present home, (6)
amount of land owned, (7) education, (8) understanding
of the Plan, and ( 9 ) familiarity with conservation ease-
ments.
Among these variables, ^he perception of being affected
by the Plan, large landholdings and high school rather
than college education were associated with opposition to
the Plan. Familiarity with conservation easements was the
only variable associated with support for the Plan. No
consistent relationship was found between the other vari-
ables and position taken on the Plan.
The exact impact of the Plan upon residents of the Upper
East Branch of the Brandywine watershed proved difficult
to assess. There are two major problems in any attempt
to make such a determination: (1) the fact that the Plan
was never -implemented and (2) confusion of the effects of
the project with other influences. The first problem is
rather obvious because the project was not able to go
beyond the community education stage; we can only view
its introduction to the area as a catalyst to citizen
participation in projects of similar concerns or to sup-
port of official action on environmental issues taken
subsequent to the rejection of the Plan. The second dif-
ficulty is the assignment of responsibility for a measured
change; for instance, the Plan was introduced just prior
to mass public exposure to ecological concerns. There-
fore, in an attempt to measure the impact of the project
upon citizen awareness of environmental problems and
action taken to protect the environment, the influence of
the Plan could be confused with the effect of the national
ecology movement. Both of these problems were approached
by a series of direct questions concerned with the Plan's
impact .
Respondents were asked if they thought the Brandywine
56
-------
planning experience had any impact on their environmental
awareness, any actions taken to protect the natural en-
vironment, organizations in the community, actions of
local governments or other or no effects. Responses were
analyzed only for landowners.
Approximately half of those who knew about the Plan said
that it had a positive impact upon their awareness of the
environment and the importance of protecting it. The over-
whelming majority (85 percent) of those who knew of the.
Plan said it had no effect upon their actions to protect
the natural environment. We asked a control question to
determine how many individuals ever really take an active
role in protecting the natural environment. Two-thirds
of our sample did nothing beyond "maintain" their own
property (Table 18). When questioned about the impact of
TABLE 18: Actions taken by Brandywine Residents to
Protect their Environment, 1971
' j Landowners
All Residents Landowners \ Familiar with
(N=82) (N=69) ! the Plan (K=53)
Response
Nothing
*
35
Maintain own property : 25
Action as a result of
ecology -wildl if e
protection movement
Community organization
-conservation clubs
-court action
-active organizing
Engaged i'n planning
TOTAL
17.
8
' 4
89
% i*
<
43
30
21
10
5
-
28
22
14
7
4
: 75
7.
37
29
19
9
5
-
#
19
15
14
7
4
59
%
32
25
24
12
7
-
57
-------
the project on the actions of local government 26 percent
of those who knew of the Plan indicated that it had a
positive impact. However, it is difficult to assign any
meaning to that figure. Many individuals we interviewed
showed a lack of knowledge of what township government
was doing in general.
To summarize the results of the question directed at in-
terviewee appraisal of the impact of the Brandywine Pro-
ject, responses were mixed as to successes and failures.
By far the greatest long-term impact indicated was upon
the expressed awareness, on the part of UEB citizens, of
the environment and the importance of protecting it. The
Plan made inroads, but it was neither extensive nor in-
tensive enough to make any changes in what citizens were
actually willing to do to protect their natural resources.
Although citizens are now more aware of the importance of
protecting the natural environment and because of the Plan
have greater knowledge of the means of doing so, the pic-
ture of need for the Plan presented by its proponents was
seemingly not effective enough to encourage further action.
Summary and Conclusions
The Brandywine Project planners saw a critical relation-
ship between normal development and damage to water
quality, beauty and other natural resources of an area
like the UEB. Despite possible harm to the natural en-
vironment the proponents of the Plan did not take the view
that all growth should be prohibited. Rather, they held
that allowing unrestricted development is ultimately more
costly than protecting water quality, and that it would
be worth public expenditure to ensure that this growth
would have minimal ill effects on the natural environment.
The UEB community was in substantial agreement with the
water resources goals of the Plan. They too wanted to
maintain the beauty of the area and its water resources.
They were, however, ambivalent about growth of the area.
Survey respondents were sensitive to the prospect of sub-
stantial changes in the present growth patterns. They per-
ceived that the area was changing steadily but slowly;
most persons saw growth as inevitable, but no immediate
threat was felt by the community.
58
-------
Efforts by proponents of the Plan to educate the water-
shed population to the damaging effects of urban sprawl
were, in effect, attempts to convert potential dis-
satisfaction into positive action by the UEB community.
When the Brandywine Plan was proposed, the UEB was frag-
mented, with many community centers. Inhabitants identi-
fied with a particular center rather than with a local
unit of government, i.e. the township. Local government
was weak, and previous attempts by the townships to in-
crease their control over land development through zoning
had met with strenuous opposition. When the Plan was pro-
posed, only three towns had zoning ordinances. Many land-
owners considered themselves the best guardians of the
environment and saw no need for the course of action pro-
posed by the Plan.
By 1971 most residents who were anxious to protect the
area from the undesirable effects of encroaching growth,
came to rely upon the new forms of control that the town-
ships had assumed. In direct contrast to the local method
of handling problems at the township level—as they arise--
environmental problems posed by the Plan required pre-
ventive action at a regional level. In this regard, not
only did the planners have to contend with a multi-
centered community, they had to unite the existing poli-
tical jurisdictions (townships) within the watershed as
well.
Despite the local ties established by the planners, resi-
dents remained suspicious of the project planners1 mo-
tives. They were "outsiders," and, as such, residents
felt they must have had someone else's welfare in mind.
Perhaps partly because of a misunderstanding of the pre-
ventive nature of the Plan, and partly because they were
unwilling to adopt new and unfamiliar land use controls,
watershed residents felt that the most appropriate method
for the task of controlling growth is zoning—a method
approved by 72 percent of the UEB residents. Most of the
watershed is zoned for two-acre farm-residential.
Brandywine planners felt that large-lot indiscriminate
59
-------
zoning was an illegal and ineffective method both for
directing growth and for protecting water resources.
Zoning was easily changed and provided no guarantees that
development would not occur in ecologically sensitive
areas. In order to be effective enough to protect such
areas, permanent restrictions on building were' deemed
necessary to protect natural resources from harm due to
development. The stringency and permanency of the controls
that were necessary to "do the job" raised questions of
fairness, if not of constitutionality, which project plan-
ners felt warranted compensation to those property owners
who would have been affected. Conservation easements were
chosen as the tool capable of handling these problems.
The benefit of the use of conservation easements was that
it was less costly to the public and still provided a
means of compensating property owners; public ownership
was not a necessary prerequisite to control.
Acceptance of conservation easements by watershed resi-
dents faced three hurdles: (1) negative experience of the
UEB community with eminent domain plus the fact that this
control is often associated with easements in residents1
minds; (2) its seeming benefit to many at the expense of a
few; and (3) most importantly, residents1 dislike of out-
siders telling them what they could and could not do with
their land.
Although Brandywine planners say the Plan as "voluntary,"
local residents saw the Plan*s presentation as an inflexible
"given," presented from the "outside." From the residents1
perspective, "voluntary" meant more than just acceptance or
rejection of the Plan; it meant that the community would
have a say in the Plan's proposals. Because there was
little give-and-take in the presentation of the Plan, most
residents did not feel that they had any role to play in
the project beyond casting a vote for a proposal handed
down to them. Many residents felt that crucial questions
had never been answered: Who would hold the easements?
How could they be sure that more would not be done than
they had contracted for? How could they be assured that
some would not profit from the Plan while others lost?
Would they have to contend with petty bureaucrats every
time they wanted to do something with their land? Was
60
-------
not the uniform application of restrictions to widely
divergent types of properties unfair to many landowners?
Recognizing that realistic discussion of alternatives is
often extremely difficult, with persons who are going to
be so directly affected by a plan such as this one, we
can only speculate that presentation of alternatives
rather than of a fixed plan might be a better strategy to
use to gain acceptance for a voluntary plan. Before hold-
ing public meetings, it might be beneficial to discuss
alternatives and possible strategies, to a larger extent
than was done in the Brandywine Project, with a small
group of community leaders and long-time residents who
are often powerful voices in a community where govern-
ment is still relatively weak.
Since the Plan was not implemented in the Brandywine, a
significant question remains: would it be possible to
implement such a plan at another time, in another place?
Reasons for opposition have already been examined, and
these point to some suggestions for future planning ef-
forts of this nature. First, it seems that the planners
were right in desiring a site where there were no other
major stream works which involved the taking of land. A
project such as this is likely to evoke feelings that the
Plan is not devised to benefit the community for which it
is intended—one of the many times that a higher level of
government appears to be disrupting the status quo. Second,
if such a plan is to be voluntary, it must actively seek
community participation in the entire planning process.
With respect to strategy, the question of timing is a third-
critical problem. The ,Brandywine Project had to present
many difficult concepts of land planning in a relatively
brief period of- time.
In order to make suggestions for the direction of future
planning efforts, we had hoped to be able to distinguish
any social or demographic characteristics which could be
associated with a predilection to accept the concepts of
the Brandywine Plan. The failure of attitudes toward the
Plan to correlate with almost all of these characteristics
was disappointing. It was found, however, that small land-
owners and those who were not directly affected by the Plan
61
-------
were those most in favor of the Plan. The project failed
to reach its most important prospective beneficiaries—
the large landowners—and was unsuccessful in gaining the
support of those it did reach. Opposition to easements
as a mechanism to control growth crossed all social and
demographic lines and was in general so strong that it
seemed to override all other factors. In the view of the
majority of Brandywine residents/ the property rights of
individual landowners superceded the need for collective
action in the form of easements which would restrict those
rights.
62
-------
PART B. PUBLIC REGULATORY AND LESS-THAN1-FEE CONTROLS
Political acceptance was the cornerstone of a successful
plan, and in this the planners failed. Two critical obser-
vations, common to the Brandywine and other urbanizing
areas, are central to the problem of political acceptance.
First, most of the people for whom a rural area is being
planned—the future residents—are not there to participate
in the planning and decision process. Second, many of the
present residents equate urbanization with deterioration
and so tend to reject any urbanization plan as worse than
present conditions. These observations lead to the question
of what is the most democratic way of making decisions
about the future use of urban fringe land. This question
is, in turn, linked inevitably to the question of how the
profits from development of this land should be distributed.
Our experience in the Brandywine, combined with our prior
and subsequent experiences, have shaped our response to
these questions.
The response, in brief, is that the people to be served must
be represented in the planning process. They have not been,
and are most unlikely to be represented with decisions on
future, urban fringe development made by the local munici-
pality. Responsibility for such decisions must be placed
at the regional level in order to serve more than the narrow
interests of current urban fringe residents.
Our conviction, post-Brandywine, that one could not reason-
ably expect local government to enact the type of land use
control programs which we had proposed led to several re-
lated questions: (1) what might one anticipate that local
governments—municipal and county—would be willing to enact
to protect the environment; (2) in what' direction are the
states moving and with what portents for future state or
regional action; and (3) how does federal tax law affect
the use of easements? These questions provide the focus
for the discussions in Part B.
63
-------
SECTION VI
MUNICIPAL REGULATIONS
Our timing in the Brandywine was somewhat premature, in that
in the intervening years a number of courts, including the
Supreme Court of Pennsylvania, have acted as we predicted.
They have held that forms of regulation such as large lot
or marshland zoning are unconstitutional because they fail
to provide compensation to the landowner for his loss of
development rights.
There are, however, regulatory actions which local govern-
ments can take to protect water resources. In cooperation
with The Tri-County Conservancy, a civic organization ac-
tive in the lower Brandywine valley, we have been working
with municipalities on such regulatory programs. One town-
ship and one county have enacted planned unit development
ordinances under which it will be possible for the planning
commissions to encourage development compatible with the
dictates of a given site. Other municipalities are consider-
ing similar ordinances. Another township has enacted a
flood plain zoning ordinance, and this ordinance has engen-
dered considerable interest in other townships. Erosion
control ordinances also are likely to meet with widespread
acceptance. The discussion in this section is limited to
flood plain regulation.
Flood Plain Regulation
Flood plains are those areas of land, adjacent to bodies
of water, which are occasionally inundated by flood waters.
Approximately six percent of the land of the United States
lies in flood plains. More and more of this land has been
built on, resulting in rising losses from flood damage. As
the flood plain is filled and built up, the flood waters
are constricted and forced elsewhere, at high velocity and
with great potential for harm to people and property.
Back in 1936, the federal government began building dams
and levees and straightening stream channels with the
intent of reducing flood losses, which then were 100 million
6?
-------
dollars per year. This approach to the problem of flood
losses has been a colossal failure, largely because devel-
opment in flood plains was allowed to continue. The program
has had unfortunate ecological consequences as well.
By 1966 the federal government had spent over seven billion
dollars, and was then spending 500 million dollars per year,
to control flooding. Yet flood damages had risen to one
billion dollars per year, ten times what they were when the
federal flood control program began.
In addition, people have realized that it is sensible to
keep flood plains in their natural condition so that they
can fulfill their prime function of flood water storage.
Local regulation of flood plain use, developing state laws,
and the new federal Flood Insurance Program all point in
this direction.
The Brandywine planners, after rejection of the Brandywine
Plan, prepared a model flood plain ordinance which could
be enacted by local municipalities. In addition, a review
was conducted of state, regional, and federal roles in
flood plain regulation as well as judicial decisions con-
cerning this type of regulation.
The State Role—Pennsylvania
Two bills, now before the Pennsylvania legislature, would,
if passed, alter the present role of the municipalities
in flood plain management.
Senate Bill 214 would authorize counties of the third
through eighth classes (including Chester County) to use
eminent domain to acquire land or interests in land for
flood prevention or control. This bill would have only a
minor effect on existing municipal-county relationships
for flood management, since the addition of the power of
eminent domain would be the only change in the existing
County Code.
Senate Bill 1059, titled Pennsylvania Flood Plain Manage-
-------
ment Law/ would bring about major changes. It would place
primary responsibility for management of flood plain use at
the state level with the Department of Environmental Re-
sources. It would also impose responsibilities on the muni-
cipalities. Essentially, the law would work as follows:
(1) the Department of Environmental Resources would adopt
regulations stating how flood plains are to be designated;
(2) the Department would adopt standards governing use of
all flood plains, in accord with criteria on permitted uses
set out in S.B. 1059;
(3) the Department would enact regulations providing for
management of flood plains;
(4) all municipalities, within one year of Department adop-
tion of the above regulations, would be required to provide
the Department with maps designating their flood plains,
with plans for flood plain management, and, if desired, with
standards more restrictive than the state*s standards;
(5) anyone wishing to build in the flood plain would be re-
quired to obtain a permit from the municipality, with the
municipality's decision subject to appeal to the Department;
and
(6) enforcement would be the responsibility of the Depart-
ment.
Thus, if this bill is enacted, all flood plains in the state
will be subject to management to reduce flood damage. The
state and the municipalities would be partners, with the
state bearing the major responsibility, in this management
program.
Regional Action; The Delaware River Basin Commission
In 1971, the Delaware River Basin Commission adopted a
resolution amending the DRBC Comprehensive Plan and Rules
of Practice and Procedure to achieve greater protection
of flood plains. This amendment to the Comprehensive Plan
committed the DRBC to adopt standards for use of the 100-
6.7
-------
year flood plain and provided that "Any project substan-
tially encroaching..." on this flood plain shall conform
with the use standards and with applicable state or local
flood plain regulations. The DRBC will rely on local
government, soil conservation districts, and watershed and
conservation associations to notify it of pending develop-
ment in flood plains.
The Federal Role; National Flood Insurance
The National Flood Insurance Program (P.L. 91-152) provides
for federal subsidy of flood insurance on some buildings
already built in flood or mud slide prone areas. Currently
eligible are residences of from one to four units and small
businesses located within areas flooded with the frequency
of once in 100 years. The maximum dollar value insurable
is $35,000 for single-family houses, $60,000 for all other
eligible structures, and $10,000 for the contents of any
eligible structure. The federal subsidy will be approxi-
mately 90 percent of the cost of the insurance.
Landowners buy the insurance and are protected under the
Act. However, they are not eligible unless their municipal-
ity participates in the program. Basically this means enact-
ing municipal regulations which stringently limit future
development in the flood plain.
For those municipalities which do not have flood plain regu-
lations that meet the standards of the federal act, the next
step is to adopt such regulations. The area flooded by a
storm of once in 100 years' frequency is the area to be sub-
ject to regulation. The municipalities may use the alluvial
soils maps of the Soil Conservation Service, at least on an
interim basis, to delineate the flood plain, or maps delin-
eating areas flooded with a 100-year frequency which are
prepared by the Corps of Engineers.
The municipality must then adopt regulations which bar most
further growth in the flood plain, except on a showing that
this would "... unreasonably curtail its future growth
and vitality." In no case may modifications to existing
structures, fill, or new development cause, at any point,
an increase of more than one foot in the level of
68
-------
the 100-year flood. The municipality must also provide for
enforcement of its regulations. Both the land use controls
and the enforcement provisions must be reviewed by the state-
in Pennsylvania, the Department of Community affairs—and
approved by the Federal Insurance Administration.
Court Decisions Concerning Flood Plain Regulation
There are three principal justifications for flood plain
regulation: permitting individual landowners to build as
they wish (1) results in development which obstructs the
flow of flood waters and causes damage to others; (2) leads
to the need for expensive public works; and (3) makes it
likely that purchasers of this development will be unwitting
victims of flood damage. The decisions of a number of
courts have been based upon acceptance of one or more of
these arguments as justifying regulation to promote the
public health, safety, and welfare.
Courts judge regulations in the context of the particular
circumstances. If the severity of the regulation of the
property owner is so great as to destroy any reasonable
return from the land or if the benefits to others from the
regulation are minimal, a court is likely to find the regu-
lation unconstitutional in that fact situation.
Illustrative of this is the action of the Common Pleas
Court of Montgomery County in Pennsylvania1s only two flood
plain zoning decisions. Both cases arose in Whitemarsh
Township. In the first (Hofkin v. Whitemarsh Township
Zoning Board' of Adjustment, 88 Montg. 68, 42 D&C 2d 417
(C.P. 1967)) the Court held the Whitemarsh ordinance un-
constitutional as it related to the property in question
and further held that the property reverted to its prior
zoning. The Courtas reasoning was that the township had
created the particular flood plain by building a road with
too small a culvert to drain storm waters. In the subse-
quent decision (Solomon v. Zoning Board of Adjustment of
Whitemarsh Township, No. 68-8718 (C. P. Montg. Co., Pa.
Dec. 29, 1969)) the amended Whitemarsh ordinance was sus-
tained as promoting public health, safety, and welfare by
preventing expensive public works or disaster relief. The
property in question had been mapped by the Corps of Engin-
69
-------
eers as within the 50-year flood frequency area and had, in
fact, been flooded seven times in two years. This fact
distinguished it from the previous case, as did the fact
that the owners were not deprived of reasonable use of ,
their land by the zoning. While these two decisions are
not binding on other counties in Pennsylvania, they provide
guidelines which are likely to be followed.
A number of other state courts (City of Welch v. Mitchell,
121 SE 165 (W. Va. 1924); American Land Co. V. Keene, 41
F2d 484, (1st Cir., 1930); McCarthy v. City of Manhattan
Beach, 41 Cal. 2nd 879, 264 P2d 932 (1953); cert. den. 348
U.S. 817 (1954); Vartelas v. Water Resources Commission,
146 Conn. 650, 153 A2d 822 (1959); Speiqle v. Beach Haven,
46 NJ 479, 218 A2d 129 (1966); and Turnpike Realty Co. v.
Town of Dedham, 284 N.E. 2d 891 (1972)) have sustained regu-
lations severely limiting use of flood plains or beaches
subject to frequent flooding. In each case the court has
looked at the reasonableness of the ordinance in relation
to the particular facts and has found that protection of
the public health, safety, and welfare takes precedence
over the burden on the individual landowners. There are
however, a few decisions holding to the contrary. In Conn-
ecticut, for instance, after sustaining, in Vartelas/ a
state refusal to permit construction of a particular build-
ing in a flood channel, the court held invalid a township
zoning ordinance reclassifying land from residential to
flood plain because it permitted the complaining landowner
no reasonable use of the land and caused a 75 percent drop
in the land's value (Dooley v. Town Plan and Zoning Com-
mission, 151 Conn. 304, 197 A2d 770 (1964)).There are a
number of marsh zoning cases which reach a similar conclu-
sion. (See particularly Morris County Land Improvement Co.
v. Township of Parsippany-Troy Hills, 40 N.J. 539, 193 A2d
232 (1963).)
If but a moderate portion of a landowner's property falls
within the flood plain—as would be true in almost all
instances in the Tri-County area—restrictive flood plain
regulation is likely to be sustained because the landowner
can obtain a reasonable return from the remainder of the
70
-------
property. However, since courts decide the validity of
regulations on a case by case basis, it is important to
permit the municipalities some discretion in fact situations
which present a hardship.
-------
SECTION VII
LESS-THAN-FEE CONTROLS
Acquisition of less than the full fee interest in land is
a technique which only recently has been employed by public
agencies to aid in the preservation of our natural resources.
This section is concerned with three different aspects or
developments in the use of this type of control mechanism
by governments. Two of these developments are examined
through case studies of actual experience with less-than-
fee land controls. The first, that of Bucks County, Penn-
sylvania, evaluates the administrative and political prob-
lems which surrounded the use of flooding and conservation
easements around a reservoir. The second is concerned with
recent developments at the state level, and evaluates the
experience of eight different states. The final aspect
covered is that of condemnation of real property previously
devoted to public use, with the focus on conservation ease-
ments. For a complete exposition of the findings of these
studies, the reader should refer to the reports of Slade,
Ball, and Hillsberg (A) listed in the Appendix.
A Case Study of the Bucks County Easements Experience
Bucks County, in the Philadelphia metropolitan area, was the
first county to use the less-than-fee law which was drafted
as part of the Brandywine Plan. Bucks County acquired both
flooding and conservation easements around one of the reser-
voirs being built under Pennsylvania's Small Watershed Pro-
gram. Because the law was new and because easements have
been used infrequently for water resource protection, the
researchers were particularly anxious to document the Bucks
County experience.
The county developed detailed procedures for negotiating
the easement acquisition and carried them out with great
success. Despite an initial landowner response to the
program which was very similar to the response in the
Brandywine, the county proceeded. When the landowners
approached first refused to sell easements, the county
moved to condemn entire properties in fee. One landowner
73
-------
filed suit to challenge the law's constitutionality but
later dropped the proceedings. Gradually, as people recog-
nized the county's determination, more and more voluntarily
sold easements. By the conclusion of the program, half of
the landowners had negotiated easement agreements and half
had insisted on county condemnation. All properties ac-
quired in fee by the county were, by law, required to be
resold subject to flooding and/or conservation easements.
In the creation of the Neshaminy Water Resources Authority,
Bucks County undertook and in three years brought nearly to
fruition the planning and acquisition phases of a complete,
well planned, well thought out program for integrated water
supply, water quality control, conservation, recreation and
flood control on a creek which drains nearly 40 percent of
the county's total territory. Bucks is part of the metro-
politan Philadelphia area and is experiencing and will
continue to experience rapid growth. In the late 1950Js,
in recognition of the increasing land pressures, Bucks
undertook a Master Plan for Water Supply and Sewage Facil-
ities which was completed in 1960 and which projected public
water and sewer facility needs to 1965, 1980 and 2010. In
order to implement the Master Plan for Water and Sewerage,
the Bucks County Commissioners created in 1962 the Bucks
County Water and Sewer Authority. This Authority has had
as its main purpose assisting local municipalities in solv-
ing their water supply and sewage disposal problems by
various methods of inter-municipal agreements, in which the
County Authority in general has assumed the role of financ-
ing, constructing and operating regional systems. Also in
1962, the Bucks and Montgomery County Commissioners, their
Soil and Water Conservation Districts and the Soil Conserva-
tion Service, USDA, began formulating a detailed plan for
the conservation and orderly development of the water re-
sources of the Neshaminy Creek Basin. This study was co-
sponsored by 36 municipalities in the watershed and,in all,
forty-two federal, state and county agencies participated in
the study.
The end result was a plan for the conservation of the water
resources of the basin, presented to the sponsors in 1966.
Out of this planning grew the Neshaminy Creek Water Resources
Development Program with the announced aims and specific
74
-------
purposes of improvement of water quality, assurance of ade-
quate water supply, flood control, conservation and recre-
ation. In May of 1966, agreements were signed looking to
implementation of the study with Bucks County assuming the
largest share of the financing.
The Bucks County Commissioners having committed themselves
to the program, created in 1966 the Neshaminy Water Resources
Authority, a financing Authority which/ on January 18, 1967,
agreed on a financial proposal for implementation of the
program and on March 1,. 1967, floated an eight million dollar
bond issue for land acquisition and project engineering. The
total program cost will eventually be 35 million dollars
with Bucks, through the Authority, paying all land acquisi-
tion costs and the Soil Conservation Service paying all
costs of flood control engineering and construction. Bucks
assumed cost responsibility for engineering and construc-
tion of water supply. The venture is unprecedented in size;
no other county in the Commonwealth has undertaken a conser-
vation program of this magnitude. The Authority has no
staff of its own; its Executive Director also serves as
Director of the Division of Natural Resources of the Bucks
County Planning Commission. Functioning as a financing
agency and utilizing the staff of the Division of Natural
Resources, the Authority acquires the properties necessary
for the program and leases them to the county. The Natural
Resources Division manages,on the county's behalf, the ac-
quired properties pending actual physical construction of
the dams and parks involved.
The Authority was intended to take advantage of newly enacted
legislation in Pennsylvania known as Act 442. Act 442 was
designed "to clarify and broaden the existing methods by which
the Commonwealth may preserve land in or acquire land for
open space uses...to meet needs for recreation, amenity and
conservation of natural resources...including...a pure and
adequate water supply." In outline, the Act provides: that
where the Commonwealth or a county develops a plan for open
space uses in a resource,recreation or land use plan, it shall
thereafter designate the property involved for open space use;
that a public hearing pursuant to public notice with specific
notice to all property owners directly involved and to munici-
palities affected shall be held at which hearing there shall
be set forth the interests to be taken and their proposed
75
-------
open space benefits; that less than fee interests may be
acquired; that where the owner of property sought to be
acquired by the county prefers that a fee rather than an
easement be taken, the county shall be required to take
the fee; and that where fee simple titles are acquired,
the county shall offer for sale the fees subject to
restrictive covenants or easements limiting the land to
open space uses, such offer of resale to be made within
two years of acquisition.
The easement is, of course, the heart of Act 442. As
tailored by the Natural Resources staff to fit both the
Act and the requirements of the program, it consists of
two separate and distinct items. Beginning with the
stream bed and on the basis of surveys, the staff divi-
ded the land abutting the stream into that portion of
the abutting property which would form part of the
permanent pool if the land was to be included in a per-
manent pool; that portion of the property lying above the
level of the permanent pool and extending up to the ele-
vation of the top of the dam, known as Parcel A and sub-
ject to occasional flooding plus certain restrictions for
dam and water supply protection; and the remainder of the
particular abutting property known as Parcel B and sub-
ject to conservation easement. The conservation ease-
ment whether negotiated or condemned as an easement or to
be impressed on the property upon resale after condemnation
of the fee, contains in each case the following provisions:
1. Agricultural use of the property must be in
accordance with an approved conservation plan.
2. Soil erosion shall be limited to less than
three tons per acre per year.
3. Land subject to easement shall be kept under
cover except for periods of tillage. •"*
4. Impervious cover is limited to 15 percent.
Although Act 442 does not specify whether, if only a por-
tion of a particular piece of property is necessary to
effectuate the purposes of the Act the county may or shall
76
-------
acquire all of any specific piece of property or just that
portion which is necessary to be placed under easement/
the Bucks County staff has construed the Act as authorizing
the acquisition of the entire piece of property. This
choice undoubtedly simplified the acquisition process and
rendered the appraisal and survey processes more manageable,
It also has the obvious effect of bringing a much larger
acreage under conservation easements.
The Neshaminy Program affords an excellent illustration of
the intelligent use of legislative tools toward environ-
mental protection. The effort and the thought expended on
the program have produced and will produce positive re-
sults which could be replicated elsewhere. Those who would
initiate similar programs might well benefit from a close
study of the program and a careful examination of the pit-
falls which it has, so far, largely avoided.
The single largest problem in conducting the easement
acquisition program has, in the case of the Neshaminy pro-
ject, proved to be the appraisal of easements. For the
future, and until such time as there is more learning on
the subject, the experience gleaned from the project may
offer some guidelines if not solutions for appraisal prob-
lems in similar programs. Chief among these is that ap-
praisals which are to form the basis for offers for the
sale of easements must bear some reasonable relationship
to the value of the property as a whole. Since the con-
servation easement is going to be impressed upon the en-
tire parcel, its value, whether or not it —or the ap-
plicable zoning by itself—inhibits further development,
cannot be said to be de minimis. Certainly, in the mind
of the landowner, it is not de minimis and experience has
shown that three percent or four percent or even in some
cases ten percent valuations for conservation easements
have resulted in demands for fee takings. The conserva-
tion easement when combined with a flooding easement
should bear an even more substantial relationship to the
value of the entire property since the flooding easement
most assuredly does prevent further development even on
a property which is not subdividable.
Finally, those appraising proposed land acquisitions must
77
-------
be so trained and instructed as to conduct their ap-
praisals with a minimum of contact with and annoyance
to the involved landowners. It is the appraiser's
function only to form an estimate of value. It is the
negotiator who must bargain.
In Bucks County easement costs approximated 50 percent of
fee value for the flooding easements and between 10 and
15 percent of fee value for the conservation easements.
Early offers of 3 to 4 percent of fee value for conser-
vation easements met with rejection and forced the county
to condemnation. The experience in Bucks County demon-
strated convincingly the feasibility of the less-than-fee
approach to land use controls and provided some needed
practical experience.
Eight States' Programs
In the late 1960*s a number of states recognized that they
must act directly, rather than through enabling laws for
local government, to protect critical natural areas. Since
the new state laws and resulting programs paralleled con-
clusions reached in the Brandywine experience, the re-
searchers sought to learn how effective they were proving.
They began by contacting all states known to have re-
cently launched land use control programs for resource
protection. After initial correspondence and conversa-
tion, it was concluded that eight states1 programs were
far enough advanced and of sufficient interest to warrant
an on-site visit and discussions. These states were
Virginia, Massachusetts, Connecticut, Maryland, Califor-
nia, Washington, Maine, and Wisconsin.
Although there is considerable variation in the directions
that these states are taking, there are enough common
threads to allow some generalization. The two principal
areas of state action were preferential assessment and wet-
land, shoreline, and flood plain control.
Preferential assessment has met with popular acceptance
but has had only limited success in realizing the objective
of resource protection. Early constitutional problems have
78
-------
been largely overcome, either by legal drafting or con-
stitutional amendment, but, since the preferential assess-
ment programs are voluntary in nature and binding for
limited periods only, their effect has been to give the
landowner a tax break until he is ready to develop.
State controls on water-related lands have a far more
promising future. They are undergoing the birth pangs of
sloppily drafted regulations, inadequate financing, and
adverse lower court decisions. Once the states recognize
that they can't get something for nothing and begin fund-
ing the programs sufficiently so that landowners are paid
fairly for loss in development value, the programs should
provide cohesive, large-scale control over many lands
critical to water resource protection.
The most important action for states to take at this time is
to ensure that land use planning functions are tied to ef-
fective land use control techniques. The necessity for re-
lating control and planning may lead to taking traditionally
local control activities out of the hands of local offi-
cials; or it may mean that the state must set up land use
control policies and guidelines for local governments to
follow, accompanied by some sort of enforcement plan to en-
sure compliance with such guidelines. Also, officials at
all levels of government must come to the realization that
there are critical land use control activities which tran-
scend the boundaries of many local governments.
It must become appar.ent that "the public" served or af-
fected by a governmental policy or action varies greatly
with the nature of the policy or action and the level of
the government carrying out such policies: e.g., one
county government's program may affect the public of a
neighboring county. The politics, program and the public
served by any given program must be made to mesh. Further,
many local governments must come to the realization that
there are many technical questions which arise in the
practice of land use control which surpass the competence
and skill of most local government officials. This last
consideration inevitably leads to difficulties: local
people rarely embrace with gusto the advice of outside
experts from a distant state capital.
79
-------
Condemnation of Real Property Previously Devoted to Public
Use
Once conservation easements have been acquired by a public
agency, the question will often arise as to just how per-
manent an interest it is, and whether or not other public
agencies can take, alter, or impair the conservation
rights acquired by the initial agency.
Alternatively, there may be a desire to purchase and hold
a conservation easement on land already devoted to public
use in an effort to preserve for future generations what
is held. The purpose of this examination, therefore, was
to determine the ability of a condemnor to take land 'pre-
viously devoted to public use, and to determine the rights
of the condemnee.
The law with respect to the condemnation of publicly held
conservation easements is basically the same as the law
with respect to the condemnation of any property devoted
to public use, because the easement is but one of the many
types of interests in real property. For this reason/ and
because the conservation easement is a relatively new tool
with little judicial precedent, the law relating to the
condemnation by one public agency of property held by
another public agency and devoted to public use was ex-
amined. Where opinions exist pertaining to the taking of
publicly held conservation easements or the condemnation
of conservation easements on public land, they were also
included.
The reader will find that the federal government, as the
supreme sovereign,will usually be able to take the prop-
erty devoted to public use that it wants, providing that
it compensates the owner thereof. Each state is also a
sovereign, but one that is inferior to the federal govern-
ment. While the .state, or any of its agents, cannot
usually take federal property, the. state usually can, with-
in its jurisdiction, take property previously devoted to
public use held by any owner other than the federal govern-
ment, and without making compensation therefor. A recip-
ient of the state's power of condemnation, such as a muni-
cipality, however, does not acquire all of the attributes
80
-------
of a sovereign. Express authorization or authority im-
plied by strict necessity is necessary for such an agent
of the state to condemn property previously devoted to
public use. The necessity for such a condemnor to make
compensation for its taking will also depend upon the ex-
press desire of the legislature.
Each state possesses the sovereign power of eminent do-
main within the territorial limits of its jurisdiction.
The state can use its power of eminent domain only to en-
able the state properly to execute its governmental func-
tions and responsibilities.
A municipality or municipal authority can be granted the
right to exercise the power of eminent domain. An author-
ity of a municipality (a municipality is defined in Penn-
sylvania to be any county, city, town, borough/ township
or school district), and the municipality itself is an
agent of the state, and the extent of its powers is de-
termined by the legislature and is subject to change,
repeal or total abolition at the will of the legislature.
.Furthermore, the power of eminent domain may also be
delegated to certain public service corporations.
The federal power of eminent domain extends to lands with-
in the states (or to any lands within the geographical
limits of the jurisdiction of the United States) and is
not dependent on state authority, nor can the exercise of
the power be limited in any manner by the state. The right
of eminent domain inheres in the federal government by
virtue of its sovereignty and thus it may, regardless of
the wishes of a state, acquire the lands it needs within
its borders. The fact that the land is already devoted
to a public use does not affect or impair this power.
Compensation must be made to public service corporations
for real property taken from them by condemnation, but the
Constitution of the United States requires no such compen-
sation to be made by a state to a municipality for the
taking by condemnation of the real property of a munici-
pality. Indeed, the state is entitled to dictate its own
terms for such a taking. The obligation to make compen-
sation, or the lack of such an obligation, frequently will
81
-------
be determined by specific legislation or by the nature of
the taking.
A municipality or a public service corporation usually will
not be permitted to take by condemnation property belong-
ing to a state, municipality, or public service corporation
without either express authority or the necessary impli-
cation. A statute authorizing the taking of the property
of one political subdivision by another, either expressly
or by the necessary implication, will normally preclude
any liability for the property taken, but it will not
automatically follow. Furthermore, if there is no speci-
fic provision as to the necessity to make compensation for
the taking by condemnation of property devoted to public
use, a public service corporation will be presumed to have
such a duty.
The above conclusions all refer to the ability of a state,
municipality, or public service corporation to condemn and
the requirement of them to make compensation for the taking
by condemnation of property devoted to public use. These
conclusions are equally applicable to both the taking or
impairment of an existing conservation easement and the
taking by condemnation of a conservation easement over land
devoted to public use, because the conservation easement
is an interest in real property.
The federal government can take by condemnation real
property that is devoted to public use1 and belonging to
a state, a political subdivision thereof, or a public ser-
vice corporation, if it is willing to make just compensa-
tion therefor. The ability to take under general statutory
authority such property, however, is limited by the re-
quirement that the taking not be arbitrary or capricious.
The specific authorization of Congress, and thereby the
decision of Congress, to take property devoted to public
use for public purposes, however, cannot be challenged a.$
being arbitrary or capricious.
The conservation easement is an interest in real property.
Therefore, the ability of the federal government to take by
condemnation real property devoted to public use and the
necessity to make compensation therefor, as described above,
82
-------
is applicable to both the taking or impairment of an exist-
ing conservation easement and the taking by condemnation of
a conservation easement over land devoted to public use.
As the public develops greater concern for the preserva-
tion of open sapce and the preservation of natural and
scenic values, federal, state, and local governments will
be looking for a tool to accomplish these goals at low
cost. It is to be expected, therefore, that the use of
the conservation easement for such purposes will become
more commonplace.
83
-------
SECTION VIII
FEDERAL TAXES AND EASEMENTS
One major uncertainty about the use of easements and
other less-than-fee controls has concerned the tax con-
sequences. Believing that people will be far more re-
ceptive to these controls if informed about such con-
sequences, the investigators carried out a study of the
federal tax laws which covered sales, involuntary sales,
and gifts of easements and the resulting federal in-
come, estate, and gift tax implications. Determination
of ordinary versus capital income, recognition of gain
or loss if capital income, and determination of cost
basis were among the matters analyzed. This section pre-
sents an abbreviated overview of the conclusions of the
study. The reader should refer to the original paper
(Hillsberg (B)) listed in the Appendix for a complete ex-
position of the analysis.
The Treatment of Proceeds from the Sale or Condemnation
of Conservation Easements
If the sale or condemnation of a conservation easement
would result in a net loss to a taxpayer, it would usually
be to his advantage to be able to take an ordinary loss,
as opposed to a capital loss. The reason for this is
that certain ordinary losses are deductible from ordinary
income (usually taxed at higher rates than capital gains),
whereas capital losses are, for the most part, deductible
in any taxable year only to the extent of capital gains.
Deductions from ordinary income, therefore, will often
yield greater tax savings than similar deductions from
capital gains.
On the other hand, if the sale or condemnation of a con-
servation easement would result in a net gain, it would
often be preferable, and never detrimental, to be able to
treat such a gain as a capital gain. The reason for this
is that an alternative tax is placed on the excess of long
term capital gains (the excess of gains from the sale or
exchange of capital assets held for longer than six months
over losses from the sale or exchange of capital assets
85
-------
held for greater than six months) over net short term
capital losses. The familiar maximum 25 percent alter-
native capital gains rate continues to apply to aggregate
long-term capital gains which do not exceed $50,000. A
taxpayer need not choose to apply the alternative tax rate
if the ordinary tax rates would yield a tax rate lower
than 25 percent. The tax rate on net long-term capital
gains in excess of this amount will increase in three
annual steps, but the combined effect of a 50 percent
capital gains deduction and the maximum 70 percent rate
on ordinary income of individuals creates a maximum 35
percent rate on capital gains.
Criteria for Treatment as a Capital Transaction
If the criteria for treatment as a capital transaction are
met, there can be no election to treat the transaction as
other than capital. (One must remember, however, that if
net short term capital gains exceeds net long term capital
losses, the excess is treated as ordinary income,,) In
order to receive treatment as a capital transaction, there
must either be a sale or exchange of a capital asset, as
defined by statute, or an excess of the recognized gains
on sales or exchanges of property used in trade or busi-
ness plus the recognized gains from the involuntary con-
version of property used in trade or business and capital
assets held for longer than six months over the recognized
losses from such sales, exchanges, and conversions.
For purposes of determining whether an easement will
qualify as a capital asset or as property used in trade
or business, the easement itself must be examined.
Therefore, it first must be determined what property will
qualify as a capital asset or as property used in trade
or business. Then it must be determined whether or not
the easement is itself "property."
To receive treatment as a capital transaction, the sale of
a conservation easement must be the sale of "property."
Even if the sale of a conservation easement over farmland
or other business property is not considered the sale of
86
-------
property used in the trade or business (because the ease-
ment itself might not be considered business property
even though the underlying property is), it may still be
considered the sale of a capital asset if the easement is
determined to be property.
A conservation easement may be either affirmative or
negative in nature. Affirmative easements, such as the
right to enter the land and cut trees that obstruct a
view, have long been considered interests in property,
the condemnation of which require compensation to be paid.
The nature of negative easements, on the other hand, has
until recently been a matter of controversy. The holder
of a negative conservation easement is empowered to pre-
vent the owner of the servient land from exercising full
powers of ownership over the land subject to the ease-
ment. The holder may be empowered to prevent the cut-
ting of trees, the depositing of landfill, the excava-
tion or removal of minerals, and to prevent the construc-
tion of new buildings and roads, depending upon the exact
terms of the easement. Even though the holder of such
easements does not possess affirmative rights that can be
exercised on the burdened land, it has been decided that
the restrictive or negative easement is an interest in
property, the proceeds from the sale of which can be
afforded capital gains treatment.
Summary of Conclusions
Under most circumstances, the gain from the sale or con-
demnation of a conservation easement will be given capital
gains treatment. If for any taxable year the net long-term
capital gain exceeds the net short-term capital loss, 50
percent of the amount of such excess may be deducted from
gross income. Furthermore, at least for a few years more,
a special ceiling is put on the tax rates to be applied
to the nondeductible 50 percent.
If a conservation easement is condemned, recognized gains
or losses will be subject to the netting provisions of
the internal revenue code. If, during the taxable year,
the recognized aains on sales or exchanges of property
87
-------
used in trade or business, plus the recognized gains from
the involuntary conversion of property used in trade or
busin-ess and capital assets held for more than six months,
do not exceed the recognized losses from such sales, there
will be an ordinary loss. Planning sales of property used
in trade or business, therefore, can have important in-
come tax consequences.
When a conservation easement is sold there will probably
be no alternative but to subtract the proceeds of the
sale from the original cost basis of that part of the
property subject to the easement. Gain will be recognized
only to the extent that the proceeds from the sale of the
easement exceed the basis of the burdened land. It ap-
pears that the Internal Revenue Service will not permit a
failure to apportion the original basis for the whole
tract between the part to be burdened and the part not to
be burdened. It has, however, failed to apportion the
basis further, to determine the basis of the easement sold.
The problems in determining the basis of a conservation
easement are not insurmountable and if the Internal Reve-
nue Service chose to do so, it could reverse its position.
If the sale of a conservation easement is by condemnation
or threat thereof, nonrecognition provisions may apply.
The position of the Internal Revenue Service, however, in-
dicates that gain from the sale of conservation easements
will not be entitled to such treatment. There are many
strong arguments for adoption of a rule to the contrary,
but even if nonrecognition provisions could be applied the
problem of finding qualified replacement property would
remain.
If income has accrued but has not been received by a cash
basis taxpayer before his death, the gain, if any, that
would have been recognized by the deceased, will be taxa-
ble to whomever becomes entitled to receive it. Further-
more, the gain retains the same character it would have
had in the hands of the deceased. The recipient of the
remaining interests in the land would have as his basis
the market value of the burdened land at the date of the
death of the decedent, or at a date otherwise permitted.
88
-------
If a gift of a conservation easement is made to a qualified
charity, a charitable deduction, equal to the market value
of the gift will be permitted from ordinary income. If
the value of the easement given is greater than $3,000, or
if the gift of the easement causes the total of the gifts
made to a recipient, in the same taxable year, to exceed
$3,000, a gift tax return must be filed.
The sale or gift of a conservation easement carries with
it no special estate tax consequences. Gifts made in con-
templation of death continue to be includible in the gross
estate. If a taxpayer is in ownership of a conservation
easement at his demise, its value will be included in the
gross estate. The important provision to remember is that
a testamentary gift of a conservation easement to a quali-
fied charity will be deductible from the gross estate.
The federal income tax treatment of the proceeds from the
sale or condemnation of conservation easements is complex
and currently subject to differing interpretations, because
the use of the easement as a tool for conservation is rela-
tively new. It is hoped that the Internal Revenue Service
will address itself directly to both the applicability of
nonrecognition of gain provisions and the proper basis to
which the proceeds from the sale of a conservation ease-
ment must be compared. The effectiveness of the use of
conservation easements as a tool for conservation cannot
fully be determined without such clarifications. However,
one can say that, while clarification from the Internal
Revenue Service is needed, tax consequences need not be
an impediment to use of easements.
89
-------
PART C. PRIVATE DEVELOPMENT CONSORTIA
Almost a decade ago, one of the Brandywine planners con-
ceived the idea of a development consortium whose members
would be the private landowners of a given area. A public
land use plan which proposes that substantial amounts of
land remain in open space or in very low density uses
acts to shift materially the distribution of land values.
The development value of areas planned for open space will
shift to areas planned for growth. One approach to this
outcome of planning is for the public to compensate the
owner whose development rights are removed/ raising the
compensation money by taxation of the landowners granted
the right to develop.
It would seem that a far simpler approach, better suited
to a people wary of government intervention, is for all
landowners in an area to pool their rights to share in the
profits from development, whether or not the development
occurs on their land. The underlying assumption of this
concept is that, prior to the public plan, all landowners
had some expectation of rise in land value due to develop-
ment potential. It is the public plan which shifts these
expectations. If all landowners were to share in a land
management consortium, with their shares determined by
their pre-plan land value expectations, then they would
benefit equitably from growth. Public intervention to
redistribute the gains would be unnecessary.
Part C examines the feasibility of such concerted, but
voluntary, private efforts as a means for realizing certain
social objectives, primarily related to the preservation of
open space and the sequencing of land development. The
specific focus is the legal and financial issues encountered
in this type of approach and the organizational forms that
it might take.
91
-------
SECTION IX
THE FEASIBILITY OF PRIVATE DEVELOPMENT CONSORTIA
AS A MEANS OF CONSERVING OPEN SPACE
Over the past decade, there has been a rebirth of interest
in the preservation of open space. Studies by scholars
and practitioners have urged upon our consciences the need
for such preservation and have analyzed the hurdles which
must be surmounted if it is to be achieved. The techniques
for acquiring and developing land for public parks are
comparatively simple and straightforward. Because the land
will be fully occupied and used by the public it must be
acquired by purchase or condemnation—a simple, if costly
step.
When we turn to the question of how to keep extensive
areas in the urban fringes and beyond in an essentially
natural state, it is quite a different story. Several
factors converge to make it complex and difficult. First,
the provision in the U. S. Constitution that no property
shall be taken for public use without just compensation
has been interpreted by the courts to mean the government
cannot, under circumstances here relevant, so restrict
the uses to which a person's property can be put, that it
cannot be used for any reasonably profitable purpose.
(See, e.g., Morris County Land Improvement Co. v. Township
of Parssipany-Troy Hills, 40 N.J. 539, 193 A.2d 232 (1963).)
This means for instance/ that a municipality cannot con-
stitutionally prevent an owner of land with special eco-
logical or open space significance from developing it in
some way, without compensating him. Thus, a broad guage
open space preservation program may well involve a sub-
stantial commitment of public funds to compensate those who
cannot put their lands to reasonable use.
A second factor is closely related to the first and arises
out of the essential values of our system of free enter-
prise and private property. Owners of extensive open land
consider it their right to make as great a speculative
profit from it as they can, when they want. Although their
hopes may often outpace the realities of the market, they
still adhere to a deeply felt ethic which asserts and
-------
sustains their right to profit from their land holdings.
Often, as in the case of middle-aged or elderly farmers,
their property is their only marketable asset and their
principal security against the economic adversities of
old age. Understandably, they react vigorously, on eco-
nomic grounds alone, against a program which seeks to
prevent or destroy appreciation in the value of specific
properties by preventing their development.
Closely related to these considerations are the distrust
of government and the sanctification of private activities
which are widespread in areas on the urban fringe. Be-
cause of them, a government program to preserve open space
triggers ideological opposition, on the basis that it chal-
lenges deeply held, traditional beliefs about the sanctity
of private property.
Finally, a program which is premised on public ownership
and the use of large areas of interstitial, resource-
related or form-giving open space would run into the ad-
ditional objection that adjacent landowners—those with
the present veto power—would be plagued by litterers,
picnickers, and vandals.
One of the concepts which planners were not able to de-
velop during the life of the Brandywine project was that
of the development corporation as an important instrument
in the distribution of profits and losses which may at-
tend an open space program. The central rationale for
its use was that landowners whose land was to be kept open
by the imposition of conservation easements could take the
money received in payment for the easements and invest it
in other developable land in the watershed or nearby and
thus benefit from a general rise in land values. The
private development corporation seemed promising because
it met two of the principal objections to an open space
program which were mentioned above. This section discusses
some of the legal and financial characteristics of the
private development consortia approach to the preservation
of open space. For the complete analysis, the reader
should refer to the report by Krasnowiecki listed in the
Appendix.
94
-------
The Feasibility of Self-financing
One of the first issues raised by the private development
consortia approach is the idea or belief that the cost of
maintaining open space can be offset by a resulting in-
crease in the return on other land. One may suspect that
this is storybook economics which, among other things,
accounts for why developers are not rushing to take ad-
vantage of optional clustering (where that is offered
without substantial increase in density^. The assumption
of optional clustering is that the market for a given
number of single-family homes on one-half acre lots is
prepared to offer the same return to land for the one-
half acre under the home plus the one-half acre included
in the open space/ as the market for the same number of
homes is prepared to offer for one-acre lots (without the
open space). In certain markets, with unusual preferences,
that may be true. By and large, however, the single-
family home market will not sustain as high a return to
land when it is offered as separate open space as it will
sustain for the same land when provided around the home.
If this analogy holds, then there is a serious problem
with the idea that development is capable of carrying the
cost of the conservation easements, let alone that it will
do so voluntarily, unless some form of bonus-system is in
effect (either overtly or covertly).
Although the case in favor of requiring cash contributions
for various public services and improvements has been ably
argued, it is questionable whether the courts would react
favorably to any overt scheme for charging the costs of
conservation easements to new development. Even the most
ardent proponents of the exaction would agree that it must
be limited to services and facilities needed by the new
development. Furthermore, it could be argued that the
distributive effects of direct exactions should be compared
with other alternative methods of distributing the costs
of social welfare, particularly taxation.
Pooling—Unitization
A second related issue is the feasibility of a scheme by
which those who are allowed to develop must compensate
those who are denied the right to do so. Although this
type of arrangement has been upheld in the utilization of
95
-------
oil resources, there is some difficulty with applying the
same reasoning to development value. It is hard to demon-
strate that development on one parcel always withdraws
from the development potential of some other parcel—and
particularly that it does so within the regulated area.
In order to establish such a nexus for development worth/
the community would have to put a ceiling on total develop-
ment, expressing it in units which are transferable from
one kind of development to another (at least within the
broad categories); then allocate the units to the various
parcels on some "fair" basis; and then provide that pri-
vate reallocation can occur in accordance with stated
rules (or in accordance with stated standards for discre-
tionary action by an appropriate agency—a more likely
approach). There are so many technical problems with the
idea as to render it at best dubious. What should be the
principle of initial allocation? What units of measure-
ment should be used? How can more units be pumped into
the system? Can private reallocation occur as of right
or/ if not, what standards should be used? How can the
community defend those standards in view of the decisions
made upon the original allocation?
Easements in Exchange for an Equity Participation
If a private development corporation will not voluntarily
invest in conservation/ so that some kind of bonus or some
kind of compulsory pooling system will have to be employed/
the question arises whether a private development corpora-
tion is an appropriate vehicle in the first place. Per-
haps the thought is that instead of contributing cash to-
wards the acquisition of easements by a public authority/
the corporation might be prepared to offer an equity par-
ticipation (preferred or common stock) to the landowners
in exchange for the easements. This proposal/ however/
comes up against a number of difficulties/ the principal
one of which is that although a conservation easement has
value to the landowner who grants it/ it does not have any
clearly recognizable value to the grantee. The only
grantee that can put a value on the easement is the pub-
lic. Accordingly, if the public desires that the value
it puts on the easement be paid out of the profits of
96
-------
development, there are two honest courses open to it;
(a) it should secure from the state the right to tax new
development for this purpose, or, alternatively, tax
everyone (a preferable alternative) ? or (b) secure from
the state the right to get into the development business
itself so that it can plow back the profits (if any)
into conservation.
The Private, For Profit, Development Corporation Approach
From the foregoing discussion it may be concluded that the
private investor is unlikely to purchase the right to pre-
vent development on land belonging to others merely on the
theory that his land will become more valuable for de-
velopment, unless this nexus is artificially created by
the public regulatory system. Put it another way: there
is no indication that the housing producer or consumer is
prepared to pay for non-usuable open space or for non-
Exclusive" (i.e. public) usable open space, unless this
cost is forced upon him by employing scarcity as an in-
strument of enlightened public policy. What is true of
the housing producer and consumer is even truer of com-
merce and industry. Thus, the private development corpor-
ation idea will work only within an overall regulatory
scheme in which industrial and commercial development per-
mission and residential density increases are awarded in
exchange for the acquisition of open space interests on
other land within the scheme.
Even if such a scheme could be established as a practical
matter, its validity is subject to question. Although
there are no judicial decisions directly in point, it is
generally agreed that bonus or incentive zoning schemes
have little to fear from the courts if the bonus is
rationally related to the condition that is exacted from
the developer. Thus the courts are not likely to dis-
approve a zoning scheme where density increases are granted
in exchange for open space that is usable by the residents
of the development in question. It is a different matter
if the open space is not usable by the residents of the
development (i.e. is non-contiguous and remote). While a
requirement that developers' contribute cash towards the
acquisition of public parks has been upheld where reasonable
97
-------
and authorized by state statute, the implication is that
such a requirement can only be applied where the basic
rule is that the developer must provide land for parks
and playgrounds on his site and the cash contribution is
required only in cases where the size of the development
or the characteristics of the site do not justify the
application of that basic rule.
One can expect the courts to react very differently when
the basic rule is to call for cash contributions, parti-
cularly when those are based on a sliding (density bonus)
scale and the funds are proposed to be used for the acqui-
sition of conservation easements (unusable open space) as
well as for usable open space. Such a scheme might im-
press the court as nothing more than a thinly veiled ex-
cuse for levying a special tax against new development—
a tax which generally is not presently authorized. There
is, in addition, the powerful disincentives associated
with the "prisoner^ dilemma" and "domino" theories. A
plan can be worked out in which the rights purchased or
donated by the individual landowners are held in escrow
until all of the proposed rights have been assembled in
a given area. Failing this the rights would be released
to the original owners. This approach, however, works a
powerful encouragement to the holdout. It is doubtful
that the acquisition plan can be successful unless the
assembling authority has the power of compulsory acqui-
sition.
The Nonprofit Development Corporation
The nonprofit corporation provides an extremely versatile
vehicle for the accomplishment of various public purposes
and it may well be thought that it can provide the vehicle
for applying the profits of development to a broad con-
servation program. One important advantage of the non-
profit corporation is the broad range of choices that it
offers for structuring control and internal governance.
For example, it could .be structured to include all the
residents of the area in its membership with management
elected on a broad basis. At the other extreme the non-
profit format permits a completely nonelective management,
self-perpetuating through appointment by its existing
98
-------
board, or directed from without, through appointment by
a designated person or organization, including appoint-
ment by a local government body.
To make any impression in terms of conservation, how-
ever, the nonprofit corporation would have to maintain
a very substantial competitive advantage over private
developers in the area. This calls for a very large
initial capitalization. The corporation will need a
substantial amount of land for development and a sub-
stantial amount of cash to start up. Here the non-
profit corporation may find that its resources are very
limited. For its start-up capital it will have to rely
on gifts from private sources and grants from govern-
mental sources. Gifts and contributions from private
individuals and organizations are an unlikely source of
its initial capitalization unless they can be qualified
as charitable contributions for tax purposes.
If the corporation's declared purpose is to finance con-
servation out of extensive development activities, it is
doubtful that it could qualify as charity in the first
place. Assuming that this is not a disqualifying factor,
however, the corporation would be hard put to avoid
classification as a private foundation, which would re-
sult in severe limitations on its development activities.
To escape private foundation status, the corporation
would have to establish (under Pennsylvania law) that a
substantial portion (one-third) of its income would be
received from sources other than development activity,
such as government or general public support.
When all is said and done, the fundamental dilemma of the
nonprofit corporation approach is this: to succeed at
all, the corporation would have to be highly competitive
with private developers in the area. So long as the cor-
poration does not occupy a legitimate status as a public
agency, any attempt to favor it (through zoning conces-
sions) will draw legal challenges from private developers
and is probably indefensible legally. The corporation
could legitimately gain an advantage over private de-
velopers under an "incentive" or "bonus" system of zoning
99
-------
applicable to all developers alike, because unlike pri-
vate developers7 the corporation would not be concerned
about its profits.
100
-------
SECTION X
LEGAL AND FINANCIAL ASPECTS OF LAND
DEVELOPMENT CORPORATIONS
The basic assumption underlying the development corpor-
ation idea is that it is initiated by the individual land-
owners themselves, as opposed to a single developer who
assembles the tracts of property needed for a particular
project. It is also assumed that the amount of land con-
trolled by the group is of significant size, so that the
possibility of preservation of lands in their natural
state is not precluded.
Section IX referred to this type of venture as a "de-
velopment corporation." Yet the first question to be
answered is whether the corporate form is indeed the
wisest choice for the group. Although the decision al-
ways depends on the needs of the individual members and
the objectives of the group as a whole, this analysis
points out that for most situations, the corporate form
is not the best choice.
Once such an organization is established, two critical
action paths, which are the focus of this section,
crystalize. One requires that the land to be used in the
venj.ure is either directly held, or within the present or
future control of the development group. The present and
future transfers of rights in land, including less-than-
fee rights such as easements, can take a variety of forms.
It will be argued that the tax consequences of these
various forms will be determinative of the choice of a
particular means of achieving control through transfer of
rights in land.
The second action path requires the acquisition of suf-
ficient funding to initiate the project to any signifi-
cant extent. This section will discuss the forms this
financing can take and the controls that may have to be
sacrificed in order to obtain the sums needed.
The material covered in this section is of necessity a
simplified overview of an extremely large area of the law.
101
-------
The exposition here is designed primarily to acquaint the
uninitiated with some of the subtleties of what other-
wise might seem to be a simple choice. For a more com-
plete analysis the reader should refer to the publica-
tion by Pollak listed in the Appendix.
The Development Corporation Mechanism: A Summary
A corporation, because it is a separate entity, is a use-
ful means of dissociating one's personal activities and
liabilities from that of a business enterprise. In ad-
dition, it has a life of its own, independent of the
mortality or liquidity of its owners. It is hampered by
a tax structure that imposes double taxation on income,
does not maintain the character of income when it is
passed on to shareholders, and does not afford personal
deductions for losses of the corporation. Means are
available to minimize the tax liability established as
a result of this structure. These include compensation
for services rendered by stockholders, interest payments
on shareholder loans, and various fringe benefits to
employee shareholders. Where the corporate tax is less
than the individual tax or where estate considerations
are of major importance, the corporate form is an accept-
able choice.
However, in any attempt to maximize tax avoidance while
talcing advantage of the corporate structure, the dan-
gers inherent in concepts such as unreasonable compen-
sation, accumulation of income, thin incorporation, per-
sonal holding companies, and collapsible corporation,
should be carefully examined such that financial manipu-
lation of the corporation will be tailored to avoid these
penalties.
To a land development group, the corporate structure may
be attractive if only a few landowners are involved, and
if all of them are willing to accept less than maximum
immediate returns in favor of estate planning objectives
or deferred income possibilities. (Other advantages may
be to a great extent obtainable in other business forms.)
This would require an active corporation which could and
would expand, either on the same site or on others, in
102
-------
order to accumulate income legally and avoid taxable
distributions.
However, where larger numbers of landowners are involved,
or different motivations drive the few who participate,
the corporate form by itself is unlikely to be the most
desirable means of doing business, primarily because of
the tax structure and resulting lower returns of in-
vestment.
The Partnership Approach
The partnership offers a land development group the tax
advantages available through direct taxation of income to
partners without any intermediate business entity taxes.
Income and deductions maintain their character when com-
puted in the partner's return and losses may currently be
utilized. During the early years of a land development
group, these advantages make it especially attractive to
have losses'available to offset income from other sources,
For the development group in need of additional land as-
sembly capital, the partnership form should not hinder
the accumulation of such funding, and may in fact prove
more acceptable, when in limited partnership form, to an
investor seeking -a limited liability, profit-making in-
terest in the venture.
The limited partnership offers additional advantages by
effectively minimizing the disadvantages inherent in the
partnershipr form—unlimited liability, lack of central-
ized management, no continuity of life, and limited
transferability of interest.
Where a partnership is chosen as a preferred mode of
doing business, the choice is not^immutable. Dissolution
can be achieved (without recognizing gain), and recon-
stitution as a corporation or other business entity can
easily be arranged. In addition, upon dissolution the
distribution can be made so as to best serve the indivi-
dual tax needs of the partners, i.e. where income is
currently high, property may be handed out; where income
is at an acceptable level, cash may be substituted.
103
-------
The Choice of Organizational Form
In deciding on the choice of business entity, the land-
owner group must be able to articulate its own objectives
and goals/ not only for the venture as a wholet but for
each landowner individually as well. Is profit to be the
primary goal? Are immediate returns more desirable than
building up the value of the investment? Should indi-
vidual risk be eliminated as a factor? Consideration of
these and other issues should lead the group properly to
establish its priorities.
Once these priorities are set., the choice of form can be
narrowed considerably. For example, the corporate form
offers security, investment potential and a lower tax
bracket, coupled with a double tax on dividends and a
variety of penalties for those unsuccessful efforts to
minimize the effects of the double tax. However, so long
as a steady income is achieved and expansion maintained
as a continuing policy, negligible distributions will be
tolerated, and a valuable investment built up.
If the corporate form is desired, the use of multiple
corporations should be considered as a means of further
splitting income and expenses, manipulating debt and
equity interests, and achieving a more or less harmonious
existence with the income tax.
When losses are expected, or where the tax shelters avail-
able from depreciation deductions are desired for per-
sonal use, the partnership form is preferable. The tax
aspects become especially attractive when matched up with
the near-corporate characteristics of a limited partner-
ship.
The other alternatives, such as real estate investment
trusts, are useful only in very narrow situations such as
when active development is eschewed and only holding oper-
ations are contemplated.
Although this section was designed to outline the advan-
tages and risks of various business forms to participating
large landowners, the needs of two other groups should be
104
-------
mentioned: smaller landowners whose property represents
their only significant assets, and corporate or institu-
tional investors.
To the small landowners, the factors in choice of entity
are not very different from those of larger landowners.
It will depend on their desire for immediate security,
or future estate; their desire to participate as share-
holders rather than partners in terms of risk, trans-
ferability and control; and their choice of transfer
strategy for their property. Oftentimes their own per-
sonal needs may conflict with those of a corporation,
i.e. immediate cash needs versus limited liquid corporate
assets. As a result, the choice of business entity may
not be as important a factor in their participation as
the means devised to transfer control of their property
to the development group.
To the corporate or institutional investor, the form
of development group entity is not likely to be a major
consideration. Lenders and participants have been able
to work amenably with virtually all business forms ; far
more important are the prospects for profit and the de-
gree of control that can be wrested from the developer.
Income Tax Aspects of Transfer of Rights in Land
Fee Transfers of Land
If we were to summarize the various forms of fee trans-
fer likely to take place between the development group
and landowners, the most accurate statement would be that
the form used is more likely to reflect the needs and
demands of the vendor than the tax savings available
through one format or another. Where the landowner is
willing to sell yet wants no part of the project, several
choices are available: either an outright purchase is
arranged if he wants to leave the area as well, a sale
with subsequent leaseback is arranged if he wants to stay
and the land is not slated for change in use, or an ex-
change is arranged if he wants to stay but not on property
slated for development. [Naturally, if he doesn't want to
105
-------
sell or otherwise dispose of his land, strategy must be
formulated to deal with the situation. Less-than-fee
transfers are possible with some parcels; others/ unfor-
tunately may have to be left out of the plan.]
Where the landowner does not use the tract in his trade
or business, his options are limited in that a lease is
not advantageous to his tax position. In such cases less-
than-fee acquisition may be more desirable.
The availability of capital gains treatment insures a
reduction on the tax likely to fall on a site when later
developed, by inserting the development group as the
vehicle to recognize gain at the lower rate yet maintain-
ing control and a share of the potential future profit
from that development when it finally occurs.
Where sales are completed, taxation may be spread or
even reduced by use of installments or deferring pay-
ments.
Tax-free exchanges are possible when a residence is in-
volved, when properties are exchanged for one another,
or when property is exchanged for partnership interests
or controlled corporation shares. The advantage is that
no gain is recognized and the income tax may be avoided
entirely by passing on the property through an estate.
In some instances a less quantifiable gain may result by
obtaining a new home or property, even further out in
the desirable quiet countryside or woods than before.
Each of these tax and non-tax aspects of that vital
first transfer of fee should be pointed out to the ven-
dor and used as a means of achieving the necessary as-
semblage of land by the group. What it does with the
land once it acquires it depends on a variety of factors,
the chief one being its intended use.
It should be noted that the tax result to the recipient
of the fee—the development group—was not discussed in
any detail above. In any of the transactions described,
primary emphasis will be on the tax results of the
106
-------
transfer to the landowner, who is, after all, the pos-
sessor of the desired item of commerce; for the group
cash flow results may be more significant than tax
savings. There is usually a premium placed on available
cash during the early stages of a project, and whatever
device reduces the immediate cash outlay least is the
preferred one. The development group will in most cases
have a readily determinable basis in the property ac-
quired—the major tax-related result. Exchanges for
cash, securities or land do not usually result in recog-
nizable gain. A loss that does occur would either be
deductible immediately by the partners, or be offset by
the corporation.
Less Than Fee Acquisition
As a means of achieving tax benefits, the sale of rights
or easements results in reduced cash outlays or perhaps
only transfer of shares for the development group, yet
without adding to the taxable income of the vendor. The
group achieves control without unnecessary expenditures
of funds. The landowner retains the use of the land,
has a greater guarantee of privacy, and perhaps a say in
the future use of both the affected tract and its neigh-
bors. Although it reduces planning flexibility by limit-
ing the options for development, it is a useful device
for maintaining open areas and for assembling land for
future rental use, either commercial, industrial, or resi-
dential.
The Property Tax
In determining policy with respect to property taxes, the
relative advantages accruable to (a) contractual public
arrangements for maintaining open space, on one hand, and
(b) tax deductions available through continued private
holding of the land on the other, must be examined in
order to achieve the most financially favorable position.
Where land is not slated for development, contracts with
public agencies will provide the desired protection from
increased assessments, without the attendant loss of
privacy involved in outright donations (another possible
107
-------
way of avoiding the tax entirely). Where development is a
part of future land use for parcels presently open, change
in assessment as a result of private arrangements is not
likely to take place in view of the administrative diffi-
culties involved. However, property taxes should be
apportioned to reflect the dual ownership; in effect this
serves to reduce the landowner's tax liabilities, and
provides the development group with a sometimes heavy,
but always deductible carrying cost.
Financing Characteristics
The outlook for obtaining initial financing of the devel-
opment group depends very much on both its present needs
and future outlook. Unfortunately, far too often this
boils down to: the less you need cash, the more likely you
are to get it. For example, most developers bear the ini-
tial burden of funding to assemble land, yet to lending
institutions this is the least attractive destination for
their funds, especially if the developer has no plans for
immediate construction.
Modern real estate financing techniques are less likely
to be straight mortgage arrangements, with set interest
rates, than various forms of equity participation. In part,
equity participation is a method of avoiding usuxy problems,
but, perhaps more important to the lending institution,
this serves as the only hedge a long-term lender has against
inflation. The forms these arrangements take vary, and a
brief description of the more popular ones will serve to
apprise the development group of what it may have to face
in order to get sufficient funding.
1. Contingent Interest: This is little more than a
form of additional compensation above that indicated by
the interest rate. Various types of contingent interest
have been devised, including: percentage of gross income,
percentage of gross income in excess of specified per-
centage, percentage of gross income in excess of specified
dollar amount, percentage of average rents, and percentage
of net income.
108
-------
2. Jtertgagee's Participation—Ownership Interest:
Traditionally this involves the lender accepting stock
ownership in the corporation, although it can just as
easily result in a partnership, either as a general
partner in a joint venture, or as a limited partner.
3. Sale-Leaseback; The investor purchases the land
from the developer and then leases it back to him at
a fixed rent. A contingent interest such as percentage
of income may be thrown in, but the primary advantage to
the lender is that the appreciated value of the land
accrues to him and not to the developer. Not surpris-
ingly, this form has not been used in larger, riskier
projects, where appreciation is the most secure form of
profit.
4. Sale Buyback: This is only a variation on a
straight mortgage in that the investor purchases the
land for cash from the developer and then sells it back
to him on long-term installments; it does not hide added
profit to the lender.
5. "Front-Money" Deal: Instead of taking merely
a partial•equity interest in the project, the lender may
assume all fiscal responsibilities, leaving the actual
plan effectuation to the developer, and perhaps half
the profit as well. An example of this type of finacing
is the creation of corporate subsidiaries to develop
land with funds supplied by the parent organization.
6. Sales to "Subdevelopers"; A final approach,
apparently gaining in popularity, involves sales of
parcels to smaller entrepreneurs to develop as they see
fit within the guidelines set forth by the prime devel-
oper of the project.
The key to each of these formats is that in exchange for
foregoing higher interest rates, the investor is likely
to ask for some share of the equity portion of the ven-
ture, or for some access to future profits of the pro-
109
-------
ject should it succeed. In planning for outside fin-
ancial participation, the development group must be
aware of the likely participation demand to be placed
upon them by the potential investor. They must be pre-
pared to give up some measure of control for this sup-
port. However, the stronger their initial position is,
i.e. the less they seem to (or in fact do) need the
money, the less they will have to give up to secure fund-
ing. If no further land purchases are necessary, the
"ultimate position," (short of self-funding to any extent),
will have been achieved. Financing initial infrastruct-
ural and site improvement costs will be expensive but
far easier to obtain once the land is assembled in a
neat package. Thereafter, the particular characteris-
tics of the site and of the proposed plan will determine
the size and cost of financing.
Conclusion
In determining the economic feasibility of the proposal,
data have been gathered on the assumption that develop-
ment that does occur will most resemble open space
cluster communities, in view of the substantial desire
of the landowners to preserve as much of the land in
open or natural use as is possible. It might be added
that in putting such a project together, the amount of
land deemed necessary to properly protect a significant
sector of land may require, and porhaps be~i be realized
by,a development that begins to approach the scale of a
"new town."
It is impossible to conclude unequivocally that a project
of this scope is feasible and definitely will be profit-
able; prerequisites for success are different at every
site, and each site must be tailored to its own dimensions
and peculiarities. Obviously this leaves a great deal of
room for error. What can be said, and perhaps only rather
generally, is that, based on past experience, indications
are that development of open space communities can be
highly profitable, although extending and enlarging the
size of the project may significantly increase the risks
and reduce the profit to a rather tenuous, but still
130
-------
positive level. Only by analyzing the affected prop-
erties individually can more accurate, and perhaps more
optimistic, forecasts be presented.
1U
-------
SECTION XI
ACKNOWLEDGEMENTS
The principal investigator of this project was Ann L.
Strong, Professor of City and Regional Planning, Uni-
versity of Pennsylvania. Her principal collaborator on
the research was John C. Keene, Associate Professor of
City and Regional Planning, University of Pennsylvania.
All work was under their supervision. Beatrice Solomon,
Administrative Assistant, and Laura Kessler, Secretary,
both with the Institute for Environmental Studies,
University of Pennsylvania, contributed to all phases
of the work.
Brandywine-related research was carried out by: Judith
Benedict, Cheryl Wasserman, and Eleanor Webster (citizen
attitudes) and Peter Balitsaris and D. Barlow Burke
(Pennsylvania law).
Research on public regulatory and less-than-fee controls
was carried out by: Sondra K. Slade (Bucks County ease-
ments), Duane E. Ball (-eight states1 program), and Jon
G. Hillsberg (easement law).
The private development consortium research was the work
of Jan Krasnowiecki and Mark Pollak.
-------
SECTION XII
APPENDIX
Publications
Ball, Duane E., "Open Space Preservation: Some Efforts
by State Governments/1 Institute for Environmental
Studies/ Philadelphia, Pa., November 1970.
Benedict, Judith and Wasserman, Cheryl, "The Brandywine:
Five Years After," Institute for Environmental
Studies, Philadelphia, Pa., February 1972.
Hillsberg, Jon G. (A) "The Condemnation of Real Property
Previously Devoted to Public Use with the Focus on
Conservation Easements and Pennsylvania," Institute
for Environmental Studies, Philadelphia, Pa.,
September 1970.
Hillsberg, Jon G. J(E) "The Federal Income, Estate, and
Gift Tax Consequences of the Sale or Gift of a
Conservation Easement," Institute for Environmental
Studies, Philadelphia, Pa., September 1970.
Strong, Ann L. and Keene, John C., "The Brandywine Plan,"
Journal of the American Institute of Planners, Vol.
XXXVI, January 1970.
Krasnowiecki, Jan Z., "The Feasibility of the Private De-
velopment Corporation as a Means of Conserving Open
Space," Institute for Environmental Studies, Phila-
delphia, Pa., April 1971.
Pollak, Mark, "Legal and Financial Aspects of Land Develop-
ment: The Landowner as Developer," Institute for En-
vironmental Studies, Philadelphia, Pa., December 1971.
Slade, Sondra K., "Conservation and Flooding Easements: A
Case Study," Institute for Environmental Studies,
Philadelphia, Pa., December 1970.
Strong, Ann L., "Flood Plain Regulation," Institute for En-
vironmental Studies, Philadelphia, Pa., December 1971.
115
-------
Strong, Ann L., "Crisis Mentality and the Deteriorating
Environment," in Values and Politics in Shaping
America's Environment, Daedalus, Cambridge, Mass.
1970.
Strong, Ann L., with Coughlin, Robert E., Keene, J. C.,
Leopold, Luna B., Stevens, Benjamin H., et al, The
Plan and Program for the Brandywine, Institute for
Environmental Studies, University of Pennsylvania,
Philadelphia, Pa., October 1968.
Strong, Ann L., with Coughlin, Robert E., Keene, John C.,
and Stevens, Benjamin H., "The Brandywine Plan,"
Chester County Water Resources Authority, West
Chester, Pa., April 1968.
Strong, Ann L. and Keene, John C., Brandywine Revisited.
(anticipated publication, 1973).
"Urban Sprawl vs. Planned Growth," 16 mm movie, 21-1/2
minutes, Stuart Finley, for the Institute for
Environmental Studies, Philadelphia, Pa. 1968.
116
«U.S. GOVERNMENT PRINTING OFFICE: 1973 5U-156/360 1-3
-------
SELECTED WATER '• K -•">"- ">'•••
RESOURCES ABSTRACTS
INPUT TRANSACTION FORM
t
w
Envirorunantal Protection Through Public
and Private Development Controls
Strong, A.L., and J. C. Keene
Institute for Environmental Studies
The University of Pennsylvania
3400 Walnut Street
Philadelphia, PA 19174
12. Sr-nsotiK or?Hr -,tioa Environmental Protection Agency
Environmental Protection Agency report number,
EPA-R5-73-018, May 1973.
5. i-.sportL-r.e May 1973
C.
8. I -ioim, .g Orga .-atior.
Rfpc-- No.
16110 EDC
Same
Typ<: •{ Rep*. . and
Period Covered
The studies described herein are an integral part of a much larger study of
land management for purposes of water resource protection. The larger study
is pppularly known as the "Brandywine Project."
The EPA-supported research Is classified into three principal categories:
(1) research directly related to the Brandywine Project; (2) investigation of
public regulatory and less than fee controls on development; and (3) shaping
of the concept of a private development corporation. The research approach is
predominantly legal and governmental. In all instances in which information is
available, citizen response to the various development controls has been
examined and is included in the research reports.
The research conclusion is that greater use of large-scale public and private
control of land development can not only contribute significantly to water
resource protection but will also increase private benefits. We predict
increasing use of these forms of controls despite a substantial amount of
opposition from private landowners.
i?a. Descriptors Attitudes, community development, easements, land tenure, leases,
scenic easements, zoning.
i~b. A//n:i7;>r7 Land use controls, development corporations, conservation easements.
C~<:,VPK Ft-:!'! -
06E,F
1$ : .;-'•>• T 19. Security Class.
GPO (R*P*r.>
-1. Se^'rityCl. is.
(Paee)
21. No. of ~
Pages •
.2. Pl;^e
Send To:
WATER RESOURCES SCIENTIFIC INFORMATION CENTER
U.S. DEPARTMENT OF THE INTERIOR
WASHINGTON. D. C. 2O24O
------- |