UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WATER PLANNING DIVISION
As part of the continuing Water Quality Management Program this
report is being sent to areawide agencies designated under Section
208 and State planning agencies implementing sections 303 and 208 of
the Federal Water Pollution Control Act Amendments of 1972. Legislated
and court imposed deadlines combined with changing technology and water
planning methods make the rapid transfer of information essential. Our
purpose is to stimulate thought and avoid unnecessary duplication but
not to imply a broad EPA endorsement of methods or statements. Our
desire to rapidly distribute reports of potential value to the planning
process will mean that some material will be in an early draft form.
It is hoped that this report contains information which will help estab-
lish the foundation to support the implementation of specific programs
developed through the Water Quality Management Process.
J
ALTERNATIVE GROWTH MANAGEMENT TECHNIQUES
PREPARED FOR NEW CASTLE COUNTY, DELAWARE
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New Castle County, Delaware
208
Area wide Waste Treatment Management Program
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CONTENTS
I. BACKGROUND 1
A. Introduction 1
B. Areas of New Development 3
C. Already Developed Areas 4
D. Growth Management in the New Castle County Area 5
II. ALTERNATIVE TECHNIQUES 9
A. Introduction 9
1. Staging Growth in Accordance with the Adequacy
Public Facilities . 9
a. Ramapo, New York 10
1) Background 10
2) The Terms and Implications of the Approach Used
by Ramapo 11
b. San Jose, California 14
1) Background 14
2) The Terms and Implications of the Approach Used
by San Jose 15
c. Pinellas County, Florida 17
1} Background 17
2} The Terms and triplications of the Approach Used
by Pinellas County 17
d. Montgomery County, Maryland 18
1) Background 18
2) The Terms and Implications of the Approach Used
by Montgomery County 20
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CONTENTS (continued)
2. Population Limitations 25
a. Petaluma, California 25
1) Background ............. 25
2) The Terms and Implications of the Approach Used
by Petaluma 29
b. Boca Raton, Florida .. ... .... ... 34
1) Background . . 34
3. Developer Payment of the Net Costs of a Proposed Development
.Based on a Fiscal Impact Analysis 35
a. Loudoun County, Virginia 36
1) Background . 36
2) The Terms and Implications of the Approach Used
by Loudoun County 38
4. Urban Service Area Delineation . . . ... . . . . 42
a. Mid-Willamette Valley Oregon 43
1) Background ............. 43
2) The Terms and Implications of the Approach Used
in the Mid-Willamette Valley 43
b, Sacramento County, California 46
1) Background 46
2) The Terms and Implications of the Approach Used
by Sacramento County .......... 46
III ASSOCIATED AND SUPPORTIVE POLICIES AND PROGRAMS .... 48
A. Introduction ................. 48
B. Fiscal Policies 49
\. New Development 49
* •
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CONTENTS (continued)
a# Preferential Assessment 50
b. Annexation .... •••••••••• 55
c. Extra-Terr itorio I Powers 56
d. Unearned Increment Tax ...*••••••• 57
2. Already Developed Areas 59
a. Tax Increment Financing 59
b« Investment Patterns 61
c. Tax Incentives 62
C. Policies Concerning the Location and Density of Development .... 63
1« General Techniques 64
a. Land Banking 64
b. Transfer of Developmenr Kignrs ......... 67
1) Small Scale Use of the Concept ...«••• 68
Chicago, Illinois 68
New York City 69
2) Jurisdiction Wide Applications of the Concept ... 69
Fairfax County, Virginia 69
c. - Zoning Mechanisms 72
1) Fiscal Zoning 72
2) Impact Zoning 73
3) Incentive Zoning ....•••••.• 74
2. Techniques for Older Areas 74
a. Industrial Development Corporations 75
1) Evonsville, Indiana ....•««•••• 76
2) Beaumont, Texas 77
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CONTENTS (continued)
b. Strip Commercial Development ...... 80
1) Grand Rapids, Michigan . . . . 80
c. Homesteading 82
D. Policies Conceming-the Administration and Institutionalization of a Growth
Management Program ................ 83
1. Parameters for the Decision Makers Evaluation and Approval
of Applications for Development . . 83
2. Compliance Procedures for Developers 84
3. Mechanisms for Communication Among Policymakers, Developers
and the General Citizen 84
4. Staff Involved with the Growth Management Program ...... 84
5. Responsibility for Processing Permits and Applications Related
to the Land Use Control Program ............. 85
6. Administrative Remedies 86
7. Location of Office and Agencies Which Must be Visited in Order
to Comply with the Prerequisites for Development 86
E. Resource Management Poficies 87
1. Air Quality. ................. 87
a. Indirect Source Controls 88
2. Water Resources 89
3. Energy 91
4. Protection of Valuable Resources and Hazard Areas ...... 92
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CONTENTS (concluded)
IV SUMMARY AND CONCLUSION 94
A. Legal Aspects and Community Impact 97
B. Administrative Efficiency 100
SELECTED BIBLIOGRAPHY 102
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I BACKGROUND
A. Introduction
Our living environment is composed of many natural and man made elements. The
use or abuse of these elements affect the daily lives of all persons in both the short and
long term. Traditionally man has not given due consideration to the long term impact
of either resource usage or the location of man-made systems which has resulted From
population and economic growth. Due to this disregard, many metropolitan areas
throughout the nation have suffered from water shortages, air pollution, water pollution,
decay of the inner city,, inadequate public services, and automobile congestion, just
to name a few. In response to the realization that a negative impact can potentially
result from poorly located public or private development as well as a cognizance of
of resource and energy limitations, many localities have adopted growth management
programs.
A locality's concern with growth need not result in dramatic changes in traditional
land use control mechanisms. "Growth management" only requires that the locality be
cognizant of the direction, rate, and pattern which growth will assume due to the implicit
or explicit impact of public policies and programs. With this knowledge a locality can
determine whether any program or policy changes are necessary in order to attain officially
adopted objectives.
This self-evaluation can be initiated by inventorying the land use environmental
problems and assets in the jurisdiction. Subsequently, programs and policies should be
studied to determine which have implicitly or explicitly contributed fo the problems, and
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which can mitigate the problems and optimize the assets. An example of the results of
such an analysis may be that current fiscal policies may cause premature land conversion
in many cases. A locality could then modify fiscal policies according to desired objectives.
The package of such policies and programs which positively or negatively affect land use
and the environment compose a locality's "growth management program."
A growth management program normally addresses the use of land in terms of a vast
array of environmental, fiscal, social, and economic policies. This contrasts with
traditional land use programs which emphasize the regulation of the location of develop-
ment based solely on the spatial relationships among land uses. However, it has become
evident that control of only the spatial pattern of development through zoning will not
effectively attain public policy objectives. Asa result, many localities have adopted
explicit environmental, fiscal, social, and economic policies in order to provide better
parameters for evaluating the growth potential of already developed areas as well'as areas
of new development.
Policies and programs which address'growth in already developed areas are con-
ceptually similar to those areas in which new development occurs. The greatest
distinction between the programs tailored for older areas and areas of new develop-
ment is that the former generally deals with remedial measures and the latter with
preventive measures. Nevertheless, residents of both areas are concerned with the
same growth related issues, such as, the availability of adequate public services, pollu-
tion, congestion, and property taxes. The similarity of the issues and concerns of all
policy makers and citizens will be evident in the growth management programs utilized
by the jurisdictions described in the next section of this report.
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B. Areas of New Development
In recent years, localities have become concerned with the timing of new develop-
ment in addition to location. The timing of development has a significant influence on
public expenditures and vice versa. Urban and suburban development necessitates
public expenditure on urban services. If a locality is obligated to respond to all service
delivery demands regardless of the location or timing of the development, escalating
taxes and inefficient use of revenues will occur. This situation has been a common
occurrence in most metropolitan areas in the past. For this reason, many localities
util ize a mechanism which links control of the rate of growth with the spatial pattern
of growth in order to ensure that development occurs in accordance with adopted
fiscal, economic, environmental and social policies. In this manner, a locality will
be able to effectively influence the impact of development on the living environment.
In addition, the locality will be able to more easily foresee and evaluate the long
term impact of a development due to its better understanding of how and when land
will be developed.
The most effective vehicle for linking the rate and the pattern of growth as
evidenced by recent experience is the utilization of the provision of urban services
os a contingency for development. Based on legal precedent to date, there are only
three services whose inadequacy can be the primary reason for not permitting new
development; wafer, sewer and highways.
Although water and sewer services are the ma|or concern of this paper, highways
fire also prime determinants of the location and timing of growth. Unfortunately, how-
ever, decisions on primary access roads ore made at another level of government. This
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is the main reason localities focus on the use of their authority over sewer and water
lines as the core of the technique for managing growth. Control over highways could
then be exercised by ensuring consistency between locally programmed sewer and water
systems and federally programmed highway systems through use of the regional trans-
portation plan with which all federal roads must be consistent. However, state roads
need not be consistent with this plan. It is therefore necessary to request that the
state cooperate in the effort to extend these three vital services in a cohesive
manner.
Some localities have attempted to disapprove a development in certain areas on the
basis of inadequate schools. However, measures, such as busing have remedied this
inadequacy. Based on a similar rationale, If the three foregoing vital services are
available, it is unreasonable to deny development because of inadequate fire, health,
or police services.
In essence, the water, sewer, and highway policies and programming are capable
of dictating where and when development takes place. However, this capability can
only be realized if a locality has an explicit growth management program which logically
stages the pattern and timing of growth in accordance with the aforementioned social,
fiscal, environmental and economic policies. In the absence of such an explicit pro-
gram, the locality will only be able to respond to developers' service demand with
little assurance of orderly development.
C. Alreody Developed Areas
Growth in developed areas has two major aspects which are of concern to policy-
makers: in-filling of by-passed areas, and redevelopment of older areas. Redevclop-
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menf in this sense includes the updating of public services, rehabilitation, and other
general activities related to the improvement of the living environment in established
communities.
Developed areas exist in both incorporated and unincorporated areas. This point
is important since it is p common belief that only incorporated areas experience the
types of growth problems which require remedial measures. However, since most
incorporated areas are the centers of "already developed areas, " there are additional
issues which may often times be a major concern. One such concern in the city of
Newark at this time is that of annexation. The manner in which these problems have
been handled in similar situations will be discussed in the forthcoming section of this
report.
D, Growth Management In the New Castle County Area
At this time, New Castle County and surrounding jurisaicnon ao noT nave an
explicit growth management program. However, they have experienced the environ-
mental, and fiscal impact of rapid population growth. The employment opportunity
resulting from new and expanding manufacturing firms is the primary catalyst for popu
lotion growth in the County. The economy of New Castle County is dominated by
the manufacturing industry. In many cases, these industries may magnify the fiscal,
environmental, and social impact of growth. The sources of this impact include, but
are not limited to, resource extraction activites, pollulant by-products, demand for
special public services, and possibly an increased need for low-income housing to
accommodate unskilled (low-paid) workers. Although these same problems exist in
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other metropolitan areas, the magnitude is substantially lessened in areas with a pre-
dominance of service-oriented industry, e.g., Washington, D.C.
If is apparent that a growth management program for New Castle County and surround-
ing jurisdiction must focus on their particular problems and needs. Although an extensive
evaluation of these needs is beyond the scope of this paper, a cognizance of the general
impact of all types of development, with particular consideration of industrial development,
will enable a more realistic presentation and subsequent evaluation and selection of a
growth management technique.
In the event that the jurisdictions in the New Castle County Area decide to "manage
growth" they should consider the regional implications of growth management due to their
interrelated.economies and service delivery systems. The current planning effort pursuant
to Section 208 of the Federal Water Pollution Control Act of 1972 illustrates that the
Jurisdictions in this area are interdependent In many respects. Section 208 is a regional
program primarily due to the scope of sewer problems. The interrelated economies of
member jurisdictions, the economies of sewer facility construction, as well as the past
interjurisdictional cooperation in the use of treatment facilities (e.g., the Wilmington
plant) essentially dictate a regional approach.
The principal issue In the 208 program, as concerns growth management, is the location
of the sewerage systems and treatment facilities in accordance with the required 5-year and
20-year wafer and sewer facilities plan. As related previously, the location and timing of
these facilities have a particularly significant impact on the direction, pattern, and rate
of growth throughout the region. This is often referred to as secondary impacts, and take
the form of burdensome demand for other infrastructure such as schools, police and fire
protection. The costs and problems associated with these secondary impacts arc not
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normally formally considered In subdivision review or rezoning processes. Therefore, the
current 208 effort creates an opportune time to harness the power to control the location
of sewerage facilities as well as other public services as a means of managing growth in
the New Castle County area.
The use of the power to provide services, especially sewer and water, as a growth
management technique has primary relevance to new development. However, already
developed areas may be in need of updating or maintaining its services. This will require
the careful planning and allocation of revenues for investment in the infrastructure in
already developed areas. In essence, the jurisdictions of the New Castle County area
must manage their fiscal capability for the provision of services in a manner which ensures
that the older areas receive a fair share of funding for the construction and maintenance
of capital improvements.
A discussion of the attributes of the major techniques utilized to link the availability
of public services ta the rate and pattern of development follows. Although the character-
istics of the locality which utilizes a particular technique may not resemble New Castle
County, Newark, or Wilmington, it Is still possible to observe the merits and weasknesses
of the various techniques. Each county should therefore be able to adopt and implement
the best alternative given their particular needs and based on the experiences of other
localities.
The discussion of each of these major techniques will include the current relevant
case law. Speculation on the court's interpretation is presented in those instances where
litigation has not been initiated or completed. Several of the "basic legal tests" for
evaluating growth management programs are presented in the concluding section of this
report.
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In conclusion it should be emphasized that the regional implications of growth
management require cooperation among the Involved jurisdictions despite their diverse
problems and potentials. Due consideration must be given to a development in one juris-
diction which may impact a proximate jurisdiction or the entire region. This need not
require implementation of a regionally conceived program. However, any growth manage-
ment program should at least include a means of interjurisdictional influence for the
preservation of the mutual self-interests of each jurisdiction. The interrelationship among
the jurisdictions in these macro-level aspects of growth management should be precisely
defined, and a formal means of communication and cooperation among the concerned
jurisdictions should be institutionalized. This subject will be discussed in the second
report to emerge from this study.
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II ALTERNATIVE TECHNIQUES
A. Introduction
This section will focus on the several approaches which use the provision of services
as a growth management technique. Approaches which use the provision of services
are the most logical and widely accepted means of growth management, and are
particularly relevant to this report because of the 208 effort in the County. Most of
the approaches discussed below are primarty concerned with the service delivery to
new development. Policies are enumerated on "older areas/ " but no enforceable pro-
gram for ensuring the continued adequacy of facilities are set forth in these areas. One
possible execption is the City of San Jose which has earmarked a percentage of two
revenue sources for use in already developed areas.
The supportive mechanism and associated policies for growth management are dis-
cussed in the following section of this report. These will provide additional information
on the available techniques for mitigating the problems associated with growth in already
developed areas.
1, Staging Growth in Accordance with the Adequacy of Public Facilities
Several localities have enacted programs which require a certain measurable
amount of public services prior to granting permission to develop. The most publicized
effort is that of Ramapo, New York. Olher localities include Montgomery County,
Maryland; Pinellas County, Florida, and San Jose, California.
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a. Ramapo, New York
1) Background
The Town of Ramapo, New York amended its zoning ordinance In
1969 with what has become known as an adequate public facilities ordinance. The
situation which precipitated formulation and implementation of this ordinance in Ramapo
is not unique. Among the primary reasons were rapid growth, urban sprawl, increasing
tax burdens, environmental degradation, and the inefficient and inadequate provision
of public services. These same characteristics currently prevail in most metropolitan
communities throughout the nation. It is useful, however, to examine the actual circum-
stances which motivated the local officials of Ramapo to initiate controls on residential
development.
The Town of Ramapo is located in Rockland County. From 19®9 to 1970 the Town's
population more than doubled, reflecting an increase from 35,000 to 76,702 people.
The primary reason for this growth was the ease of commuting to New York City by the
Tappan Zee Bridge. By 1969, it became readily apparent to policymakers that traditional
zoning and subdivision regulations were not adequately controlling Ramapo's burgeoning
growth. However, traditional planning and land use tools were given due consideration
prior to utilization of the Adequate Public Facilities Ordinance.
In addition to the use of traditional land use controls many studies and reports were
conducted to guide policy and decision making.. These reports included a four-volume
study of existing land uses, public facilities, demographic projections, housing market
demand, and access systems. This exhaustive evaluation of current problems and pro-
jections of the future needs proved to be instrumental in the New York Supreme Court's
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2) The Terms and Implications of the Approach Used by Ramapo
The adopted Adequate Public Facilities Ordinance created a special
permit system for residential development. The granting of a permit to a developer is
contingent upon the amount of "development points" accorded to the property. The
points are a measurement of the adequacy of public services in the area. The standards
for these facilities and services are set forth below:
"Section 46-13.1 D. Standards for Issuance of
Special Permits
"No special permit shall be issued by the Town
Board unless the residential development has
available fifteen (15) development points on
the following scale of values:
0) Sewers
(a) public sewers available in RR-50, R-40,
R-35, R-25, R-15, and R-15S districts . . . . 5 points
(b) Package Sewer Plants ........ 3 points
(c) .County approved septic system in
an RR-80 district . 3 points
(d) All others 0 points
(2) Drainage
Percentage of Required Drainage Capacity Available
(a) 100% or more 5 points
(b) 90% to 99.9% .....4 points
(c) 80% to 89.9% .......... 3 points
(d) 65% to 79.9% ........... 2 points
(e) 50% to 64.9% 1 point
(f) Less than 50% . 0 points
(3) Improved Public Park or Recreation Facility
Including Public School Site
(a) Within 1/4 mile ^ ........ 5 points
(b) Within 1/2 mile .......... 3 points
(c) Within 1 mile . 1 point
(d) Further than 1 mile ......... 0 points
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(4) State, County, or Town Mojor, Secondary, or
Collector Road(s) Improved with Curbs and
Sidewalks
(a) Direct Access .......... 5 points
(b) Within 1/2 mile ...» 3 points
(c) Within 1 mile 1 point
(<0 Further than 1 mile 0 points
(5) Fire House
(a) Within 1 mile .......... 3 points
(b) Within 2 miles . 1 point
(c) Further than 2 miles 0 points
All distances shall be computed from the proposed location of each
separate lot or plot capable of being improved with a residential
dwelling and not from the boundaries of the entire parcel. The Town
Board shall issue the special permit specifying the number of dwelling
units that meet the standards set forth herein.
The ordinance further provides that a property owner has a vested interest in the
facilities programmed to serve his property. A permit will be issued at a specified
future date regardless of whether the facilities are available as programmed. A permit
to build at this future date can be issued at any time, and the permit is assignable as a
part of the property.
A developer who wishes to build prior to the programmed date may "advance the
date of authorization by agreeing to provide such improvements as will bring the develop-
ment within the required number of points for earlier or immediate development."
Two safeguards exist to ensure due process and to avoid unreasonable burdens on
property owners: tax relief and variance procedures. Areas which cannot be developed
for a period of time may apply for a tax readjustment which reflects the current dimin-
ished value of the property. In addition a property owner who can demonstrate that
restriction does not allow a reasonable return, and the proposed use is consistent with
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the comprehensive plan, may be granted a variance. These two relief mechanisms con-
tributed to the success of the Ramapo ordinance in the New York Supreme Court.
The several vital program elements described above were conscientiously integrated
in the ordinance by the formulator, Robert Freilich. The variances, vested rights,
temporary restrictions, tax relief, housing policies, and method of measuring facility
adequacy were necessary to ensure the legitimacy of the ordinance.
Despite these provisions, the Ramapo ordinance was challenged in court. Although
the ordinance was upheld, it contains a major weakness which may result in future
litigation.
This weakness is the absence of an effective housing program for low- and moderate-
Income residents. The ordinance has the potential to result in the maintenance of an
enclave of low income minority residents, enveloped by middle and upper income
residents. Surprisingly, however, a footnote of the New York Supreme Court's opinion
relates that:
"Significantly, for (1960) only one-half of one percent
of all housing units were occupied by non-white families.
Efforts at adjusting this disparity are reflected in the
creation of a public housing authority's proposal to con-
struct biracial low income housing. (285 N.E.2d at 295.)"
However, this effort culminated in the creation of only 198 units, 75 percent of which
ore for the elderly, and an increase in the black population to one percent of the total
population. Future attraction of low-income residents is unlikely due to the absence
of both zoning for multi-family units and applications for additional federal low income
housing projects. This limited initiative in attracting low income housing supports the
view that the housing policy and program effort in Ramapo only superficially addresses
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When one jurisdiction such as Ramapo will not absorb its fair share of the housing
market, the housing problem throughout the region becomes magnified. Other juris-
dictions in the New York City area will inadvertently be forced to accommodate the
housing demand deflected from Ramapo.
The current predisposition of the jurisdictions in the New Castle County Area to
cooperate in the preparation of their respective growth management policies apd pro-
grams v/i 11 facilitate mitigation of any adverse regional impact on housing. However,
this assumes that the several jurisdictions will agree to channel housing demands into
those areas best suited for residential development. This includes the allocation of
low-income housing in a manner which ensures that each jurisdiction absorbs its fair
share, and a single jurisdiction does not receive a disproportionate amount of low income
housing. Accomplishment of this balance of residential development should be a major
objective of the current cooperative effort by the jurisdictions in the New Castle Area
in an attempt to safeguard their respectively adopted growth management programs from
litigation.
b. San Jose, California
1) Background
The city of San Jose is characterized by all the attributes of suburban-
ization: excessive amounts of pavement, impersonal middle class housing tracts, depen-
dence on the automobile, limited cultural and social activity, and over-burdened public
facilities. Toward the end of the 1960's, the city became increasingly concerned with
this situation and adopted several policies on land conversion in 1970. These policies
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of the capacity of the facilities. The core of the development policy was a land
classification scheme system. In accordance with the scheme, areas with utilities or
public facilities within five years are classified as "urban;" and areas on the urban
fringe are designated "urban reserve." However, this system did not effectively link
ihe adequacy of facilities to the rate and location of development. Policies were
prepared which merely addressed issues and problems related to the conversion of land
on the urban fringe.
2) The Terms and Implications of the Approach Used by San Jose
Officials in San Jose successfully formulated growth policies, but
did not follow through in the implementation phase. This inaction resulted in a citizens
initiative to accomplish some of the officially adopted public policy objectives.
The only major action taken by the locaf officials attain these policies was the
adoption of a taxation system whereby developers are subject to an excise tax on the
construction of buildings and on purchasers on the transfer of property. In both cases,
75 percent of the revenues must be expended for certain public improvements in the
area from where it was taken. The improvement for which the revenues can be used are:
• libraries
o fire protection
© parks, playgrounds, and recreation facilities
• city maintenance yards for parks
© cily public works maintenance yards
o communications facilities
This method of taxation will result in continued investment in these particular com-
munity services for the residents of the city. The major asset of this approach is that it
is a revolving fund which docs not need appropriation annually. In this manner, the
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residents can be assured that money will be continuously available, and not subject
to the political whims of the local legislative officials. Ho.vever, this observation
would not be valid in the event of a stagnant housing market. In effect, this revenue
source will only be useful in high growth areas where there is a significant turnover in
old housing as well as construction of new housing.
The capita! improvements which benefit from these revenues did not include lessen-
ing the burden on overcrowded schools. In reaction, the city residents petitioned,
received and won a referendum for an ordinance which prohibited additional residential
zoning in overcrowded school districts. The ordinance also required an elaborate study
of the costs and benefits of growth. The objective of this inifative was to alleviate the
burden placed upon schools due to the inability of school districts to keep pace with
population expansion. Therefore, the adopted ordinance required an elaborate study of
the costs and benefits of growth and prohibited additional residential zoning in over-
crowded school districts.
As stated previously, the use of school capacity as the primary reason for disapprov-
ing development is nof generally recognized as valid, although the San Jose measure
was upheld by the court in its initial ruling. The reason for this ruling could be the
magnitude of the problem, and does not necessarily represent endorsement of the regula-
tion of development to lessen the burden on schools. This approach is vulnerable to being
challenged in court on the basis that it is an unreasonable means to a legitimate end.
There are alternative, less-drastic means of lessening the burden on the schools.
Despite this general inconsistency in the court's ruling, the important lesson to
emerge from the San Jose experience is that extreme overburdening of any service can
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justify the imposition of, at least,a temporary restriction on growth. If is the respon-
sibility of local officials to plan and program facilities in order to avoid the need to
mitigate a crises situation through the imposition of unreasonable restrictions on development.
c. Pinellas County, Florida
1) Background
Pinellas County is part of the Tampa-Sf. Petersburg S.M.S.A. which
is located on the Gulf of Mexico in Central Florida. The 1970 population of the county
was 522,329. This was a 39.4 percent increase over the 1960 population.
Growth management was initiated in the county due to severe water shortages.
Drought and population increases had increased water usage. The County feared salt
water intrusion into the acquifer from which their county water supply v/as drawn.
2) The Terms and Implications of the Approach Used by Pinellas County
In response to the water supply problem, on 20 July 1973, the Board
of County Commissioners authorized a forty-five day ban on new construction which
utilized the county wafer system. On July 25, 1973, the County adopted procedures
to determine which building permits could be issued. Receipt of a permit necessitafed
demonstrating that potable wafer was available from a source other than the county water
system.
The moratorium lasted four months, until a growth policy and wafer allocation
system were put in effect. The system requires all development In unincorporated areas
to receive a water allocation prior to the receipt of a building permit. The developer
can hook into one of the several non-county water systems, if he provides the county
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The Pinellas County growth management system also utilizes a user fee
system. The Water Development Board estimates water usage which indicates
the necessary size of the water meter, and then charges an impact fee based
on the size of the meter. In a similar manner, the School Board is proposing
to charge a school impact fee on new development. This approach essentially
attempts to pass the costs of service provision on to the developer. Although
this is a supportive-not core-growth management technique in Pinellas County,
Loudon County, Virginia, has used this as their primary technique. The Loudon
County approach will be discussed further on.
There have been no court tests on the Pinellas county approach to date.
This may be due to the well-recognized nature of the problem, and the compelling
need to prevent salt water intrusion. In any event, the Pinellas County experience
reinforces the premise that if the problem is sufficiently severe, restriction
on development will be acceptable to the residents as well as to the courts.
Hie greatest weakness in this type of approach is that it is remedial
rather than preventive in nature. Effective and efficient obviation of poten-
tial problems and resource shortages requires foresight and the implementation
of the appropriate regulations. However, this approach is oftentimes not
politically feasible due to the uncertainties as to whether the problems will
occur for which the preventive measures were undetaken.
d. Montgomery County, Maryland
1) Background
Montgomery County is located within the Washington, D.C., S.M.S.A.
From 1970 to 1970 it experienced a 53.3 percent population increase; the 1960
population was 340,928 and the 1970 population was 522,809.
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Growth ond development in the county were first responsibly approached in 1967.
Of particular concern to the Health Department at this time was the health hazard
created by the improper use of septic tanks. In response to the concern over septic
fields expressed by the County Health Department the County Council proposed a
"ftemature Subdivision Ordinance." The objective was to control subdivision practices
in unsewered areas, and to prevent the improper use of septic tanks. Subsequent to the
introduction of the proposed ordinance, the people in the up-county unsewered areas
verbalized their opposition to the ordinance at public hearings. Due to this opposition,
ihe proposed ordinance was rescinded and a committee was appointed to study and
evaluate the methods of avoiding premature subdivisions.
In November, 1968, the committee's report was published. The report stressed the
reasonable use of land and stated that an ordinance which addresses the premature
development of land must be related to area master plans which delineate "premature
areas." It" was further recommended that no action should be taken to regulate or define
"premature subdivisions" until area master plans were completed in 1970.
Due to these recommendations and the absence of valid plans for the development
of the county, the premature subdivision ordinance was not reintroduced in the County
Council. Nevertheless, the premature subdivision was not totally disregarded in sub-
sequent years. This ordinance, as prepared by the County's General Counsel in 1967,
provided the framework for the formulation of the Adequate Public Facilities Ordinance
in 1973. The Adequate Public Facilities Ordinance was an amendment to the county
subdivision regulations. This ordinance was essentially adopted to mitigate problems
which resulted from a state-imposed sewer moratorium.
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The sewer moratorium was imposed in 1970 by the Maryland Department of Health
ond Mental Hygiene due to overflowing sewers in the Cabin John and Anacostia drain-
age basins. Despite the moratorium, which essentially covered all the areas with
potential for development in the county, developers continued to file subdivision plan
applications. The subdivision review office had no reason to disapprove submitted plans
if they complied with site design requirements according to the subdivision regulations.
The result was that many subdividers had plan approval, but were constrained from
beginning development due to the moratorium. Problems and conflicts occurred as some
developers found loopholes which qualified them for sewer service. Additional problems
also ensued when a plan approved in 1970 was found io be inconsistent with the area master
plan of a later date. The subdivider would desire a renewal of his plan approval due to
his inability to begin the development w.ithin the required period of time, and the County
would desire to disapprove the plan on the basis of the new area master plan.
The Planning Board wanted to control this situation by requiring the existence of
adequate facilities, including sewer, prior to subdivision plan approval. In this manner,
a subdivider could not circumvent the sewer moratorium, and the County had time to
responsibly plan for the appropriate scale and location of development through the
preparation of a growth management strategy. To accomplish this, the Adequate Public
Facilities Ordinance was adopted.
2) The Terms and Implications of the Approach Used by Montgomery
County
The Adequale Public Facilities Ordinance requires the existence of
facilities capable of supporting a proposed subdivision prior to subdivision approval. It
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Many of the conditions upon which approval is dependent are not specific measures
of adequacy. Approval is essentially subject to a judgmental determination of adequacy.
However, several of the criteria address capacities and therefore can be measured,
although specific measures are not stated in the ordinance. In abbreviated form, these
criteria are:
1. Access systems
a) a form of mass transportation must be planned or
exist within 1/3 mile
b) the highways in the area must be able to
accommodate projected traffic
2. Water and sewerage systems
a) adequate systems must be available or programmed
within two years of the application for these systems
b) if unavailable, they may be provided by the developer
if the Maryland Department of Health and Mental
Hygiene approves the facilities
c) septic systems may be used if in accordance with
Montgomery County Code or the Maryland Code,
whichever is more stringent
3. Road systems with the subdivision
a) these must be adequate to accommodate emergency
vehicles
b) fragmentation of the street pattern must be avoided
c) the road system must not be detrimental to the
reasonable development of adjacent lands
The remainder of the conditions for application approval are not as definitive. In
an effort to remove some of the ambiguity of the ordinance, the planning staff has
published guidelines for the measurement of the adequacy of road systems. To date,
there has been no clarification of the compliance requirements for the following criteria.
In abbreviated form these criteria are:
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1. Community services and facilities
a) facilities such as schools and police stations must be
available or scheduled to provide "adequate and
timely service to the subdivision."
2. Evaluation of the general impact of the proposal
o) the possible impact on population density in the area
must be determined
b) the need for excessive public expenditures must be
determined
c) the proposed development's relationship with the
area's master plan and adjacent lands must be
determined
The developer is required to supply the necessary information to demonstrate the
adequacy of facilities in accordance with the above criteria. The County provided
guidelines for the submittal of this information.
The subdivision plan which includes the required information on the adequacy of
facilities is supplied to the planning staff for their review. This information package is
then forwarded to the Planning Board. The Board must make a decision on the plan
within a sixty-day period. The sixty-day time limit can be extended upon agreement
between the applicant and the County Board. If the time limit is not adhered to by the
County Board, no administrative remedies exist for the applicant. The only recourse is
litigation.
A plan can be approved, disapproved, or approved with contingencies. If dis-
approval is based on the inadequacy of certain public facilities, a developer can agree
to complete all required public improvements. In this event, the developer must assure
completion of the facilities by obtaining such permits, bonds, or sureties as may be
required by law. The ordinance contains no procedures for the granting of approval for
a subdivision in the future based on the capital improvements plan.
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No revisions of the ordinance have occurred since 1973, and none are currently
in process. The only activity concerning the ordinance is the initiation of a mechanism
to explain the requifements of the ordinonce to the developers in the area. In this
manner/ the County hopes to facilitate developer compliance with the ordinonce when
the moratorium is lifted and subdivision activity resumes.
In addition to the exact terms of the ordinance, it is also of interest to examine
the policymaking arid planning processes which are related to implementation of the
ordinance. The County has attempted to formulate a growth management strategy and
specific policies for guiding growth. The effort included the creation of a citizens com-
mittee to study the problem of growth, a growth conference and publication of reports
on recommended policies by both citizens and the County Planning Board.
This process began in June 1973 wit.h the adoption of a work program and to date
has resulted in the publication of the first annua! growth strategy by the Planning Board.
Billed as a "Framework for Action," this report set forth in simple terms the relationship
among the problems and issues which must be integrated into the growth policy formula-
tion process. The policy recommendations in this report generally reflected the elements
of the final report by the Advisory Committee. The growth policy report was submitted
to the Council for their use in the formulation of growth management policies and programs.
No further action on the formulation of policies and programs for growth manage-
ment have taken place since publication of the first annual growth policy in November,
1974. However, further action is necessary in order fo initiate the processes necessary
to gain public acceptance and endorsement of the policies set forth in the growth
management document os well as any programs for their implementation, It is vital
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to all growth management efforts, that the citizens be aware of proposed policies,
programs and regulations. In the absence of public endorsement and cooperation, the
program will not be effective.
The Montgomery County Ordinance is currently being challenged in Court. The
exact terms of this litigation are still questionable. However, the greatest weaknesses
in the ordinance involve administrative procedures. Criteria for the measurement of the
adequacy of facilities, a formula for cost allocation to developers, and a vested interest
In subdivisions given adequate facilities are among the administrative elements in need
of greatest definition.
The greatest impact of these weaknesses is the imposition of compliance difficulties
on the developer. This situation raises legal questions as to the reasonableness of the
means embodied in the ordinance.
The current effort to aid developers, who wish to submit a subdivision application
when fhe moratorium is terminated, is the first step in clarifying the compliance pro-
cedures for the developer. Due consideration should be given to the formalization of
the provision of assistance to developers through the adoption of rules and regulations
which state the explicit terms of compliance, and the responsibilities of both the County
and the developer. In this manner, the potential for abuse of the power to approve a
subdivision will be diminished, and the financial burdens placed on the developer due
to the uncertainties of plan approval will be alleviated. Given these minor revisions
and refinements, the Montgomery County Adequate Public Facilities Ordinance is an
example of an effective and equitable mechanism for the attainment of fiscal and service
delivery objectives.
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2. Population Limitations
This approach generally sets a finite limit on growth in accordance with the
anticipated availability of one or all public services. Experience to date does not
indicate that the courts or citizens generally favor this approach. This will be examined
in more detail in the discussion which follows.
a. Petaluma, California
1) Background
Initiation of a growth management program by the City of Petaluma
was precipitated by rapid growth during the 1960's and early 1970's. In 1950 the popu-
lation of Petaluma was 10,315, by 1970 it had increased to 24,870, and by the end of
1972 it was estimated at 30,050.
In 1970 and 1971, approximately 2,000 housing units were approved for future con-
struction. There Was no evidence to indicate that the growth in Petaluma would sub-
side and return to the 500-unit a year ./growth rate which characterized the early 1960's.
The growth rate of the early 1970's and the awareness that it would continue, precipitated
a change in the attitude of the residents of Petaluma. They realized that the continu-
ation of these growth trends would result in devastation of the "small town character" of
the city.
Asa consequence of the implications of this accelerated growth, the major political
issue in 1971 was the mechanisms available to control the city's growth. In pursuit of
a solution fo prevalent growth problems and to guage the sentiment of Pelaluma's citizens,
a questionnqire was mailed out with the water bills. This questionnaire addressed the
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a limitation of the city's population to 40,000. However, a large percentage also
desired bettef employment opportunity in Petaluma. This presented a conflict since
increased employment would also increase population growth pressures.
The results of the questionnaire and the issues raised by a consultant's discussion
paper which analyzed these results were addressed at a two-day public forum on the
16th and 17th of April, 1971. A "Statement of Development Policy" emerged from this
meeting. The conflict between the residents' desire for both increased employment
opportunity and a limitation on growth was not resolved during this meeting. The major
focus and direction of the residential development policy statement was the control of
growth and preservation of the city's character, while the core of the industrial and
commercial development policies was to attract "appropriate industrial development"
with "desirable tenants." This is essence established a policy to attain and maintain a
middle to high income status of the community. These development policy statements
inferred the exclusion of low-income residents and blue collar workers. Evidence that
this implied exclusionary objective would be realized is presented in the forthcoming
discussion of Petaluma's Residential Development Program.
Based on the April policy statement, the cily officials set forth an "Official State-
ment of Development Policy" on May 11, 1971, which established the annual limit of
500 housing units. In the initial April discussion of policies, it was stated that the
growth management objectives could be achieved-by a "policy of controlled growth
related to I he City's ability to provide services and to the distribution and character
of new development."
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The revised ond adopted "Official Policy Statement" was published in May 1,971.
These were as follows:
"I. POLICIES RELATING TO RATE, DISTRIBUTION AND QUALITY OF
CITY-WIDE DEVELOPMENT
A, In order to protect Its small town character and surrounding
open space, it shall be the policy of the City to control its
future rate and distribution of growth. A five-year develop-
ment strategy is feasible and shall be based on the following
criteria:
1. Development rate shall be tied to school and utility
capacily and the balance or imbalance shall be
constantly monitored and adjusted.
2. A growth rate of between five and seven percent or about
500 dwelling units annually shall be the City's growth
policy.
3. The County is hereby solicited to ensure that all urban
and suburban development-in the vicinity of Petaluma
is approved by and is acceptable for annexation to the
City without exception.
4. An east-west balance shall be encouraged in considering
new development."(Emphasis added)
It should be noted that the wording of the May policy statement is different than
that which was proposed in April. The development rate in the May document was sla
as a function of school and utility capacity, but the 500-unit limit was not related to
any capactiy measurement and was established as the growth policy for the next five
years. In addition, no process was created for the monitoring or adjusting (called for
in policy number one) to tie the growth rate to publifc facility capacity. The April
document also set forth that the five to seven percent increase was chosen because it
was "manageable," not because the fiscal ability of the city could support it. These
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These aspects of the policy statement represent to major weaknesses in the approach.
In genera! terms these are:
1. The absence of a direct relationship between the rate of
growth and fiscal capacity.
2. The city's disregard of its responsibility for absorbing its fair
share of the housing market demand.
Subsequent to the City's policymaking efforfs/ a hierarchy of planning and design
control documents was established to implement officially adopted public policy. Of
particular interest is the Environmental Design plans for the district of Petaluma. The
environmental design plan (EDP) addresses the spatial pattern and rate of development
for all land uses—commercial, industrial and residential—by district, within the city.
Policies for consideration and approval of applications for residential development
in accordance with the applicable EDP was set forth in Resolution No. 6028 N.C.S#/
"Resolution of Policy Respecting Residential Construction and Population Growth and
Reaffirming the Cessation of the Zoning Moratorium. "
In further response to the need to specifically enumerate the rationale and procedures
for the regulation of residential growth, the General Plan was modified to include a
Housing Element in July 1972. This provided an analysis of the housing needs of the
community, as well as set forth recommendations for fulfilling these needs. In essence,
the Housing Element was a refinement of the Environmental Design Plan.
Asa subplan to the EDP, the Housing Element provided data which justified a con-
trol strategy which was only applicable to residential development. To enable imple-
mentation of the residential development policies and to fulfill the needs recognized in
the Mousing Element, a "Residential Control System" was created by Resolution No.
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The Residential Control System was perceived by its originators as the major
implementation technique for the growth management program in Pctaluma. Despite
the court's finding that the system was unconstitutional, it is still in operation due to a
stay pending appeal granted by Justice Douglas in September 1974. The following dis-
cussion presents insights as to the means and implications of the implementation of the
system.
2) The Terms and Implications of the Approach Used by Petaluma
The Residential Control System as originally proposed in July 1972
would have required that 8-12 percent of the annua! development quota be low- and
moderate-income housing. However, the resolution which created the Residential
Development System in August 1972, stated that "the Council may require that between
8-12 percent of each year's total quota shall be low- and moderateincome housing. "
(Emphasis added.) This alteration in the language of the resolution would not enable
the effective amelioration of the probable increased housing costs and the housing
scarcities which would result from the City's growth management programs. A required
low-income housing element would be a legitimate demonstration of a desire to remedy
housing problems, while merely permitting low-income housing construction does not
have the same implications. This omission of a positive housing program was detrimental
lo the defense of the growth management program in the case of Construction Industry
Association v. Petaluma.
Another weakness in the Residential Development System is the method used for
evaluating development applications. The evaluation focuses on three major criteria:
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1. Conformity with official local plans
2. Availability of public services and facilities
3. Quality of design and contribution of public welfare and amenity
The major problem with the set of criteria for application evaluation is that it would
be purely subjective. The importance placed on different design elements, measures of
the availability of public services, and amenities should be related to specific guide-
lines, otherwise it is unlikely that the criteria will be consistently applied in the same
manner to all development applications. This system is likely to be abused to suit the
prejudices of the evaluator.
The development evaluation system not only has a high potential for abuse, but if
also imposes unreasonable burdens on the construction industry. A developer must be
able to secure financing and conduct other front-end activities which are time and
money consuming prior to submittal of an application. After this investment, it is likely
that the application will not be approved. This system contrasts significantly with the
Ramapo approach where a developer is assured of the right to build on a specific date.
This assurance removes the uncertainties which characterize the.Petaluma program.
The final decision on development allotment awards in the Petaluma program is.
made by the City Council. This decision is a function of the points acquired through
evaluation in accordance with the aforementioned criteria, as well as the location,
quantity, and the type of units proposed. However, due to ihe other variables such as
regulations on the type and amount of housing units at a given location, a high ranking
development will not necessarily be approved. This system is noticeably judgmental and
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In addition to the arbitrary evaluation and uncertainties discussed above, the
pro.qram imposes a 100-unit limit on the development activity of a single developer.
This is seemingly to avoid giving any one developer a large proportion of the annual
quota of units. However'- a developer msut engage in economically feasible activities,
and consequently this may dictate a larger scale development than permitted. This will
particularly characterize Planned Unit Development (P.U.D.) which would involve
different densities of land use, and would iherefore of necessity be at a larger scale
than typical tract housing. This constraint on the developer is magnified by the estab-
lishment of a quota on the housing types which can be built annually. A developer with
a proposed P.U.D. may find that he can build the single family homes proposed in his
development application, but that the quota for fov/nhouses is filled. This situation
also does not facilitate the developer's use of innovative approaches or the provision of
a balanced mix of housing types in a single development. The system does provide some
flexibility in allocation of development permits. However, permission to build in excess
of the quota must be judiciously employed or the quota for years to come would be
drastically reduced.
Before being subjected to these procedures and uncertainties most developers would
seek development potential elsewhere in the region. The system in effect discourages
application for a development permit and iherefore implicitly discourages growth. The
plaintiffs in the Pelaluma case referred to it as a hazing system. The Pelaluma approach
will likely result in increased growth pressures on olher cilies in ihe region, and con-
sequently these other cities may consider implementation of a similar system.
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The hardship on the developer imposed by the Petaluma system is difficult to
qualify. The d eveloper is not merely a subject of growth manatemenl, he is integral
to the process. In the event of undue hardship on development activity or on the
activity of any segment of society, the question of the legitmacy of the program will
inevitably be put forth.
The Construction Industry Association questioned the constitutionality of Petaluma's
land use regulation program in Federal district court and won. In January 1974, Judge
Burke, in an oral decision, declared all the ordinances and policies which attempted to
numerically limit the city's population growth unconstitutional.
The sole basis for this decision was that it violated the fundamental right to travel.
For this reason, it was not necessary for the court to consider the arguments as to the
ordinance's invalidity under the Commerce lav/ or equal protection clause. To support
his decision, Judge Burke relied heavily upon the Edwards v. California, supra (314
U.S. at 173-174), case. This case sets forth the reasoning that a single state cannot
"isolate itself from the difficulties common to all of them by restraining the transportation
of persons and property across its borders," 314 U.S. af 184. However, a restriction on
travel can be valid if a compelling state interest exists. The city claimed three com-
pelling state interests:
1. Inadequate sewage treatment facilities exist to support more
rapid growth.
2. An inadequate water supply exists to support more rapid growth.
3. Zoning powers provide the rights to regulate the rale of growth.
The plaintiffs were able to demonstrate that the rationale and data employed to
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the process of being expanded, and had the potential for additional expansion. Similarly,
plaintiffs showed that there was no connection between the water supply and the zoning
restrictions. The court concluded:
"Defendants have purposefully calculated future water
needs based upon their own projections which implemented
the disputed five hundred unit per year limitation. The
City then requested an amount of water which would satisfy
the demand of such an artificially limited population.
The implications of the opinion in terms of general growth management techniques
may influence the direction and interpretation of ordinances in the future. Of particular
interest was the court's comment on the accommodation of housing market demand. If
interpreted literally, the following statement could mean that a locality cannot slow
its growth rate in accordance with fiscal capabilities, but rather must accommodate the
rate determined by market demand.
"Such holding is intended to encompass, not only the out-
right numerical limitations upon the issuance of building
permits, but also any and all features of the plan which,
directly or indirectly, seek to control population growth,
by any means other than market demands,
Integral to this statement was the court's response to the city's contention that funds
for new public facilities must be voted by the residents and therefore the city cannot
ensure sufficient expansion of facilities to accommodate market demand for housing:
"Neilher Pclaluma city officials, nor the local electorate
may use their power to disapprove bonds al the polls as a ^
weapon to define or destroy fundamental constitutional rights."
^Construction Industry v. City of Pctoluma, 6 E.R.C. M60
2 Ibid.
^Ibid.
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These two statements imply that a city cannot stage its growth rate (assuming it is
below market demand) in accordance with its ability to fund public services, e.g., the
capital improvements program. This is the precise concept upon which the Ramapo
approach was founded. The reasonableness test may be appropriately involked to qualify
Ramapo as a valid exercise of police power, but the conflicting legalperspecfives pre-
sented in these two cases is notable. It also reinforces the legal principle that litigation
involving a municipality's use of land use regulations can only appropriately be decided'
on the circumstances particular to that case.
The weaknesses in the Petaluma approach do no emanate from the fundamental
concept Involved but rather the specific program formulated to implement the concept.
If should be restated that the underlying concept of regulating growth in accordance
with public services and maintaining a community's character—to a reasonable extent—
ore valid objectives. The residential development program, however, does not achieve
these objectives. The stated purposes of Petaluma's growth management program embody
these legitimate objectives, and technically the residential development program seem-
ingly achieve these purposes. Conflicts arise when one realistically considers the
operation of the private housing development market and the needs of low and middle
income families. These conflicts in the pursuit of legitimate objectives must be resolved
in order to ensure an effective and equitabfe program.
Other legal and socioeconomic questions arise from the Petaluma approach, but the
primary focus is the true motivations for formulation of the residential development con-
trol system. Evidence indicates that the motivations may include the maintenance of a
relatively elite small town, with total disregard of regional housing needs. In the future,
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the legal, social, and political motivations of land use controls may be subject to increased
judicial interpretation and moy consequently be required to reflect regional and national
ond national responsibilities.
b. Boca Raton, Florida
1) Background
Boca Raton, Florida, does not have the common problems of metro-
politan area sprawl. The town is located on the Atlantic Coast, 40 miles north of Miami.
Due to its ideal location for second home development and residences for retired persons,
the population increased by 310% from 1960 to 1970. The 1960 population increase was
6,961; in 107~ it was 28,542; in 1973 the estimated population was 41,000.
Prior to this dramatic increase in population the town was composed primarily of
*
single family homes surrounding the exclusive Boca Raton Club, Subsequent to a surge in
apartment house construction, the balance of single family homes and apartments is about
even.
Interested residents in the town organized a group called the "Citizens for Reasonable
Growth:" to devise a means of coping with the town's rampant growth. This group prepared
a charter amendment which would limit growth to 40,000 housing units, or about 105,000
persons. The proposed charter amendment was adopted by referendum on November 7, 1972.
To allow time to plan and implement the provisions of the amendment, a series of
moratorium ordinances were initiated on 8 November 1972, and extended through 19 April
1974. During this time the.city prepared lower density zoning categories that would apply
throughout the jurisdiction. The moratorium and variance procedures did not apply to
single family or duplex units.
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The Boca Raton situation is not similor to that of New Castle County in any manner.
Development in Boca Raton normally results in fiscal surpluses rather than deficits as
characterizes most predominantly residential areas. The determinant of the rate of growth
in Boca Raton is therefore not fiscal capability to provide adequate public services. There
is also no natural water shortage in the forseeable future which would constrain develop-
ment. Their motivation is simply that rapid growth was causing the destruction of the way
of life in the city.
Two lawsuits are currently pending in the courts; one in Federal Court and one in the
Palm Beach Circuit Court, The general issues are similar to those in Petaluma. The
plaintiffs feel the ordinance constitutes a taking due to the arbitrary population limitation;
the wealthy status of the community implies exclusionary motivations; the right to travel
may be impeded. These lawsuits have not yet been heard. Therefore if would be pre-
mature to comment on the legal viability of their approach at this time.
3. Developer Payment of the Net Costs of a Proposed Development Based on a
Fiscal Impact Analysis
Many approaches consider the fiscal impact of development, but few actually
ufilize an explicit analysis as a means of passing on "net costs" to the developer. Net
costs generally mean the costs of service provision to the property less the amount of
revenue which will be received from the development. Loudoun County, Virginia, adopted
on ordinance in 1972 which embodied this approach.
The major objective of this approach is the stablization of tax rates and orderly, well-
balanced development. This technique is not suitable for areas such as Boca Raton, Florida,
where development generally results in fiscal surpluses. However, the fiscal impact meth-
odology can be useful to all jurisdictions as one of the several criteria for evaluating pro-
posed development. This will be examined in greater detail in the next section of this report,
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o. Loudoun County, Virginia
1) Background
Loudoun County is located in the Washington D.C. SMSA. Since it
is approximately 30 miles from downtown Washington, the county was not subject to pres-
sures to urbanize until the 1960's. There was a 51 .3% population increase during that
decade, The 1960 population was 24,450 and the 1970 population was 37,150.
The county is particularly interested in preserving its historical and cultural attri-
butes from uncontrolled urbanization- One of the techniques used to preserve these
attributes is the designation of historical districts.
Another major county concern is the increasing tax burden which has resulted from
urbanization. The suburban-type development which occurred In the 1960's did not "pay
its way." As a result the rural residents were required to pay higher taxes which in effect
subsidized the new development. This situation was the basis for initially conceptualizing
o system for the evaluation of development in terms of public costs incurred and revenues
rendered. In addition, as a traditionally rural county, the visibility of the government
has been very low in the past. Demands for and therefore the costs of county services and
facilities had been minimal until the recent surge of urbanization. This is evident by the
fact that the major service demanded by the rural residents is the school system. The need
for increased police protection, extensive and modern libraries, community centers, and
parks essentially originated with the residents of the new developments during the 1960's.
The potential adverse fiscal effects of urbanization were magnified in 1970, when
Levitt, a major residential developer, proposed a planned community in the unincorporated
section of the county. The community, as originally proposed, would cover 1,270 acres
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with 4,235 units, housing approximately 13,000 persons at a cost (and taxable property
worth) of 125 million dollars.
The Board denied Levitt's proposed planning community on the basis lhat the develop-
ment would require more public expenditure than it would produce in revenues. This would
therefore probably necessitate an increase in the property tax rale or an alternative form
of taxation. It was not reasonable to expect current residents to pay for the services
delivered to the residents of Levitt's community. The Circuit Court of Loudoun County
upheld the Board's decision, stating that the economic effect of a development was a
valid criterion for evaluation of a proposed rezoning. In response to this decision, Levitt
appealed to the Virginia Supreme Court.
With judicial endorsement of this approach, and after a twenty-one month zoning
moratorium, a new zoning ordinance was adopted in June, 1972. This ordinance incor-
porated the already adopted Article 12 which institutionalized a fiscal impact analysis
procedure and required the developer to pay the "net costs." Net costs represent the
costs in excess of revenues gained, less what would have been provided in the absence
of a rezoning.
Levitt withdrew his appeal to the Virginia Supreme Court, and attempted to negotiate
with the County based on the terms of Article 12. Levitt was willing to comply with
Article 12, as well as modify his site plan in accordance with the Board's recommendations.
He filed another zoning amendment petition in August, 1972.
Evidence indicates that Levitt made a good faith effort to comply with the require-
ments of Article 12 in an attempt to mitigate any adverse fiscal impact. However, realiza-
tion of a fiscal benefit for llic County is not necessarily sufficient to qualify for a rezoning.
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Article 12 also provides that the land must be suitable for the proposed use, that it suits
the future needs of the County, and that the timing of the development is appropriate.
Despite ihe concessions made by Levitt, in July, 1974, the second zoning map
amendment petition was denied. Litigation has not yet been initiated, but the County
anticipates It in the near future. The Board did not state a reason for denying the rezon-
ing this second time.
In the absence of an official statement by the Board, the record of the Planning
Commission is the only source for information on the County official's general attitude
tov/ard the Levitt proposal. The Commission's recommendation for denial of the rezoning
application was based on the immediate need for public facilities which would be gener-
ated by the'development and the lack of revenues In the short term fo pay for them. It
was apparent that in the long run, the development would not be fiscally detrimental, but
in the interim, a tax rate increase would probably be necessary.
2) The Terms and Implications of the Approached Used by Loudoun County
Article 12 of Loudoun County's zoning ordinance of 1972 is the core of
the growth management program. The purposes of Article 1 2 of the zoning ordinance are
to ensure the provision of adequate facilities, the maintenance of a reasonable rale and
pattern of growth, and the preservation of historical and natural features. In addition, a
major objective is lo ensure that ihe fiscal impact of urbanization would be beneficial
through the assignment of the costs of services to a developer in accordance with the ser-
vices received.
The process involved in the implementation of Article 12 begins with an application
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it to the Planning Commission. With planning staff assistance and pursuant to a public
hearing, the Commission recommends approval or disapproval to the Board. The Com-
mission has 90 days afler the first meeting on the application to report to the Board.
Inaction during this period will be interpreted as an approval. In evaluating an appli-
cation, the Planning Commission and Board are to consider the gdequacy of public facilities,
the conservation of natural and historical features, and the current and future needs of
Loudoun County residents.
Section 1208.2 of the Zoning Ordinance requires that adequate highways, utilities,
ond other community facilities be available to accommodate the development. The other
criteria, such as a development's anticipated impact on the environment or its suitability
for the residents, are purely judgmental, and can be reason for application denial even
though the requirements for facility adequacy are fulfilled. This results in compliance
difficulties for the developer since these criteria are unrneasurable, and he is subject to
the possible arbitrary judgment of the Board.
The Board has no time limit on its response to rezoning applications. Currently, it is
not unusual to wait 12-M months for a final decision on an application. It must be noted,
however, that during the wait period, negotiations and application revisions are on-going,
and decisions on applications are made in the order in which the applications arc filed.
In this manner, an applicant can be certain that a later applicant will not get approval
and therefore, sewer and water allocations not be made before a decision on his application
is granted.
Article 12 further provides for developer payment for the capital costs incurred for
the payment of the net costs of required facilities which would not be provided in the
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obscnce of rczoning. To facilitate implementation of this provision the County staff
prepared a formula for a cost/revenue analysis. In costs allocation, a developer is given
credit for the amount of revenues produced during the facility's period of depreciation to
avoid double taxation. Current tax rates are used to determine revenues received during
the ten-year depreciation period since the major objective of this program is to prevent
lax rate increases. This policy has questionable validity since it is unrealistic to assume
total effectiveness and efficiency in program administration/ and therefore the rnciintenance
of a constant tax rate over the next ten years. It is also assumed that the proportion of
each revenue dollar (.15) currently spent for capital expenses will be constant during the
depreciation period. Therefore, .15 of the revenues produced by a developer during this
period is credited to the developer. The operating costs (.85 of revenues received) are
not credited since only capita! costs are shifted to the developer. The developer also
receives credit for the cost of the services which would have been delivered if the land
had been developed without a rezoning.
The formula described above is not the only one which may be used. If a developer
submits a valid cost/revenue analysis, it may be used to determine the costs attributable
to his rezoning.
In addition to Article 12 of the zoning ordinance, the subdivision regulations contain
a similar provision for the recognition and disapproval of premature subdivisions based on
the unavailability of adequate facilities. If adeqate drainage, schools, high\vays, water
supply, or sewer will not be provided within the next two fiscal years, the subdivision
will not be approved J This clause of the subdivision ordinance has not been used, and
1 ~
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Courtly would necessitate a rczoning before application for subdivision approval. Therefore,
If a development passes the restriction imposed by Article 1 2 of the Zoning Ordinance, it
will logically comply with Section 906 of the subdivision regulations. This subdivision
provision will be useful in the event that Article 12 of the zoning ordinance is declared
invalid, or if the County is rezoned according to desired use rather than the current large
lot zoning.
The major weaknesses in the Loudoun approach are the non-use or evaluation of
alternatives, less-disruptive approaches, and the imposition of an unreasonable burden on
developers.
No indication exists that the County used alternative, less controversial techniques
for land use regulation prior to the adoption of Article 12. The traditional low visibility
of the county government resulted in minimal involvement in land use regulation in the
past. This non-use of alternative planning techniques and the absence of a zoning map
which reflects the desired development and land use, may render Article 12 unreasonable
despite judicial endorsement of the concept in the Levitt Case. Although the Circuit
Court Judge endorsed the concept of a fiscal impact analysis for new development, this
cannot be interpreted as an endorsement of the specific means in which the concept was
institutionalized in Loudoun County. There are many alternative means for institutionaliz-
ing this concept and one of these alternatives may be considered less-disruptive of traditional
procedures for rczoning and less of a burden on developers.
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In terms of the burden on ihc developer, the con-Miance procedures ond uncertainties
of application approval may result in extreme financial burdens. "This is primarily due to
the absence of explicit criteria for compliance with the requirements of Article 12. The
developer can not be confident that his petition complies with public policy. He must
therefore assume all the front end costs associated with petition preparation, impact
analysis, and the interest on the property in question.
It is evident thai the absence of specific compliance requirements and consequently
the burden on the developer will potentially be the most vulnerable point for litigation.
If Article 12 were represented as an interim measure until the preparation of a more com-
prehensive program, the ordinance may be more defensible, however,. it is currently
apparent that the formulation of a refined, more comprehensive program will necessitate
the inclusion of legal safeguards to remedy current legal defects in Article 12 and to avoid
an unfavorable ruling in the courts.
4. Urban Service Area Delineation
Several localities have established a boundary within which urban growlh shall
occur. Urban services'are not extended beyond this line. The prime motivating factor
for the use of this approach by the two cases discussed below is the preservation of prime
agricultural lands. This is supplemented by a basic concern with the economical and
efficient use of urban services, the attainment of orderly development, and the need for
attaining and maintaining a suitable living environment.
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a. Mid-Willamcttc Vol Icy, Oregon
1) Background
The Slate of Oregon contains 97,000 square miles, with a population of
2,100,000. Although the Willamette Valley contains only 5% of the state's land area,
66% of the state's population live there. The City of Salem and the Counties of Marion
and Polk are located in the Valley. Due to fertile soils and a long growing season, this
area is the nation's largest, non-grain food processing center. However, the fertile soils
in the area are increasingly being encroached upon by unmanaged urbanization.
2) The Terms and Implications of the Approach Used in the Mid-Willamette
Valley
In response to this growth issue, the Mid-Willamette Valley Council of
Governments adopted a motion in August 1970 that "development work on comprehensive
plans now underway for Marion and Polk Counties and the City of Salem include the
delineation of an optimum urban growth boundary for the central city of Salem."
An understanding of the implications of delineating an urban service area was pursued
through several studies of its possible impact on fiscal and institutional characteristics,
spatial patterns, land use, and the community. This effort was directed by an advisory
committee composed of local officials, planning commission members, and lay citizens.
The committee determined seven parameters upon which to draw the urban service boundary:
1) natural features such as ridge lines, streamways, prime farmlands,
flood plains, and soil types;
2) capability for sewer service from a gravity flow system;
3) economic factors;
4) adequate buildable land area to meet projected lond use needs
and provide ample choice of locations for a variety of uses;
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5) governmental boundaries, e.g., service districts;
6) goals and policies of the comprehensive plan, and
7) land use and transportation patterns.
Subsequent to public debate, slide shows, and other community interaction efforts,
a consensus was reached on the need for an urban growth policy and boundary. An inter-
governmental agreement was then prepared. It included the following objectives and
policies:
Objectives
1) to contain urban development within planned urban areas where
basic services such as sewer, water facilities, policy and fire
protection can be effeciently and economically provided;
2) to conserve resources by encouraging orderly development of land;
3) to preserve farmland and open space;
4) to make more economical use of local tax dollars in locating facilities
and providing) services;
5) to provide property owners greater security in long-range planning
and investments;
6) to make it possible for utility extensions, transportation facilities,
and schools to be designed and located to more closely match
population growlh, and
7) to preserve and enhance the livabilily of the area.
Policies
1) future urban development shall be contained within the geographical
limits of an urban growlh boundary,"
2) an urban growth boundary shall be established by the parties hereto and
said parlies shall take the necessary action to have the boundary and the
policies herein set forth made a part of their respective comprehensive
plans;
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3) the orea oulside fhe urban growth boundary shall bo maintained with
low-density living areas, open space lands, and other uses compatible
with the intent oF the urban growlh policies;
4) oil parties shall work toward the development of the most efficient- and
economical method for providing specific urban services to the area
within the urban growth boundary;
5} oil parties should encourage the orderly annexation to the city of Salem
of fhe land within the urban growlh boundary, and
6) all parties shall work toward improved delivery systems of services
that require coordination by larger units of government.
The resultant urban growth boundary encompasses 70 square miles and can accommodate
approximately 300,000 persons. Upon reaching this capacity, the local officials will need
to evaluate their options. These options include; but are not limited to: the expansion
of the boundary, redevelopment to higher density, or the dispersal of employment centers
and therefore population growth.
Of particular interest is the intergovernmental cooperation which enabled this regional
growth policy. The'authority of each jurisdiction was not compromised or diluted in any
manner. They merely realized that the only logica ! and effective means of managing
growth for their mutual benefit was through a cooperative agreement.
The foregoing policies represent a milestone in their cooperative effort. If effectively
implemented, the stated objectives will be attained. However, it is unclear as to fhe
enforceability of the agreement. The general po!iticol disfavor of regionally enforceable
policies is a deterrent to flic adoption of an enforceable agreement. Therefore most
localities will only be receptive to a formal, unenforceable agreement to perform accord-
ing fo adopted policy. The'jurisdictions in the New Castle area should seriously consider
fhe preparation of such an agreement.
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b. Sacramento County, California
1) Background
Sacramento is located northeast of the San Francisco Bay area. This
area is characterized by productive agricultural soil. In 1972, 66% of all county land
was in agricultural use.
A major concern of residents and policymakers in Sacramento is the preservation of
prime agricultural land. The location of growth is more of a concern than the rate of
growth. In response to this need to responsibly channel the location of growth, urban
service areas were delineated.
2) TheTerms and Implications of the Approach used by Sacramento County
The urban service areas are defined as a policy guide for the use of
many controls including traditional zoning, public service provision, and environmental
controls. The urban service area is delineated'around the city of Sacramento based on
anticipated 1990 land use needs. High priority is placed on the development of leap-
frogged lands within the area. In September 1974, 50% of the land within the line was
vacant or in agricultural use. The county desired to encourage development of these
lands and to preserve prime agricultural lands outside the urbanized areas.
In-filling by-passed areas was also sought due to the economies of scale which occur
through optimizing the use of existent public services. Urban sprawl aggravates the tax
burden on county residents. For this reason and for the preservation of agricultural lands,
a land classification scheme was formulated to guide policy and program implementation.
These are:
o Permanent Agricultural areas: Within designated areas zoning regulations
prohibit the creation of small uncnconomical parcels, or any development
incompatible with agricultural uses. Urban services arc not extended, and
propc;rty owners are encouraged to seek lax relief under the preferential
assessment program.
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• Agricultural-Recreation Reserve areas: Flood plains, and land with
scenic or natural resource value arc designated for agricultural or
open space use during the 20-ycar plan period. Land use in these
areas is controlled through flood plain zoning, subdivision control,
preferential tax assessment, and the non-provision of public services.
• Agricultura I-Urban Reserve areas: Land within this aren does not have
urban services and will be released for development when the need is
established.
0 Agr? cut jural-Residential areas: Large lot rural residential area are
allowed in this classification.
The interesting aspect of the Sacramento approach is that they have tailored all their
programs which directly or indirectly influence land use in accordance with their precisely
defined land development objectives. Many localities do not realize the indirect impact
of many fiscal/ environmental, and socio-economic policies and programs on land use. By
contrast, Sacramento is primarily concerned with the location of development and they
consciously utilize a broad range of policies as tools for attaining these locational
objectives.
There have been two suits filed in reaction to the urban service area delineation.
Both suits were by the same developer who desired to subdivide 2700 acreas outside the
urban limit I me. The first suit contended that conservationists conspired to prevent his
development; this was dismissed for lack of cause. The second case contended that the
county planning department had conspired to prevent the development; in preliminary
hearing the judge stated there was insufficient evidence to support hts contention.
Although the challenging of this system is not passed, the initial rulings indicate that
it is legally acceptable. However, further court rulings will provide the additional
definition of this system which will ensure its legitimacy.
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Ill ASSOCIATED AND SUPPORTIVE POLICIES AND PROGRAMS
A. Introduction
A growth management program must be a package of many policies and programs. A
major technique as represented in Section II will not be effective without the concurrent
implementation of supportive policies and programs. This need not require thejmplemen-
tatlon of new techniques but may only necessitate an evaluation of existing policies to
ensure consistency with growth objectives. These supportive policies and programs are
related to fiscal, economic development, environmental, institutional, and community
development issues. The evaluation and revision process must ascertain the implicit and
explicit impact of the policy or program on all sectors of the community as well as on
neighboring jurisdictions. In this manner, local officials can understand its influence on
the growth and living environment of neighboring jurisdictions as well as its susccpfability
to influence by these jurisdictions. A locality will also be in a better position to weave
a package of consistent policies and programs which appropriately provide the necessary
Incentives and disincentives in pursuant of growth objectives.
This section includes many programs and policies which have been tailored to support
officially adopted growth management objectives which arc unique to a particular locality.
Although these specific programs cannot be transplanted for use by jurisdictions in the
New Castle County area, each program does illustrate the multi-dimensional nature of
growth. In addition, the concept which underlies a particular program can be modified
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ft. Fiscal Policies
The fiscal impact of different types of development is evident in most metropolitan
areas. Both the suburbs and the center cities are suffering adverse fiscal conditions due
to rampant or stagnant growth. The exceptions are cities like the previously discussed
Boca Raton, Florida, which are subject to fiscal surpluses. This situation is primarily due
to the wealth of the community and the relatively low demand for certain public services
such as schools.
Several techniques have evolved which address fiscal problems in all sectors of metro-
polilan areas. The primary mechanism in most cases Involves o cost/revenue analysis of
new development or redevelopment. This mechanism is then reinforced by various tax
incentives and disincentives for accomplishing fiscal and land use objectives. Experiences
v/ith various fiscal techniques are presented below for jurisdictions which are predominantly
« •
concerned with new development and those concerned with redevelopment.
1 • -New Development
/
Jurisdictions on the urban fringe use fiscal measures to accomplish several
general objectives:
o preservation of prime or productive agricultural lands,
scenic arcas( historic areas, and other valuable non-
intensive use areas
o discouragement of "leapfrogging"
o recapturing of public expenditures due lo fiscal non-
beneficial development
o deterrence of speculation and unearned profits
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Measures which focus on one of these objectives Is also likely to pursue the other
objectives, implicitly or explicitly. Therefore the following discussion does not specifi-
cally differentiate among programs which pursue one or all of these objectives.
a. Preferential Assessment
Preservation of unique areas ond the avoidance of premature development is
facilitated in many areas through a system of preferential assessment. This technique pro-
vides that land is faxed af actual use value rather than potential use value. A method for
recapturing tax benefits when the land is developed or when an agreement on the duration
of the tax benefits is violated is vital to the success of this technique. Otherwise the
system would be open to speculators who could hold property relatively tax-free and
enjoy substantial windfall profits.
The system proposed in 1973 in Prince George's County, Maryland, is presented as
an illustration of a potentially viable mechanism. This system provides a fax credit for
"scenic easements. " Sites which qualify for assessment as a scenic easement and the
scale of fax credits granted are represented on the table below.
If a property owner revokes the easement granted before the expiration date, he Is
liable for all taxes not paid with interest of 6% per annum ond a penalty assessed at 3%
of (he tax advantage gained,
A property owner who is interested in a scenic easement, applies to ihe Park and
Planning Commission. Subsequently a certification of acceptance is recorded with the
land records to the effect that an easement has been granted.
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Incremental Scenic Easement Scale
Historic Structures*
Historic Sites
Historic Districts
Proposed Parks
Unique Nalural Areas
Archaeological Sites
Private Open Space
Recrealional Uses
Private Open Space
Non-RccreaJ ional
Floodplains, Conser-
vation Areas, Stream
Valleys
Years
10 15 20 25 30 35 40 45 50 100 Perpetual
No'increase from initial assessment**
- 50 55 60 65 70 75 -
- 50 55 60 65 70 75 -
If site is to be Until excavation is
excavated. 100% complete.
5% 10% 15% 20% 25% 40%
- 25 30 40 50 75
100%
100%
100%
100%
100%
50%
90
100%
* An easement on an historical structure shall be permitted only with an accompanying
easement on the site beneath it.
**AII improvements made to restore the structure to authentic original specifications shall
be exempt from tax assessment.
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Certain covenants exist for use of land granted an casement. These arc:
o The property shall not he used for any professional or commercial
activities, except such as can be and are in fact conducted for a
residential dwelling, without alteration on the dwelling; except
lhat tracts of land containing in excess of fifty acres may be used
for privately owned country clubs, commercial golf courses and
gold driving ranges.
o No advertising signs or billboards shall be displayed or placed
Upon the lane), with the exception of professional name plates
and signs not larger than two square feet advertising home
occupations or products or the sale or lease of the lands.
o No mining or industrial activity shall be conducted on the lands.
o No building shall be erected, altered, placed or permitted to be
buiif on such lands; except, that on each five acre parcel thereof
there is permitted to remain one detached single-family dwelling
and such guest house, garage, stable or other out-buildings which
may be required for the need of the owner or occupant of such
residence. In no case shall any building constructed on the lands
described herein be used for any of the purposes which are expressly
prohibited in this article.
o No tree larger than six inches in diameter and thirty feet in height
shall be cut down without the written permission of the grantee or
its authorized representative; except, that clearing such land for
site improvement, road construction or removing trees for the purpose
of protecting utility lines and to eliminate a hazard to persons or
property may be exercised without" prior permission if no more than
twenty such trees are to be cut.
© No dump of ashes, trash or any unsightly offensive material shall
be placed upon the land; except, that in eroding areas of a drainage
system where surface water runoff is destroying the natural ground
cover, suitable heavy fill may be so placed as to control and
prevent further erosion, provided, that such fill is covered by
arable soil or humus.
o No major public utility installation such as electric generating
electric, electric power transmission lines, gas generating plants,
gas storage tanks, micro-wave relay stations or telephone exchanges
shall be constructed or placed on the land. Nothing in this sub-
section shall be dcqmed to prevent I ho construction or maintenance
on, over or under the land of facilities usual to a resicfental
neighborhood, such as telephone and clectiic lines, water mains,
sewer mains and gas mains, pipes or conduits, and necessary related
equipment, together with such removal of trees, as shall bo required
for such construction and maintenance.
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In effect this sytem sets forth that it is in the public interest io preserve designated
oreas for a period of time and this public interest benefit is paid for by the property taxes
not received by the county.
This system must be modified in order to suit the needs of a locality who desires to
deter leapfrogging or to grant lax relief to property owners who are restricted from develop
men! (e.g., Ramapo). In these and similar cases the locality must ensure that those who
benefit from the extension of public services pay for thai benefit. This can be achieved
through a number of mechanisms. The most common one associated with tax relief systems
is the tax roll-back which is required upon application for the subdivision of preferentially
assessed property.
The proposed Fairfax County Open Space Land Act includes tax roll-back provisions
when the use of properly is changed to a non-qualifying use. The roll-back tax consists
of the amount equal to the taxes due during the last five years prior to the use change in
the absence of a special assessment. This amount is subject to a 6% per annum interest
rale. This approach differs from that of Prince George's in that it requires all property
to pay the roll-back tax upon change to a non-qualifying use; Prince George's County
only requires payment in the event a change occurs prior to an agreed upon date. How-
ever, the Prince George's system has the advantage of receiving a commitment from the
property owner for a specified period of time. Preferentially assessed property in Fairfax
is subject to renewal annually.
In effect, lhese two counties have used the same concqpt to pursue distinct objectives:
o Prince George's County desires lo purchase, for the public benefit,
certain scenic areas for a period of lime through lax deductions.
o Fairfax County desires to alleviate land conversion pressures on
open space land until the property is suitable for development
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In a similar manner, each jurisdiction wishing to use a preferential assessment system
must first define its purpose or purposes and then tailor this concept to its particular needs.
Recapturing the costs of public investment as a major growth management technique
was presented in the discussion of the Loudoun County approach. This objective is also
pursued through suboramare techniques in localities which either have chosen another
major growth management technique or do not consciously engage in "growlh management. "
Traditionally, the special assessment has been levied on new development subsequent
to the actual receipt of permission to subdivide and construct the proposed units. This
contrasts with more recent measures which require developer payment for, or construction
of facilities or services In order to receive permission to subdivide.
Normally developers can only be asked to pay for services and facililies which benefit
the residents of the proposed development. However, this was modified by the case of
Ayres v. City of Los Angeles which established that developers could be required to
dedicate and improve lands wiiere a portion of the benefit accrued to the general public.
The most recent effort to require developers to pay their way is the process of
negotiation as represented by the Loudoun County approach. This baragaining can be
formal in accordance with a well-defined process, or informal in accordance with the
general acceptance by the courts, local officials, and developers that a locality has a
right to ensure their fiscal stability and the equity of their tax assessment procedures,.
This cognizance of fiscal impact also requires locality's to responsibly manage its revenue,
impose equitable taxation and fees, and attain a suitable properly tax base.
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b. Annexation
In pursuit of a suitable tax base many city's engage in annexation. Since
ihe 1950's most large cities throughout the nation have not annexed any territory. However,
annexation has been continuously pursued by medium and small size cities. The reasons for
limited annexation activity is the availability of alternative techniques for dealing with
problems on the urban-rural fringe and the decreasing glory attributed to the largest and
fastest growing areas.
Annexation is pursued for several purposes:
1) Health problems due to sewage disposal or housing conditions
in the fringe unincorporated areas.
2) Demand for city services in the fringe unincorporated areas.
3) Expansion of the city's property tax base.
4) The city's desire for influence over suburbanization of fringe areas.
It is the latter three purposes which prevail the majority of the time. The alternative
fo annexation for the second purpose is the provision of required services at a premium
price, However/ the county will then reap any fiscal surpluses or deficits to accrue from
ihe property taxes.
Most cities desire to annex property which results in fiscal surpluses in order to
increase the property tax base. However, the county would also desire to keep the property
for the same reason. In this event, the logical solution is to give that governmental'entity
which provides the majority of services control over the properly. If this results in
annexation, ihe city should compensate ihe county for county facilities in the areas:
"(1) the city would have to assume the county debt attributable
to the area, and would have to pay ihe county for any facilities
it had built in the area; (2) the city was entitled to benefit from
the construction of slate highways in the area, which it would
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"undeveloped state; (3) earl/ annexation might have been pre-
doveloped state; (3) earl/ annexation might have been pre-
mature, might have miscalculated the direction of urban growth,
and would have involved the cit/ in the expensive extension of
Services over sparsely-developed areas; ('I) early annexation of
the area when it was undeveloped would have resulted in leap-
frog development by builders who would have wanted Jo escape
city regulation; and (5) the slatutory conferment of extra!erriiorial
subdivision control on the city was intended fo substitute for annex-
ation while an outlying area was being developed." (County of
Norfolk v. City of Portsmouth, 186 Va. 1032, 45 S.E.2nd 136)
(1947) p. 362.
Annexation of vacant land is generally supported if urbanization is imminent and the city
will be expected to provide the necessary urban services. (County of Chesterfield v.
Berborich, 199Va. 500, 100 S. E.2nd 701) (1957).
Proposed developments or already developed areas on the fringe of the city which
yield a fiscal deficit are not welcomed annexation areas. If the property is annexed prior
to the proposed development activity, the city .can disapprove or approve with contingencies
a proposed development based on subdivision or re-zoning regulations. However, if
residents of already developed, fiscal-deficit areas petition for annexation, the specific
provisions of the state enabling authority for annexation will determine whether it can be
denied due to fiscal impact.
c. Extra -Territorial Powers
Mel hods exist for preventing the approval of developments which yield fiscal
deficits or unreasonable environmental, social, governmental, natural resource character
istics of the city. Many states grant cities "extra-ferriferial powers" for one to five miles
outside I he city's boundaries. Any development—public, or private—must undergo the city's
development review and approval system. In this manner a city can influence development
which may require city services or result in spin-off growth, air pollution, or highway
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congestion. With this extra-territorial power, the problems for which annexation is seen
os a solution, can be circumvented. The distrust among cities and counties can also be
averted through a cooperative effort to plon and develop the ?.one of mutual interest along
ihe [uri'sdicfionaf boundaries. In this manner, annexation can be based on logical analysis
of service delivery patterns and political considerations which benefit the resident of ihe
area without causing either Jurisdiction lo suffer.
^• Unearned Increment Tax
Another technique for avoiding fiscally detrimental development and pre-
mature subdivision is an unearned increment fax. This lax is levied on landowners whose
property value rises due to the location of a public facility such as a rapid transit station
or the provision of urban services. The State of Vermont imposed such a fax on May 1,
1973. The tax is applied to any land transfer and is graduated on the basis of Kvo variables:
the number of years the owner held the land, and the profit margin as a percentage of
original cost.
To be an accurate reflection of "unearned incremental" value, the profit margin
variable should differentiate between the value increases attributable to private invest-
ment and those attributable to public investment. This may be accomplished through
evaluation of comparable property in the vicinity which has been subject to similar public
investment and no substantial private investment. In this manner, a person whose property
value increased due to rehabilitation or new construction is not unreasonably burdened.
This additional variable would not impede obtaining ihe objective of deterring speculators
who hold vacant land until property value increases duo solely to public investment.
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The Vermont progrorn fakes llicse factors into consideration by only taxing vacant
land which is held for less than six years. The chart below presents 1 he Vermont graduated
"cap!tal gains tax":
* Gain,
as a Percentage of Ba
sis (Tax Cost)
Years Land Held by
0-99%
100-1 99%
200% or more
Transferor
Tax on Gain
Less than 1 year
30%
45%
60%
1 year, but less than 2
25%
37.5%
50%.
2 years, but less than 3
20%
30%
40%
3 years, but less than 4
15%
22.5%'
30%
4 years, but less than 5
10%
15%
20%
5 years, but less than 6
5%
7.5%
10%
(*Gain, as percent of basis, shall be rounded to the next highest whole percentage.)
In February 1974, the Vermont Supreme Court upheld this capital gains tax.
The effectiveness of the tax was not ascertainable through the literature readily avail-
able. However, in June 1974 one author noted that there were indications that the tax Is
being passed on to ihe land purchasers with no real impact on the market itself. If this is
o valid assessment, the lax is not an effective means of deterring speculation although it
does raise additional revenues for public purchase of conservation areas and open space.
The recapturing of windfall profits due to public investment should be balanced by a
provision for "wipeouts" due to public investment. Properly value which is substantially
decreased due to the location of airports, garbage dumps and other nuisance facilities
should be compensated out of the revenues gained from taxing windfall profits. This
comnensation should not opply to mere dowiv/.oning unless the action is a result of the
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treatment of down zoning, and whether it constitutes a taking which requires compensation.
Jn any event, under a program wit!) which focuses on "windfalls and wipeouts" it is not
appropriate to include downzoning issues.
2. Already Developed Areas
Fiscal issues in jurisdictions which ore already developed normally reflect a
dwindling tax base and a need to provide incentives for economic and residential redevelop-
ment. The following discussion presents several programs which have been utilized to resolve
these problems.
a* Tax Increment Financing
The State Housing and Redevelopment' Act of Minnesota describes a method
of renewal known as Tax Increment Financing, This system provides the locality with
means of financing redevelopment and renewal'projects without Federal support . To
facilitate understanding the terms of a lax increment financing system, the steps for its
implementation are presented;
o The local housing authority must prepare a redevelopment plan
based on a survey and analysis of community needs, problems,
and redevelopment opportunity.
o The redevelopment' plcm is reviewed by the planning commission
and submitted to the municipal council for review and approval.
A public hearing follows.
o Financing of the project is provided through the sale of general
obligation bonds.
© Properties identified for redevelopment ore acquired ond cleared
or rehabilitated and resold to private owners. The cleared land
must be redeveloped in accordance with public directives as a
contingency of the sale.
o The difference between lite amount or the properly taxes received
before and after redevelopment is referred to as "lax increments. "
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e The fax increments are earmarked for redemption of flic general
obligation bonds which were sold to finance the project.
This system requires that any approved redevelopment project must yield greater
revenues after development than before. Therefore sale to o tax exempt organization,
or conversion to a public use such as a park are not appropriate redevelopment activities.
This system can be used for a single project on a small parcel, or a substantial redevelop-
ment project which encompasses several blocks.
A potential weakness in ihe Minnesota approach is that it does not consider the
increased on-going service delivery costs of the redevelopment area.
The terms of taxation of the redeveloped area are subject to negotiation. The city
desires to attract businesses into relatively high risk areas. . This entails the use of some
form of incentive. One such incentive is the assurance of a static tax payment for a period
of. t i me, normally the debt retirement period. .Due to this or another form of incentive,
several factors may potentially result in temporary fiscal burdens for non-project area
property owners: increases in the value of land in the vicinity, the increase cost of ser-
vice delivery due to inflation, and perhaps the demand for services previously unneeded.
The non-project property owners will then be required to bear this burden and essentially
subsidize service delivery to the project area. For this reason, the Minnesota legislaiure
has recently passed a provision that no more than 5% of a jurisdiction's properly can be
included in iax increment projects.
The most obvious solution to this problem is ihe periodic reassessment of the property
value of the project area in the same manner as property in the vicinity. The same amount
of revenue previously earmarked, can continue lo be applied lo debt retirement and the
remainer would be generally properly tax revenue. In this manner, these general revenues
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The drawback of this program modification is that it removes a primary incentive for
participation In the program, e.g., the promise of a tax advantage. The absence of a
substantial tax advantage during ihe debt retirement period may function as a deterrent
to the success of the program. It should be recmphasized lhat project areas arc marginal
in terms of markefabilily. Without a strong incentive/ the private sector may be unwill-
ing to assume the risk. Areas which are capable of attracting the private market without
any incentives would logically not be appropriate sites for tax increment financing pro-,
grams. Therefore one can assume incentives will be required to ensure the success of the
program.
It is apparent lhat the tax increment program needs further analysis in terms of both
long and short term impact. Consideration must be given to the dynamic nature of financing
the necessary urban services and the probable static nature of project areas. Jurisdictions
must be cognizant of the equities or inequities of the tax burden imposed on their residenls
which may result from a rax increment program.
k* Investment Patterns
Anolher method of facilitating redevelopment and renewal in already developed
areas is to influence the investment pattern of banks and savings and loan instilutions.
Massachusetts has proposed a program which would require lenders to invest a certain
percentage of their assets in neighborhood impiovements. All Massachusetts chartered
lending institutions upon request would be required to put up .2% of its assests for pres-
ervation, refinancing and acquisition of properly in designated neighborhood stabli/alion
areas. The proposed program creates a Massachusetts Rehabilitation Agency which would
insure a specified portion of the rehabilitation loans made by banks at the market rale.
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In Chicago, four lending institutions and a local community group have agreed to
recycle investments into ihe neighborhoods where iho banks are located. Loons will be
made in proportion lo the deposits from the communtiy. The banks will receive publicity,
and businesses will be encouraged to use these banks. The goal is $11 million of new
credit in the community for the next two years.
The interest in this issue is evident by the fact that there is currently a bill before
the Senate to provide full disclosure of investment and savings patterns of the ba,nks and
inslitufions throughout the nation. The 6 May 1975 New York Times related that 150
persons from inner cities and older suburbs voiced strong support for the Senate Bill. This
Bill is seen as an essential first step in combating red-lining. Red-lining is the process
by which institutions will not invest in certain older areas. The logical basis for the Bill
is that red-lining is a self-fulfilling prophecy since money is not available for purchase
6r rehabilitation in the designated areas. Revitalizalion and maintenance of the living
environment in older areas depends on the availability of money for purchase and rehabil-
itation. Otherwise, potential homeowners will be forced to purchase housing in new
developments, and the decay of the older areas will be perpetuated.
c* Tax Incentives
Rehabilitation and purchase of housing in older areas can also be encouraged
through the provision of tax incentives. These have various forms, but normally entail a lax
credit for money invested in rehabilitation or a break on the reassessed value subsequent lo
rehabilitation. Similar tax advantages can be devised for the purchasers of houses in older
areas. The rationale for this type of approach is thai the immcdialc looses due lo lax
relief are worlh the increased fax base, the positive use of I he cily's resources, and the
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improvement of the city's living environment in the long term. Care must be taken to
prevent speculators from doing cosmetic rehabilitation, taking advantage of tax relief
measures/ ond then selling at unwarranted prices. The exact terms of a program which
provides bolh the relief measures and the necessary safeguards will be related lo the
nature of ihe taxing authority of the locality and the programs in practice. For the
reason it is currently not possible to detail an appropriate mechanism for the older areas
in the New Castle area.
C. Policies Concerning the Location and Density of Development
The supportive policies and programs which influence the location and density of
development normally pursue one or all of the following objectives:
o The in-filling of by-passed areas in order to optimize the.use of
existent urban services.
o Discouragement of leapfrogging development.
o Optimum utilization of existent key facilities such as mass transit stations.
o Preservation of historical and other unique sites.
The techniques which pursue these objectives can not be categorized as pertaining
solely to new development or already developed areas. Many techniques are adaptable
to a diversity of situations. Therefore/ only those techniques which particularly pertain
to older areas are distinguished in the following discussion. The others can generally be
utilized by all jurisdictions regardless of whether their major concern is, or is not,
suburban land conversion.
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1. General Techniques
a. Land Bonking
In response lo the need to in—fi11 by-passed areas, several jurisdictions have
implemented a land banking program. Land banking is the public acquisition of land for
subsequent private development. This type of program has been used for years by European
nations, most notably Sweden.
Land banking generally has two objectives: 1) providing a mechanism by which
public agencies can direct the location and nature of development and 2) exerting an
infl uence on land prices in order to keep them at a reasonable level.
Sylvan Kanim in his paper for the Urban Institute entitled, Land Banking: Public
Policy Alternatives and Dilemmas, notes the importance of defining land banking as the
acqusition of undeveloped land and not developed land. The purchase of developed land
for redevelopment is essentially the urban renewal process. A more important distinction
is that despite the conceptual similarities between land banking and urban renewal, there
are major objective differences in their objectives. Urban renewal is concerned with
providing relatively low land prices within a specific project area, and concurrently
increasing land value in ihe surrounding area. By contrast, land banking is concerned
wilh controlling ihc inflation of prices through offering relatively low land prices on a
particular parcel when it is ready for urbanizcition, aid concurrently attaining a reduction
of I ond values within the area. There is evidence that conflicts exist in the effort to con-
currently attain both of these land banking objectives.
The conflict can be attributed lo two situations:
o Orderly development will enhance the value of land and this
will be reflected in an increased market price.
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© When tlic locality initially withdraws land from the market,
the lenv of supply and demand will cause prices on remaining
land to be inflated. However, when land is released at relatively
low prices, the market price of proximate privately owned land
will tend to be reduced.
The magnitude of the problems described in the second item above, will be lessened
if land on the far fringes is purchased. In these areas, the transfer of property from a
private to a public entity will not have any significant impact until the area is ripe for
urbanization. At that time the publicly owned land can be released at the lower market
price and result in the attainment of orderly development and the maintenance of reason-
able land prices.
The same rationale does not qualify the impact.of the purchase of by-passed areas.
It is likely that both of the conflict situations described above will occur. One method
of dealing with these conflicts is to purchase by-passed land in the context of urban renewal.
This would entail public purchase at market price and resale at a lower price in order to
ensure its development in accordance with public directives. This could be termed land
banking only if the resale of the land pays for the original costs plus any administrative
costs incurred by the public body. Otherwise the program would necessitate a "write
down" which is commonly associated with urban renewal.
A system could be created which involves the public purchase of rural areas destined
for urbanization, iheir evenutal resale at ci reasonable price which reflects a profit; the
profits from this fringe land banking effort could then be used to compensate for the write
down necessary for subsidizing the infilling of by-passed areas. In this manner, the pro-
gram could pay for itself. In addition, the legal conflicts over whether a government
entity can make a profit would be appeased since the "profits" arc used to balance the
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Sylvan Kamm further notes that lank banking is dependent on the legal capacity of
fhe public body to acquire and dispose of land and in particular the use of the powers of
eminent domain for land banking purposes. He assumes however, that any large scale land
banking scheme will require use of the power to eminent domain.
The legal aspects of land banking are examined by Fred Bosselman in a report for the
Douglas Commission.' The legal questions to arise in his evaluation of land banking as a
measure to avert urban sprawl include:
o Is the use of eminent domain for the control of urban growth legitimate?
o Can public agencies acquire land for private use?
o Can fhe power of eminent domain be used for the purpose of raising
revenues?
The first legal question is explicitly answered in only one case, thai of Commonwealth
of Puerto Rico v. Rosso. This case upheld the validity oT a Puerto Rican statute which
authorized the Land Administration to condemn land to prevent the scattoration of develop-
ment which increase the cost of providing public services and ulilifizes. However, Kamm
notes that Puerto Rican law has different'legal basis and cannot be universalized for urban
areas on the mainland.
In general, however, legal precedent in the U.S. indicates that the use of eminent
domain for land banking purposes would require a publicly approved development plan.
The specificity of the plan and its timing are still open to question. However, land bank-
ing acquisition through condemnation beyond the urbanizing fringe may not be justifiable
due lo the need for a development plan. This returns to the system by which fringe areas
are purchased through normal private market mecnantsms as a land banking project find
by-passed areas are condemned for a specific development, which possibly involves a
write down as a urban renewal type project.
T
Altcmotivt* lo Urlxro Spwwl; Lopal Guidelines for_Govc£fimontol Acl ion, Nal ional
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The question of acquision for eventual private use through eminent domain or tfic
regular market is more definitively addressed by case law. Kanim relates that with the
exception of South Carolina, ai! of the states have court tested legislation which holds
thai the conveyance of condemned land lo a private parly does not violate the public
purpose. It would logically follow that this would be also true of land purchased through
the normal market.
The last legal question relates back to the previous discussion of the potential revenue
raising nature of rural land in the iong run and the potential costs of by-passed areas.
Bosselman relates that it is "traditional constitutional doctrine lhal the power of eminent
domain may not be used for the purpose of raising revenues." However, case law indicates
that the yielding of revenues as a result of a program using eminent domain is not in Uself
unconstitutional as long as the resultant revenues are ancillary to the attainment of at!
legitimate public purpose. Therefore, land banking should not be perceived as a means
of recapturing gains in land value for which result from service extension into the rural
area. Rather, its purpose must be as previously stated: the avoidance of scattered develop-
ment and a deterrent on the inflation of land prices.
b, Transfer of Development Rights
One method of guiding growth and protecting low density uses of land (e.g.,
open space and historical sites) is the concept of transfer of development rights.^ Thera is
limited experience in the actual implementation of this method, although it has been
widely discussed. F-xpcrience to date has generally been on a imall scale for site preser-
vation purposes. However, proposals exisl on its use on a county or town wide basis.
1
Ibid., p. 51
2
Primary Source for Informal ion on this subject is: Sloven WocvJburg, "Tiansfcr of
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This concept generally separates the right to develop from the other rights of owner-
ship. In traditional form these have appeared as the acquisition of easements, mineral
rights, or air space. In the same context development rights, can be purchased. However,
a market must first exist.
Creation of a market situation for the transfer of development rights is the most
difficult step in the implementation of the concepts. On a small scale, evidence exists
that it is cffectis'e. However, on a jurisdiction v/ide basis, there is no such evidence.
Small Scale Use of the Concept
Chicago, Illinois
Due to pressures for increased urbanization, the historical landmaiks in
Chicago were slowly being replaced by modern structures. In response to this problem,
a program was formulated that enabled their preservation without- substantial cost to the
city.
Under this program, the city created a "development rights district" which encom-
passed the downtown Loop area where most landmarks are located. Development rights
could be transferred from the historical sites to other sites within the district. In general,
the amount of transferable development rights would be the difference between the interior
square foolage allowed for a building on that site under present zoning, and the square
footage which the landmark actually contains. The actual transfer would then be
governed by a two-tier density standard: one maximum if additional rights were not pur-
chased, and another higher, if they were. The potential higher density creates the
necessary market fo make the program work.
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If a property owner wanls to redevelop a landmark area, the city would be empowered
to obtain a preservation restriction by purchasing or condemning the yet unused development
lights. This would be funded through a "development rights bank." The municipality
could sell rights it has acquired/ just as any landmark owner. The initial Funds for the
bank could be obtained through the rale of unused development rights of publicly owned
landmarks.
Although not explicitly stated in the source material, it is likely that the property
owner who sold the development rights would accordingly be taxed at a lower assessed
value, while the purchaser would be subject to a higher assessed value.
New York City
The J ransfcr of density rights has been traditionally permitted between con-
tiguous sites in common ownership. In 1968 the zoning ordinance was amended to allow
the transfer of rights from a landmark site to a site across (he street or intersection. The
resultant increased density or floor area ratio cannot be more than 20% than permitted
originally. The Planning Commission must approve the transfer of rights.
In 1969, the ordinance was farther amended to enable the transfer of rights across
several blocks, and relaxed the 20% increase requirement.
2) Jur isdiclion Wide Applications of the Concept
Fairfax County, Virginia
The most detailed proposed use ol Ihis concept in a metropolitan area juris-
diction is that of Fairfax County, Virginia, in 1972. To date, there lias been no action
to odopl or implement this program since its initial proposal. This may be a result of its
scope and complexity. As proposed, the program would replace zoning. The information
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presented below is essentially an excerpt from the source document by Stephen Woodbury
as identified at the onset of 1 his discussion.
The proposed Fairfax County Program would involve four basic slops:
"I. The Board of Supervisors (or other elected body) will adopt a
Comprehensive Master Plan which will, among other goals,
establish the total number of residents projected to live in an
area and the total number of commercial/industrial needs
projected for that area, basing these numbers on environmental
factors.
"II. The Board of Supervisors (or other elected body) would deter-
mine how many development rights are required for each kind
of residential and commercial/industrial development. Public
facilities use, farm use, conservation and recreation use, "and
pov/er lines will require no rights.
'"III. The Board of Supervisors (or other elected body) will assign
each property owner of record his/her Transfer Development-
Rights in direct proportion to the number of acres of land
owned, subtracting any development that may be in place...
"IV. In order 1o develop, the landowner will file with his s.ite plan
or subdivision plan, transferable rights equal to what is required
for that development (Moore, 1972:3-4)."
Development rights are not taxed in this program; land is taxed according to its
current use. This creates the question as to whether a speculator could take advantage
of the system by maintaining a farm use, not selling his development rights, and conse-
quently making windfall profits upon conversion to urban uses. Unless this weakness is
ameliorated by another regulatory program, the TDR program will represent) inequitable
tax burden on land owners zoned for more intensive land uses.
In response to the traditional non-static nature of zoning (and therefore associated
TDK's) the l a irfax plan provides a general description on how planned densities can be
changed:
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"The system would allow for growth beyond what is called for in
the adopted master plan, but would require a new master plan
with a new issuance of development rights. Undoubtedly, at
that point, pressures would surface in the community to permit
more development — I he community would then decide whether
more growth, and what kind of growth, would be in the public
interest. If the decision is for more growth, the first step in the
process would be revision of the Master Plan, taking into account
environmental impact factors, and the need for additional public
facilities (Moore, 1972:10-11),
"The proposal assumes that
"all land having received zoning will be entitled to transferable
development rights which would allow that zoning. No rights
already approved by the zoning system will be taken away (Moore,
1972:4)."
The proposed Fairfax County sytcm as well as the concept itself raises many questions
which must be resolved prior to implementation of a jurisdiction-wide TDR program. The
following questions were included in the Woodbury article:
o What is the value of the development rights granted to a landowner?
Is It commensurate with the reduction in value of his land under the
development restriction imposed?
o Does the (assumed) increased liquidity of development rights relative to
land increase their value?
o Will the proposed system of allocating development rights be perceived
as equitable?
o Is there danger of collusive price manipulation in development transactions?
o Will owners of property designated for intensive use disrupt the system by
refusing to sell or develop?
o Is there an incentive for hoarding of development rights? Dumping?
Speculation?
o Can property taxes and taxes on development rights be manipulated to
reinforce the system?
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o What Is the incidence of the cost of development rights? Will land
prices be depressed proportionate to the cost of the rights? Will this
cost instead be added to the price of housing to the consumer? Or
will market forces lead to some intermediate result?
o What conditions are required to insure a market for development rights
under a TDR plan?
© What will he Iiie value of such rights?
In conclusion, it is apparent that on a limited basis for the purpose of preservation
or conservation, the TDR program is effective. However, the concept is in necd'of further
stud/ prior to implementing it on a jurisdiction-wide basis. Disastrous consequences could
result from its implementation prior to obtaining a full understanding of.the expected
ramifi cations.
c. Zoning Mechanisms
Several variation on traditional zoning have also been utilized in pursuit of
growth and "regrowth" objectives. These include*, fiscal zoning, impact zoning, and
incentive zoning,
1) Fiscal Zoning
This measure consists of zoning land on the basis of anticipated fiscal benefits
It is particular!)'' employed as a remedial effort by localities with fiscal problems, Land
uses which are characteristically fiscally beneficial include commercial, industrial, and
fiicjh density residential. Fiscal deficits commonly occur from single family housing,
garden apartments, townhouses, and tax exempt properties.
The primary weakness in fiscal zoning is that il results in all the jurisdictions in a
region overzoniny for industrial and commercial uses and competing for the limited market.
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neighboring jurisdictions absorb the residential development For this reason, fliis technique
is generally not effective.
2) Impact Zoning
This measure consists of o system which replaces density restrictions with a
realistic before-the-fact assessment of how a proposed development will affect the com-
munity. The system correlates the effects of four key parameters:
o The growth rote of the community as it relates to the present
population, the available land and the growth rate of the
surrounding region.
© The community's infrastructure—sewers, water, roads, etc.
o The economic picture—what the new project will cost the
community in services vs. what it will return in the form of
tax revenues.
© Natural determinants, or the project's impact on the environ-
ment of ils site and surrounding areas.
These parameters arc assigned numerical values. This permits the evaluation of the
impact of a proposed land use by computer. For example, the computer would be able
lo relate whether the development fulfills the housing needs of Jhe current and future
population according to projects official projections, the infrastructure to accommodate it,
the environmental sensitivities of ihe proposed area, and the fiscal impact on the locality.
Negotiations can then be made based on this assessment in an effort to miligate or justify
any noted Impacts. However, ihis system wouia oniy oe effective if the jurisdictions has
the manpower funds and sophistication to administer it.
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3) Incentive Zoning
This measure permits a developer lo build ot a higher density than is
normally permitted in return for the inclusion of certain public benefit features in his
development. The increased density is normally limited to a percentage of the original
density. The type of public benefit desired are those which can not legally be required
as part of the zoning classification. The most common situation is to give higher densities
if low income units arc included in the development. This may be obsolete in the future,
however, as some courts have recently upheld the requirement for a percentage of low-
and moderate-income housing in certain zones. In general, this technique is generally
available for pursuit of a diversity of locational and spatial, attributes or amenities which
the jurisdiction is unable to require by law.
2. Techniques for Older Areas
Redevelopment.or regrowth is a primary concern of older areas. The foregoing
general community development techniques address the needs of cider urbanized areas
but are not specifically relevant to the economic and residential development problems
which are unique to these areas.
The most typical problems encountered include the decline of the CBD, exodus of
old industry, absence of now industry, abandoned housing, substandard housing, and
community disintegration.
Remedy of these and related problems, usually requires the provision of locational
incentives. These can take the form of lax advantages, land assemblage, discount on
ihe costs of utility provision or use, training, and publicly financed rehabilitation or
construction of structures for private use.
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The programs discussed below represent several approaches to the resolution of
redevelopment problems.
a, Industrial Development Corpora!ions
The use of industrial development corporations is generally an effort to
remedy major shortcomings of ihe area and take advantage of its resources. Although this
approach has been generally effective, the omission of certain program elements can
undermine the entire program. These commonly omitted elements include:
© Study and analysis of other areas' experiences should be conducted in order
lo providp a good foundation for planning and organizing a new program.
o Full -time professional staff should be employed from the onset in order
to facilitate an effective and efficient use of time and money,
o A program should be planned and then the necessary funds raised.
Tail oring a program to the amount of funds is oftentimes shortsighted
and ineffeclive.
Typical program.elements which have contributed significantly to the success and
have been integral to several programs include the following:
e Community facilities and services were generally satisfactory from the
onset, or improved as part of the program.
o The scale of the program is not confined to the arbitrary boundaries
between county and city. The scope should be related to ihe economic
interrelationship among the areas jurisdictions.
o A centralized representative group directed oil activities. This results
in quicker decision making on industrial development, and avoided many
coordination problems which characterized decentralized adminisfrat ive
structures.
o Training programs and day care services vastly increased ihe capabilities
of ihe current and potential employees.
The pub!ic and private entities which arc lypically involved in industrial development
efforts include:
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o local government officials;
o utility companies;
o chamber of commerce;
o prospective businesses;
o existing businesses
o interested citizens
o training and educational institutions
o relevant local governmental staff
Other relevant private and public entities should be included as appropriate; the
support from the community, policy makers and merchants in the areas to be redeveloped
is vital to the success of the program. This support will also give additional credence to
the ultimate marketability and financial viability of the project area in the perspective
of the private investment sector.
^) Evqnsville/ Indiana
The Evansviile Industrial Corporation was established in 1958 for the
purpose of purchasing raw land, developing industrial plants, and selling land on a non-
profit basis. Funds were raised by a general community subscription. Certificates of
membership were issued on the basis of a minimum subscription of $100. Members were
entitled to one vote for each $100 contributed. Proceeds from land sales were returned
fo a revolving fund. No salaries or promotional expenses were paid. Foundation officers
were unsalaried, and promotions were handled by the Chamber of Commerce. By 1962
three industrial sites (132 acres) were purchased and the necessary utility extensions and
other improvements were in place. At that lime 44 1/2 acres had been sold or placed on
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option. Indicators suggested the remaining land would attract suitable purchasers. The
foundation was pleased with these results, and felt they would attain their objectives.
2) Beaumont, Texas
Beaumont was faced with the typical downtown development problems.
The core area hac! lost its image and was experiencing a spiraling decline as business and
residents evacuated. Continuous disinvestment was largely responsible for the decline;
this was magnified and perpetuated by the lack of urban amenities, traffic congesnon,
parking problems and many other characteristics which contribute to the frustration of
living ond shopping downtown.
The most instrumental entity in the initiation of a program for the revitalizai ion of
the CBD was the Chamber of Commerce. In early 1970, they embarked on an inventory
of the development potential and existent assesfs in the downtown area.. Subsequently,
a group of influential citizens pursued a course of action which would enable revilalizafion
of the downtown. During this period the group worked closely with the mayor and city
manager. In this manner ties were maintained with the political and policymaking
authorities of the city.
Due to the absence of state enabling legislation and the unavailability of effective
Federal programs, the revitalizafion effort had to be a private undertaking. However,
conceptualization of a program is easy in comparison to organizing and initiating a program.
However, the implementation phase of the effort was facilitated by the proposed relocation
of St >ulhwestern Bell Telephone Company in Beaumont. Southwestern Bell indicated that
I hey would locate in I ho CBD if it did not cost more than their originally anticipated cost
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acquired, cleared and underwrote a silo which Southwestern Bell approved. Funds for the
write -down were acquired from downtown interests who desired the anticipated benefits
associated with fhe project.
Asa result of this successful effort, the "Central City Development Corporation"
(CCDC) was chartered. The purpose of which was to:
"Purchase, receive, lease, or otherwise acquire, own, hold,
improve, use, or otherwise deal in and with, real or personal
property, or any interest therein, within the City of Beaumont,
Jefferson County, Texas, so as to .stimulate and cultivate a
general redevelopment of important public and private facili-
ties within the community, and to execute such deeds, notes,
mortgages, pledges, assignments, leases, and contracts, as
may be necessary or advisable in ordei; to accomplish this
purpose..."
The organizational structure was as follows:
o A 31 member Board of Trustees which represented a broad range of interests.
o A 7 man Executive Committee composed of the officers of the corporation
and selected representatives of interests (including the 5 men who were
originally initiated the effort).
o Six committees with responsibilities for finance, renovation, transportation,
property, special projects,' and market development.
Funds for the corporation were obtained from membership payments and a capital
fund derived from pledges by major downtown merchants. This enabled them to obtain
office space and a professional staff.
Their first task was to acquire additional information on the CBD. Subsequent to this
three month effort, and pursuant to consultation with the Urban Land Institute staff, they
undertook a master planning effort for redevelopment of the CBD.
A team of consultants with economic, physical design, a nil transportation expertise
was employed. In addition, a citizens committee was created to integrate community
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consciousness in the consultants efforts. The entire planning effort was directed by a
steering committee composed of the CCDC Executive Committee and representatives from
the City Council and tlx; Port Commission. This committee met monthly to review the work.
By involving the citizens and decision makers as well as the experts, the CCDC hoped
to link the planning effort with implementation. Expectations were consciously balanced
lo ensure that the performance requirements and costs were within the realm of their
capabilities.
The effort to plan for purposes of implementation was effective. Financial support
for implementation of the CBD plan was overwhelming. Total public investment (over
10-15 year period) is estimated at $74 million complemented by $36 million from private
sector development. The public sector activity is seen as a "seeding" effort to stimulate
private sector investment. For this reason the involvement of both sectors must be
coordinated.
Actual expenditures and progress from its initiation was indicative that estimated
funding levels and full implementation v/ould be achieved. By fall 1974, $500,000 in
capital funds had been committed to program formulation and administrative costs. Down-
town interests had invested $900,000 and the public sector had committed $100,000.
Through the various efforts of the corporation during the first three years, over $18 million
in new construction occurred in the CBD. This is more than had occurred in the previous
15-20 years. In addition, a $12.7 million bond program was passed to design the Beaumont
Port facilities.
These activities have changed the attitudes of people in Beaumont; the CBD is seen
for its potential instead of its decadence. The momentum which currently prevails will
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likely result in successful aflqinnicnl of the redevelopment objectives by flic end of (lie
project period.
b) Strip Commercial Development
All urban and urbanizing communities must contend with past poor zoning
and planning effort which have resulted in unsightly strip commercial development. Some
communities have learned from this past experience, and attempted to alleviate the pes-
sures for the future occurence of the situation.
1) Grand Rapids, Michigan
The Grand Rapids Metropolitan areas has approached this problem with
an interjurisdictional agreement on the use of land along a proposed major highway. The
effort was precipitated by the Michigan State Highway plans for the expansion of a street
into a major 5-lane highway. The road would run through five towns.
In 1972, a citizens group composed of interested persons from all five jurisdictions
was formed. Its purpose was to promote the reconstruction of the highway as soon as
possible and to encourage proper, planned development of the adjacent areas.
The specific design objectives were denned as follows:
o Preservation of ecological values and maintenance of natural opern area.
o Controlled development in critical areas such as flood plains in order to
minimize property damage, control water runoff and soil erosion, and
provide recreation areas.
o Protection of areas of significant views through land development and
building height controls.
p Provide for gradation oT land uses in order to minimize conflicts.
o Protect and preserve productive agricultural areas.
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e Provide a scries of green space linkages for pedestrian and bicycle
occcss between areas of public and semi-public uses.
o Through the use of service roads and medians, increase ihe safety,
comfort, convenience and aesthetics of the Cast Rett Line.
Subsequent" to obtaining a consensus on objectives, the association assembled data on
ihe land use and travel patterns of the area. After study and deliberation on alternate
approaches, a final plan was accepted by all participants—including representatives of
the political and policymaking bodies.
The approved pfan generally entailed the permitting of intensive commercial land
uses at major intersections with strict control over ingrees and egress. The rest of the area
along the road would be retained in low intensity uses such as residential, churches, and
institutional uses. In addition, they want to revise the highway proposal to include a
wide median strip, with only 4 lanes instead of 5.
The political and community support of this association gave the plan sufficient force
to gain endorsement of the governing bodies of all five jurisdictions. The greatest opposition
came from the bureaucratcs arid the state highway department. However, after publicity
and negotiation, the highway department agreed to the design changes.
In order to formalize the endorsement of the jurisdiction and to ensure implementation
of the plan, a memorandum of understanding v/as signed by each jurisdiction. The most
important paragraph of the memorandum follows:
"The parties to this memorandum of .understanding agree that
llicy will not authorize rezoning or new planned unit develop-
ment or other major projects in the planning area unless and
until they have met jointly and discuised the impact of the
proposal—favorable or unfavorable—on the future development
of the Cast Belt Line."
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A joint advisory committee was formed for the purpose of coordinating ihe implemen-
tation of the land use controls along the road. Their recommendation on land use are not
binding, but carry significant weight wilh the Planning Commissions.
Although theroad's expansion will nol be completed until 1977, ihe controls over
land use in the areas have been administered in accora'ance with [he agreement lo date.
This indicates that the approach will be successful in the long run.
c. Homest coding
Urban homestcading attempts to stablize neighborhoods by selling abandoned
housing for $1 . The recipient must rehabilitate and live in it for a specific period of time.
Baltimore, Wilmington, Philadelphia and'Washing! on, D.C. are among the jurisdictions
which have used this approach* The major weakness in ihe general approach, as used
by all jurisdictions to dale, is the inability to provide low interest loans to ihe purchasers.
For this reason, poor families who lake advantage of the program find that they arc unable
to improve their homes. In effect, only relatively well-off persons can afford to home-
stead. This then results in further displacement of poor families and the inability to provide
a self-help program for the poorer families.
The most important conclusion Jo emerge from experience to date with homestcading
is the need to have many supportive programs. In addition to fund availability, the pur-
chasers should receive technical assistance on the methods and costs or rehabilitation.
The target population of tills program is the less-advantaged, and these people are generally
most in need of help at the first stages.
The program should also bo administered according lo o well-defined strategy. If
possible several houses should be sold in general proximity. In this manner the new owners
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can share and learn From each other's experiences, obtain some economios of scale in fhe
purchase of materials, and reinforce each others morale during ihe process. If the sites
arc scattered and unrelated, a new owner's motivation may easily bo undermined by the
surrounding neighborhood's decay.
Homest coding is a good concept, but any program must be well planned. As an
Independent program, it is unlikely it will be overwhelmingly effective in attaining
stated object ives; as one part of a program package, it will be more likely be an'effcctivc
measure for the revitalization of older urban neighborhoods.
D. Polic ies Concerning the Administration and Institutionalization of a Growth
Management Program
Analysis of several growth management programs reveals many administrative weak-
nesses which can potentially undermine the efficacy of a growth management program.
These are presented in general terms below. The listing which follows is based on the
premise that the growth management program requires the review and approval of some
form of application for development, rczonmg, subdivision or other land use activity.
1. Parameters for the Decision Makers Evaluation and Approval of Applications
for Development
Growth management programs often require a quasi-judicial process which is
greatly facilitated by the adoption of explicit paiometers which are used to guide decision
making. In absence of explicit parameters, the final decision on an application for
development may be percievod as arbitrary. This in turn is generally conducive to abuse
In the form of favoritism, prejudice and the use of bribes. This is not to suggest that such
abuse has been evidenced in the localities studied, but rather the potential exists and
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2. Compliance Procedures for Developers
Ambiguous compliance procedures can impose a financial burden on the developer.
The primary burden is the cost attributable to I he period between filing a petition for a
development, or rezoning, and its approval. In addition, the absence of a vested
interest in development can magnify the possible financial burden on the developer. In
this case, the developer is required to assume certain front-end planning and administrative
expenses without any assurances that approval will be granted. Therefore, in addition to
explicit complicance procedures, the developer should be assured that upon compliance
with specific, well-defined requirements he will be able to develop. Likewise, he should
be aware of any environmental constraints on the scale, density or type of development on
his property.
3. Mechanisms for Communication Among Policymakers, Developers, and the
Genera) Citizen
Citizen endorsement of a growth management program is essential to its successful
implementation. Local officials are subject to periodic elections and their ability to
obtain this endorsement will influence the prospects for reelection. In addition, a program
will be subjected to fewer court actions and citizen opposition if the multiple sectors of
the community are involved in the formulation of the program.
4. Staff Involved with the Growth Management Program
A locality must have staff with the capability for effectively administering the
growth management program and supportive programs. The nature of these programs will
dictate the level of expertise and amount of staff nc?cessory to effectively attain stated
objectives. Assuming the necessary staff is present, the locality must ensuro that there is
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not a liicjh turnover rate. The growth management cfforl in several localities lias been
undermined by this problem. In effect, when ci qualified employee changes jobs subsequent
to the completion of a project, bis project or report may not be fully understood or well-
received. In addition, time, money, and efficacy are lost every time a new employee
must be briefed on his predecessors accomplishments.
The solution to this problem would be unique to the particular circumstances of a
local government. However, it is generally necessary to provide an adequate sarary, good
working conditions and satisfactory interaction among employees and supervisors in order
to discourage unnecessary staff turnover. The morale and attitudes of the staff is not a
major problem in most cases. Yet, in the event of a staff problem and consequently a
rapid turnover, the entire program can be adversely impacted. Program administrators
should be conscious of early signs of these problems and correct them before any significant
impacts occur.
• RcsponsibiI?fy for Processing Permits and Applications Related to the Land Use
Control Program
This weakness can result in the non-adherence to required timetable for process-
ing applications for development. This, in turn/ frustrates the applicants and results in
litigation or administrative appeals.
Many local officials are only "part-lime," They often have other personal and
professional responsibilities. In many instances this is magnified by a reliance on the
local elected body for ultimate review and approval of all permits, rezonings, and other
site specific land use decisions in addition to general policymaking. The resultant situation
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this problem through ihe creation of a quasi-judicial body, for processing and approving
lond use applications, with appeal to tlie legislative body in tlie event of conflict.
If an administrative entity is conlinuously overburdened if will result in delays and
frustrations for both the applicant and Ihe policymaker. These frustrations will aggravate
any conflicts which are inherent to the governmental review and approval processes.
Therefore, the lime required to administer a proposed program, and the current respon-
sibilities of the proposed administrative entity must be considered piror to implementation.
In this manner, the administrative processes for the program will not impede attainment
of its objectives.
6. Administrative Remedies
This weakness results in a reliance on litigation as the only means of appeal.
Litigation is an expensive and ineffective means of resolving conflict . Administrative
appeal procedures would enable resolution cf the majority of problems, with an ultimate
recourse of appeal to the courts. One typical illustration of this weakness is the absence
of an administrative remedy for non-adherence to the timetable for review and approval/
disapproval of the application. This forces the parties to initiate litigation in order to
resolve the queslion. For this reason, it would benefit both the jurisdiction, the developer,
and the lay citizen to include the appropriate administrative remedies for any conflict
which may arise.
7. Location of Offices and Aaoncies Which Musi be Visited in Order lo Comply
wi_th the Prerequisite.; for Development
Developers are more likely to be cooperative wilh the compliance requirements
if all the offices which he muil visit are in the, mimic location. I:urllu:ry consolidation of
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all the permits into a single form, or as few as is practicable, would facilitate compliance
and therefore enhance the rapport among developers and policymakers. Although this is
seemingly a minor point, it is essential that policymakers comprehend the lolal impact of
the compliance procedures and attempt to. minimize the associated frustrations. This
cognizance should be maintained throughout the program formulation and implementation
processes.
E, Resource Management Policies
Growth management in a sense is resource management with a specific emphasis on
land. The use of land can impact other resources and vice versa. For this reason, techniques
for resource management are an integral part of a growth (land) management program.
Resource management is also being addressed in the Environmental Assessment working
paper currently in preparation. Therefore to avoid redundancy, the actual processes for
iaenmymg impact on resources will not be discussed. Instead, the following discussion
relates efforts which focus on the resolution or prevention of identified impacts on resources.
In essence, the environmental impact assessment process precedes the utilization of one of
the following approaches, and it-represents an analytical tool for integrating "impact"
considerations into the growth management program.
1 . Air Quality
Air quality has been the subject of enforceable Federal law since the enactment
of the Clean Air Act Amendments of 1970. The terms of this statute require coordination
of land use (growth) decisions and air quality control efforts.
The New Castle Area has not been designated as an Air Quality Maintenance Area,
and therefore is not subject lo areawide pollutant abatement requirements. However, the
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area is sfill subject fo the Slate Implementation Plan (SIP) which must attain and maintain
ihc clean air standards promulgated by the environmental Protection Agency. The SIP
addresses both direct and indirect sources.
SIP's initial I)' focus on direct source controls; if necessary in order to attain and
maintain air qualify standards, indirect controls will be implemented. Without know-
ledge of the Delaware SiP, it is not possible to know if indirect sources controls are
necessary in the New Castle County area. In the event that indirect source controls will
be required now or in the future, the following brief discussion of Federal requirements is
included in this report.
a. Indirect' Source Controls
According to the current timetable, indirect sources are to be subject to
regulation by July 1, 1975. The official definition of indirect source is:
"CO T!ie *erm 'indirect source1 means a facility, building,
structure, or installation which attracts or may attract
mobile source activity that results in emissions of a
pollutant for which there is a national standard." (S2.22,
40CFR52.)
CPA regulations for indirect source control specifically address land use planning.
The significant interrelationship between land use patterns and indirect sources of air
pollutants is well recognized:
"It is hoped that indirect source review will eventually be
incorporated into comprehensive State and local land use
planning processes so that social, economic, and air quality
factors can be considered in an integrated manner."
(p. T?JA fed. Register, Vol. 39, No. 33)
In support of this Federal perspective on indirect sources, an analysis of the impact
of projected growth and land utilisation on air quality, and the adoption of measures to
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ameliorate adverse impacts of growth is required as part of the SIP. For this reason,
considerations of air quality should be integral to land and growth management programs
from the onset.
2. Water Resources
The requirements of the current 203 planning and management program is an
illustration of the interrelationship between land use and waste water management. Land
use considerations arc particularly relevant to the need to identify secondary impacts which
result from sewer service provision as well as the need to control nonpoint sources of
pollution. It is assumed that the relationship between growth and service extension is
fully understood, and therefore this discussion will dwell on the land use implications of
non-point source control.
Although the Federal Water Pollution Control Act of 1972 (FWPCA) relates to the
management and control of both point and nonpoint sources of pollutants/ to date, primary
emphasis has been on point source regulation. Nonpoint source (NPS) controls have
received little study or implementation.
The primary barrier to enumeration of regulatory responsibilities for nonpoint sources
is the lack of management techniques for pollutant abatement. It is difficult to control a,
pollution source which can not be specifically identified. To control these sources,
regulations must be broad in application. This breadth can be regarded as inequitable
or arbitrary if all the designated activities are not responsible for the pollutants. Non-
point sources include such activities as poor construction practices, urban storm water
runn-off, sedimentation, and erosion. It is therefore necessary to specifically define
those activities which must be regulated, and the appropriate terms of the regulations.
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In tight of Federal inaction, the Slate or localities could assume lliis responsibility in order
Jo form a firm foundation for control ot nonpoinl sources.
Pursuant to establishing a conceptual framework and technological capabilities for
NPS control, responsibilities within the inslifutional structure must be delegated. The
EPA Water Quality Strategy Paper of March 15, 1974, stales:
"NPS control is a cooperative, intergovernmental respon-
sibility, with authorities divided among EPA, other Federal
agencies, and Slate and local units. Principal authority for
o full control program Is vested, under the Act, Jn the States
end areawide management agencies. Additionally, numerous
FederaT cigencies~have power to include NPS measures as an
aspect of various programs. Finally, EPA is charged with
conducting research end demonstrations, developing guidance
and supply support, to further NPS awareness and abatement
at all I evcls of government and in the private sector."
(Emphasis added) (p. 62)
EPA recognises Hs responsibility 1o guide the States ana' areawide agencies in NPS
control. Information relating to control or seven nonpoinl" sources was published in
October 1973. However, these do not address the institutional framework, or specific
use of land use and management controls,for regulation of nonpoinl" sources. Informal ion
on these aspects of NPS control will be published in ihe future. Until that time, the
localities and areawide agencies must take ihe initiative in the formulation of a suitable
NPS control strategy.
The Implications of NPS controls are controversial due io iheir applicability to the
private and public use of land. Developers are likely to be required to assume specific
precaulions in ihe preparation of I heir land for development. In addition cities may hove
to increase street cleaning efforts in order lo abate polluted storm water run-off, or public
works funds may be required for a hardware approach to urban or agricultural run-off
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prevention or collodion. For these reasons, nonpoint source controls are not particularly
welcomed by developers, policymakers, or administrators.
3. Energy
The "energy crises" lias precipitated the integration of energy utilization factors
into planning and land use control programs. The prevalent suburban development which
rings major cities results in a dependency on the automobile and an inefficient use of fuel.
This is magnified by the general usage of automobiles which are loo heavy for single
passenger commuting purposes and consequently waste energy. In addition, an energy
wasting characteristic of the typical American construction practice is the absence of
adequate insulation, and poor siting and design considerations. Given the inability to
change current consumption habits overnight, or to effectively remedy structural sources
oC energy waste, local officials should dwell on the minimization of auto dependency and
identified structural sources of waste.
One proposed approach for accomplishing this is the use of a method for measurement
of energy utilization. Energy measurement would be one of the many parameters in a
system for assessing the impact of a proposed project. Performance standards for acceptable
and unacceptable levels of energy utilization would be formulated.
One conceptual application of these standards could be in the following manner:
o Evaluation of the siting of the units in the proposed development in terms
of the exposure, the terrain, and oilier silo specific factors which influence
the heating, cooling and lighting of the units.
© Evaluation of the building design of a proposed project in levins of
insulation, and structural characteristics.
o Evaluation of the amount and availability of energy sources required,
e.g., electricity and gas.
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© Evaluation of the spin-off utilization of energy, e.g., Ironsportalion
needs and pressures for related retail, industrial, or residential
developments.
Although information on experiences with fhe actual Implementation of a system of
this nature is not readily available, it is evident that these considerations will be increas-
ingly integrated into development and subdivision review process. This should result in a
more efficient use of 11011-renewable energy resources.
4. Protection of Valuable Resources and Hazard Areas
Those resources which are typically subject to conservation measures include but
are not limited to, minerals, flood plains, agricultural lands, aquifers, historical sites,
.steep slopes, and forest lands. Areas which ore characterized by these resources and
condition! are often identified as "environmentally sensitive. " Accordingly, this designa-
tion can require developers to comply with additional regulatory procedures. If regulation
constitutes a taking, the property owner may have to be compensated. Compensation can
entail fee-simple or less-than-fee-simple acquisition. Moderate or self-imposed resfric-
lions can be compensated for by a preferential assessment program as discussed previously.
The identification of sensitive or critical areas requnes me formulation and use of
explicit, non-arbitrary criteria. In its absence, designation and consequently regulation
can be contested in court based on a violation of the equal protection clause of the
Cortililulion, More specifically, il is o well established legal doctrine thai the classifi-
cation of entities for regulatory purposes must be based on a legitimate' dcslinclion. There-
fore, great care should be token no! to violate ibis constitutional light in pursuit of the
preservation of critical areas.
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The use of environmentally sensitive areas can be enabled through tlie imposition of
strict building and site design requirements. The determinants of whether design require-
ments instead of prohibition of development arc provided is a matter of public policy.
Some localities may choose to prohibit development in a sensitive area in order to provide
pari; areas; another locality may choose to provide design requirements in order to permit
the location of industry in a sensitive area and thereby improve the fax base. In a similar
manner, each locality must decide what degree of conservation and development is con-
sistent and supportive of public policy objectives.
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IV SUMMARY AND CONCLUSION
The foregoing discussion of alternative programs illustrates the diverse influences on
ilie use of land and consequently growth. Traditional concern with only spatial patterns
has not proven to be sufficient to manage these influences. A policymaker must be con-
scious, and manage as appropriate, all the fiscal, environmental, social, end political
influences on the growth of a community, whether these influences stem from public policy,
the private sector, or natural phenomena. Therefore prior to selection of the appropriate
package of policies and programs, the policymakers must first define their objectives,
assemble data on the characteristics of the locality, and then identify the public end
private activities as well as natural phenomena which influence land use or are influenced
by land use.
Subsequent to laying this foundation, policymakers must be introspective. They
must assess their own capabilities as administrators, and the need for additional staff or
consultant help in the formulation and implementation of the program. This step is very
important since over-estimating one's ability or under-estimating the necessary budget
and staff will undermine the entire effort. Two specific considerations should be
recognized:
o The experience of the locality's staff members in the use of tradition"!
planning and zoning techniques as Well as experience in the formulation
and iniplcmentation of growth management policies and prograrr.s: rural
counties on the urban fringe (e.g., Loudoun County) may be able to
identify the problems which have resulted from unmanaged growth, but
I ho traditional uninvolvement of the local government and lac}; of staff
members knowledgeable in this field, may prevent an active rale in
the resolution of these problems. Increasing the availability of funding
for the salaries of qualified planning staff who would be responsible for
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the formulation end implementation of a growth management program
would facilitate amelioration of this situation. The exact source of
these funds will be related to tlic locality involved.
c Citizen endorsement' of, or opposition to a growth management
program: unless the problems associated with urbanization arc of
sufficient magnitude to impact a large segment of a locality's
residents, a strong governmental role in land use management is not
likely to receive great endorsement. This ultimately creates a situa-
tion in which remedial measures instead of preventive measures are
required. Although many localities arc at tempting to influence the
pattern and rate of urbanization, they are limited by the sentiment
of residents who do not fully understand the problems associated with
urtmanaged urbanization. One solution to this problem is to create
a mechanism for interaction among the local officials, staff and
residents in order to increase the citizen's awareness of the problems
associated with urbanization.
Given adequate community and staff support the locality should evaluate the
techniques available for attainment of their objectives. The techniques which can be
adapted lo a locality's needs can be summarized as follows:
o The suitability and capability of'a site in terms of its on-site
characteristics to accommodate a particular land use.
o The non-site specific policies, programs, and phenomena which
Impact or are impacted by a particular type of land use.
o The design characteristics of the proposed land use.
Suitability and capability can be determined as part of the environmental assessment
procedures. Suitability and analysis includes the availability of sewer and water capacity.
Consitency with plans, access, and cost of land. Capability includes slope, critical area
characteristics, engineering construction problems, and environmental hazards.
The nonsite specific techniques include fiscal, economic development, human resource
and political influences, Economic development is nonsite specific due lo the externalities
which affect economic development, e.g., labor supply, saturation of the market, and
linkages among industries. However, it should be noted that many major site specific
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The design characteristics of a specific project can influence or mitigate its impact
oil land. In many cases, the unsuitability or incapability of land to accommodate a partic-
ular land use can be overcome by site design requirements. Those requirements can bo
formalized by law for particular types of development in specified areas, e.g., flood
plains or it can be used during the review process as a discretionary power.
Any package of growth management programs will include these three types of
techniques. The most likely to be omitted from the management framework is the latter
of the three. Site design requirements are micro-level and are often overshadowed by the.
other two. Nevertheless, design requirements can facilitate "trade offs" in the decision
making process by minimizing the impact of a potentially undesirable development. This
potential for trading off should be built into the management process rather than merely
being implied. In this manner, decisionmakers will know the exact realm within which
they can negotiate a development. Such negotiations will probably be necessary whether
the development constraint stems from the unavailability of services, the environmental
sensitivity of the area, or the potential for hazards in the area.
Selection among the various alternative techniques which will compose of the com-
prehensive package of growth management programs must consider three factors;
o The legitimacy of the approach, in terms of Federal, State
and local law.
o The impact on the community.
o The administrative efficiency.
Legal considerations normally relate specifically to impact considerations as well as
enabling authority. For this reason, the legal aspect and community impact will be dis-
cussed jointly, and subsequently adniinistiat ivc considerations will be presented.
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A. Legal Aspects and Community Impact
No universal definition of which land use programs are legitimate is available.
Courts in different areas throughout the nation make conflicting decisions on nearly
identical evidence. However, a few legal principles in land use regulations currently
prevail. The applicability of these principles are national in scope since they deal with
constitutional issues. It is important to realize that when litigation challenges local law
such os enabling authority, the |udge must rely on local and state legal precedent .
Similarly, if Federal laws or the constitution is the basis for litigation, any similar case
in the nation is applicable. For this reason, a precise knowledge of local enabling
legislation and legal constraints must precede any program implementation. Local law
is more often a constraint and reason for court defeat than Federal lav/, although the most
well-publicized cases are decided on constitutional issues.
The following discussion of the police power and constitutional principles for land
use regulation can only serve as guidelines for program formulation. In depth analysis of
all the legal implications of a program is necessary prior to its final formulation and
implementation.
Robert Freilich submitted a report In December 1973 to the Fairfax County Board of
Supervisors which included a detailed discussion of the legal basis for land use regulation.
This report, entitled The Legal Basis for A Growth Control System in Fairfax County,,
Virginia, is the primary source for the information which follows.
In his discussion of the potential judicial reaction to programs for the management of
growth Freilich stated 1 hot the trend is to consider the protection of the environment as
a legitimate objective for the use of the policy power. Similarly, the police power can
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of public services and facilities. The primary and essential clcmcnl of a legitimate growth
management technique is 1 hc.it it demonstrates a commitment to growth, and secondarily,
it should have as a basic objective that growth takes place at suitable locations where
adequate public services arc available. If a locality is seemingly attempting to avoid
growth or defer a substantial amount of growth, the court will question the true implicit
objectives of the ordinance. In addition, the degree of commitment to growth and the
equlfability of the ordinance will be evident in the concrete results of t.he program. If
mere lip service is given to these objectives/ only nominal progress will be made toward
attaining an effectis'e land use management system and equitable housing opportunities
for all members of the community.
Assuming a legitimate and/ e.g., valid objectives, the reasonableness of the means
must be evaluated. Freilich relates several factors which should be considered in the
evaluation of the reasonableness of the means. These include:
o The legitimacy of the legislative classification,
o The alternatives available,
o The impact- of the affected parties.
The legitimacy of the legislative classification is founded on the constitutional light
to equal protection. A law cannot single out an individual or group for restriction or
special benefit unless warranted by a legitimate distinction. For exampl e, in evaluat ion
of the Ramapo approach, singling out residential-development for regulation was justified
on the basis that residential development did not always "pay its way."
In accordance with the secondfactor listed above, a locality mu:.t be able to ciemon-
Slrole that there are no alternative, less-controversial, or less-disruptive means available
for accomplishing stated objectives. As depicted in the Kumapo experience, the best
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mccins of demonstrating there arc no viable alternatives to a proposed program is to use
traditional means first, and then to implement relatively new techniques.
The last factor in the analysis of the reasonableness of means relates to the question
of impact. Freilich sets forth four criteria which reflect inequitable or unreasonable
impact on the persons affected. In summary form these are:
o The diminution of a plot's market value: generally considered by
the courts as relevant but not conclusive.
o The remaining use of land: if the only uses remaining arc for
public benefit, the restriction could be considered a taking.
© The nature of the regulated uses or interest: if there is no property
right, there can be no impact, e.g., no rights or interest attached
to a nuisance.
o The length of the restrictions: a permanent restriction may
necessitate compensation.
In addition to those criteria, due consideration must be given to third party impact.
These are the anonymous persons who may be excluded because of a regulation. In the
Kit Mar and Girsch cases it was found that the zoning ordinances of the towns in question
were exclusionary of a certain status of persons, and these persons had a right to an
opportunity lo live there. The zoning ordinances were therefore found to be unconstitutional.
The outcome of any court challenge of a program will depend on the nature of the
litigation initiated. The exact form and terms of the litigation which will inevitably
occur is impossible to predict. It is apparent however that legal assistance from a
qualified lawyer con deter the possibility of an adverse court ruling based on constitutional
grounds or the lack of statutory authority.
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B„ Administrative Efficiency
Admihistralive procedures should be adopted which fciciltlolo developer compliance
Willi/ and cilizcn ondcistanding of ihe provisions of I he growlh management program. litis
need is supported by legal precedent which indicates that unreasonable compliance pro-
cedures may nol be regarded favorably by the courts in accordance with the reasonableness
of the means doctrine of the V amendment of the Constitution.
Citizen endorsement of a growth management program is essential to its successful
implemenfal ion. The policymakers are subject to periodic elections and their ability to
obtain this endorsement will influence the prospects for reelection. In addition, a program
will be subjected to fewer court actions and .citizen opposition if the multiple sectors of
the community are involved in the formulation of the program. Policymakers who retreat
into seclusion for several days and then emerge with a proposed and subsequently adopted
work program composed of a complex package of policies and programs will encounter
conflict and controversy.
Another aspect of "administrative efficiency" is the ease of adminisfralion of a program.
A program should include explicit provisions for administrative remedies for discontent
developers in order to avoid litigation as the only means of appeal. Also, the regulaiions
and compliance procedures should be explicitly defined. Otherwise, both the cidminis-
liator and developer will be uncertain as to whol is necessary in order to comply with the
ordinance. In general, all compliance rcquiiemenfs, remedies, relief provisions, and
other alternative compliance procedures should be explicitly stated in either the ordinances
which implement the program or officially adopled regulations. In their absence, .the
effective administration of the program will be impeded, causing a loss of lime and money
for both the developer and the locality.
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The programs discussed in this report can only provide guidance in the field of growth
management and not onswers. No program can be transplanted from one jurisdiction to
another despite the similarity of their problems, potentials and characteristics. Different
enabling legislation, political institutions, and traditions dictate that each jursidicfion
musf formulate a unique program. Nevertheless, it is possible to learn from the experiences
of other jurisdictions and to adopt their particular mechanisms to another jurisdiction's
needs.
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SELECTED BIBLIOGRAPHY
Baker, R. Lisle. "Slate Controls, Taxes and Innovations. " Presentation at the National
Conference on Environmental Law, Warren ton, Virginia, May 3, 1975.
Committee for Economic Development. Community Economic Development Efforts: Five
Case Studies. New York: Prager Special Studies, 1964.
4
Freilich, Rob ert and John Rcigsdale. A l.egal Study of the Control of Urban Sprawl in the
Minneapolis-St Paul Metropolitan Region. Twin Cities Metropolitan Council,
January 10, 1974.
Freilich, Robert. The Legal Basis for a Growth Control System in Fairfax County, Virginia.
Fairfax County, Virginia. December 21, 1973.
G! eeson, Michael; Jan Ball; Robert Einsweiier; Robert Freilich; and Patrick Meagher.
Urban Growth Control Systems: An Evaluation of Policy Related Research.
University of Minnesota, September 1974.
Hagman, Donald. "A New Deal: Trading Windfalls for Wipeouts," Planning, American
Society of Planning Officials, September 1974, p. 9.
Holbein, Mary Elizabeth. "Land Banking: Saving for a Rainy Day," Planning, American
Society of Planning Officials, Janudry 1975, p. 19.
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