Land Use:The Rage for Reform

UNDEVELOP! --New Mexico billboard campaign MAINE IS NOT FOR SALE --Bumper sticker "Please come and visit us in Oregon again and again. But for heaven's sake don't come and live here." --Oregon Governor Tom McCall (1971)

"Don't even visit." -- McCall (1972)

Until recently such sentiments would have been contrary to the traditional American spirit of boosterism, the antithesis of the goal emblazoned on the WATCH US GROW signs on the outskirts of countless towns and villages. But now they express the mainstream of American opinion, and in communities across the U.S. reflect growing concern about the use, and the misuse, of the land.

Last year an estimated 3,000,000 acres of open land were gobbled up by urbanization, vacation developments, strip mining and highways. The total is equivalent to the land area of Connecticut. Next year another 3,000,000 acres will be built up, paved over or stripped. Most of the change is taking place on the relatively flat farm lands around the most populous cities, near shore lines, or in the most popular resort areas. In these locations particularly, the amount of land is limited --the all too many abuses of land are all too visible.

Citizens have finally rebelled against the growing despoliation of the countryside and the social and economic ills that it creates. They have launched what amounts to an inchoate, national crusade to get better ways of using land no matter what the cost. In state referendums last year, Colorado's voters vetoed a bid to host the 1976 Winter Olympics; Californians restricted development along their entire 3,500-mile shore line; Floridians passed a $240 million bond issue to buy and preserve ecologically valuable land; New Yorkers approved a $1.15 billion environmental bond issue partly for the same purpose. A provocative study of land-use problems by a task force of Government officials and private experts headed by Laurance S. Rockefeller marveled at the movement and called it "America's new mood." Another study, for the Council on Environmental Quality, described it simply as "the quiet revolution."

The message has deeply impressed politicians. Last week President Nixon urged Congress to take quick action on bills to reform the use of land. The Senate has already passed a national land-use policy bill, and Congress is considering some 200 other measures dealing with problems from urban growth to forest management to the location of power plants.

Virtually every state has acted. Only a handful, notably Vermont, Hawaii and Oregon, have comprehensive laws to guide development. Others have been galvanized into piecemeal action by clear and present dangers to their environment and economy. Montana has passed legislation requiring strip miners to repair the ravaged earth after they peel it away. California, Minnesota and Illinois have adopted tax incentives to encourage farmers to stay on the land--and developers off it. Texas, Connecticut, Delaware and other states have enacted laws to protect their threatened coastlines. Even the Rocky Mountain states, where open land still seems limitless, are beginning to work on tough new restrictions on developers. In Nevada, reports a top state planner, "everyone said, 'You'll never get the cow counties to go along.' Well, the cow counties are pushing us. They have the most to lose, and they know it."

When the states have not moved fast enough, citizens have goaded local governments into devising ways to slow growth or stop it cold. Their solutions are often adopted in overly great haste to get at the root causes of the problems. But they are nonetheless remarkable for their disregard of venerable traditions, of some powerful interest groups. Examples:

Harpswell, Me., an unspoiled lobstering town (pop. 2,500) some 30 miles northeast of Portland, has always subscribed to the theory that property rights reside solely with property owners. Indeed, a 1970 effort by newcomers (mostly well-heeled retirees) to set up a town planning board was squelched in a town meeting. As Lifelong Resident Tom Leeman put it, "A planning board is like a cancer. It starts small, and the first thing you know, it's got you so you can't breathe." But last year, when plans for two large vacation-home subdivisions in Harpswell were announced, the sleepy village awoke to the 20th century. The townspeople passed an 18-month moratorium on all development, hoping that the pause would give them time to protect Harpswell's future. As a first step, they set up a planning board.

Boca Raton, Fla., an affluent (four polo fields) city north of Miami, sized up its rate of growth and realized, to the dismay of residents, that its population, now 47,000, would eventually reach 250,000. As a result, Boca Raton amended the city charter to allow no more than 40,000 housing units within city borders (each containing an average of 2.5 people).

After the population limit of around 100,000 is reached, no more building permits will be granted--ever.

San Jose, Calif., a booming city, actually lives off its own growth. The largest employer is the home-building industry, kept busy by the doubling of the city's population (to 500,000) since 1960. Trouble is, San Jose has been growing so fast that it cannot keep up with the demand for new roads, sewer systems and, above all, schools. Seven of the 26 school districts operate on double sessions. Fed up, citizens last April approved a referendum requiring developers to get special permission from school districts before applying for residential zoning changes. Remarkably, the voters, including those in the building trades, overrode their economic self-interests by cutting the rate of construction. "The people," says Mrs. Claire Benson, a civic leader, "had to choose between continued growth and their kids' needs. They chose."

Other communities have passed laws limiting the height of buildings, thus curbing population density. Sanbornton, N.H., has zoned half its land against tract developers, ruling that new houses can be built only on six-acre lots. Livermore, Calif, issues building permits on the basis of the availability of water, sewage facilities and schools. Carson City, Nev., has chosen Boca Raton's route, and will cut off any further growth when its population hits 55,000.

Moratoriums and other emergency devices mainly represent a desperate reaction to the processes of uncontrolled growth. Since World War II, for instance, the rich potato farm lands of Nassau County, just beyond the eastern limits of New York City, have been transformed by tract houses, shopping centers, neon strips and drive-ins. Today the county is 96% fully developed, and the old distinctions between town and country are completely blurred in the semiurban mess. Similar helter-skelter growth afflicts counties around every major city, from coast to coast.

Taking drastic steps to ease the immediate pressure of development barely confronts the basic issue of what kind of future a town really wants. Communities are slowly learning that the only long-term solutions come from proper planning for land use. That means putting the right development in the right place. For at least a while, the economic costs are sure to be high. Comprehensive planning alone costs the average town $60,000. In addition, taking land off the market for environmental reasons is sure to drive up surrounding land values. But like the costs of preventive medicine, the long-term gains are worth the short-term expense. By banning inappropriate development through planning, towns will save the prohibitive costs of providing the new areas with roads, sewers, schools and police and fire protection.

Edward J. Logue, an administrator who has guided successful programs for New Haven, Boston and New York State, sums up the case: "If land use were mapped out in advance, there would be no speculative value on land. If development were ordered, there would be plenty of room for everyone to live properly. It isn't that we have to invent a process. We just need to commit ourselves."

Some effective commitments are being made at every level of government.

In San Diego, for example, the city under Republican Mayor Pete Wilson is using its zoning powers to restrict the amount of housing construction around the city's edges and to expand building in the downtown areas, where it is really needed.

Meanwhile, the state of Vermont under Democratic Governor Thomas P. Salmon is taking a different approach--using its taxing powers.

The problem in Vermont is that development and speculation are constantly pushing land values up. As values increase, so do property taxes --and many poor Vermont farmers cannot afford to stay on their land. To help keep them down on the farm, the legislature passed a law setting a heavy capital gains tax on short-term land sales, thus curbing speculation. Still another new law pegs the property taxes not to the market value of the land, but to the landowner's income. A family earning less than $4,000 a year henceforth will pay no more than 4% of its income in property taxes, for example, while a family earning over $16,000 will pay no more than 6%.

Certainly every community has to work out its own "process" to meet its own needs, and there is a wide variety of effective models all over the U.S. A sampling:

Ramapo, N.Y. When John F. McAlevey first ran for town supervisor of this New York City suburb in 1965, he campaigned on a platform of controlling growth. He had seen the local population triple since 1940. He also recognized that developers largely determined the patterns of growth, paying little heed to the integrity of the rolling landscape or to the tax consequences of their actions. McAlevey promised to save Ramapo from being submerged in a sea of little houses. He won that election and every one since.

McAlevey's first step was to draw up a master plan for the area and then a zoning ordinance based on that plan. To prepare further for future development, the township set six-year capital budgets for public works. By 1969, the whole package of coordinated controls went into effect. Now, before any project is approved, the developer must prove that it conforms to the master plan and will not overload municipal services, including sewers, roads, parks and playgrounds. If those services do not yet exist, the developer has either to wait until the township builds them on schedule, or else to provide them at his own cost.

Last year, ruling on a suit by landowners and developers who wanted to overthrow McAlevey's program, the New York State Court of Appeals upheld--and praised--Ramapo's scheme. Says McAlevey: "What we fought for was the right of a community through its elected officials to chart its own destiny."

Fairfax County, Va. This pleasant suburban area outside Washington, D.C., has been troubled by a population surge. In 1969, residents organized to vote out county supervisors who wanted more growth and to vote in candidates who pledged to control it. By 1971 the new board knew that it had to do more than slow growth. It appointed a task force, led by Rufus Phillips, a county supervisor and professional regional planner, to figure out how the county should grow. Surprisingly, guidelines were found everywhere. "We researched everything that is going on here and abroad," says Phillips. "We sat down with the city planners; we studied Ramapo's action. We looked at British and Scandinavian efforts, where the governments largely control development planning. Then we turned to the citizens, sent out questionnaires through the county, held open workshops and public hearings. It took six months to put a program together and another 18 months to put it all into effect."

Fairfax's 161-page program reads like a comprehensive planner's primer. The plan will deploy a full arsenal of conventional planning devices: a new master plan and a zoning ordinance, staged capital programs, an inventory of all the area's resources, from buildings and playgrounds to fields and streams. Beyond that, the county will require developers to describe the environmental impact of their projects before construction is approved. Some $2,000,000 from revenue-sharing funds will be budgeted for buying unspoiled property for "land banks."

More important, the county is starting to tackle the hard issues that have direct social effects. It has passed an ordinance, now being contested in the courts, to make all developments of more than 50 dwellings include some housing for low-and moderate-income groups. Next on the agenda is an investigation of whether Fairfax County can recapture through a "rezoning tax" some of the increased land value created by public spending on new roads, schools and sewers. Says Phillips: "What we are trying to do is orchestrate growth. We want to balance such things as transportation, housing and schools with the quality of life."

Lake Tahoe, Nev. and Calif. Parts of the spectacularly beautiful Lake Tahoe basin have become popular resorts, complete with trailer parks, motels, casinos, water skiers and tacky little houses. Sewage, seeping from ill-planned septic tanks, has begun to pollute the once crystal-clear waters. Because the California-Nevada boundary cuts across the basin, officials of both states recognized that joint action was necessary to prevent any further deterioration. In 1969, the states joined to create an agency with a wide enough jurisdiction to cope with the ills of the entire basin.

The Lake Tahoe Regional Planning Agency was given broad powers to impose development standards on the counties in the basin. The agency first made a study of how much development the basin's soil and water could support and the kind of development that would least harm forests, parks and scenery. From the study, the agency produced land-use maps and set ground rules for what developers could and could not do.

Far from utopian, the Lake Tahoe plan provides for an eventual population of 288,000 in the basin. But the commission sharply restricted subdivisions on the slopes of the surrounding mountains and along the shore fronts and streams.

It will therefore remove a total of 34,000 privately owned acres from "development opportunity," mostly by buying them, or exchanging them for parcels of existing park land that can be developed with little environmental damage. But the plan also overturns a cherished concept. Says Nevada Rancher Ray Kinsley, a commissioner of the agency: "I used to think that we could own the land from the center of the earth to the top of the sky. Now I know better."

Indeed, all plans assume that society, represented by an appointive or elected agency, has a right to tell private landowners what they can do with their land. Thus, as Americans ask for more and more land-use plans, they do so at some cost to their own freedom. Developer James Rouse of Baltimore says: "We are in the midst of the most rapid, radical change in the concept of property rights in our history.

It's good. There may be excesses, but in a great rush our society is saying that we won't squander the land any more."

Understandably, many affected landowners disagree, and are seeking redress in court. At Lake Tahoe, for instance, not only is the regional commission being sued for some $200 million, but the commissioners are also being named in other suits. Asked how much the suits against him amount to, Ray Kinsley calmly replies: "Haven't counted. Maybe $235 or $240 million. I'm in court for the rest of my lifetime, I guess."

The legal foundation for all such cases is the Fifth Amendment to the Constitution, which specifies, "... nor shall private property be taken for public use, without just compensation." The 14th Amendment adds that private property shall not be taken "without due process of law." Traditionally, the courts have upheld land-use regulations that leave property owners some "reasonable use" of their land. That is, a man owning 100 acres would still have reasonable use if zoning restrictions were changed to allow only ten houses instead of 100 to be built on his property. The crunch comes when he is left no economic use at all--and that happens more and more often.

In Stratford, Conn., for example, the Rykar Industrial Corp. wants to develop 277 acres of the Great Salt Meadow that it has held for more than 20 years. But under Connecticut's wetlands law, the state now regulates development on the ecologically valuable marsh and refuses to issue Rykar a permit to dredge and fill the land. Rykar has sued, charging that the state has illegally "taken" its land. In compensation, the company wants $77.7 million. The case, or another like it, eventually will be heard by the U.S. Supreme Court, which will have to make a decision that will strongly influence the course of America's land use.

Land-use laws diminish not only the traditional rights of landowners but also the power of local governments. As a result, home rule--the right of local governments to determine their fate without outside interference--has become the banner under which opponents of planning rally. The issue is at the heart of controversies from Utah, where rural counties do not want to be told by the state how to deal with their land, to Martha's Vineyard, Mass., where islanders are hotly debating whether to accept the Federal Government's jurisdiction over their development.

New York State's Urban Development Corp. has suffered too. A quasi-public organization, it was formed in 1968 by the state legislature mainly to build low-and moderate-income housing--fast. The UDC was given unprecedented powers to "override" all the local zoning ordinances and construction codes that hamper building. After launching new towns in the country and apartment projects in cities, the UDC turned to the New York City suburbs, asking nine middle-income commuting communities to accept some 900 units of such housing. Citizens' groups in the towns immediately balked, saying that the UDC should not thrust itself into their affairs.

By last May they had mustered enough political support in the state capital to have the UDC's override powers stripped away by the legislature. Home rule prevailed.

Unfortunately, the pious talk about home rule often disguises an uglier issue. In Bedford, N. Y., for example, a woman who opposed the UDC's low-cost housing proposal stated: "Let one of those people in, and they'll bring their whole families from Carolina!" Similarly, when other suburban communities try to exclude new residents--especially blacks--their arguments invariably evoke traditional land controls.

"It used to be that the liberals were for zoning and the conservatives against it," says Harvard Urbanologist Paul Ylvisaker. "But now the situation has reversed itself, causing almost a conspiracy to use zoning against the poor and the blacks." Even the issue of the environment has been twisted to serve racist ends. Lawyer Richard Babcock, who has fought exclusion in the federal and Illinois courts, says: "Frequently environmental reasons are used as a legitimate cover for less respectable motives."

The states are probably as much at fault as the communities themselves for such abuses of land-use controls. They have neglected their constitutional right to control land use within their borders, making local governments--which are much more susceptible to pressures by local power groups --accept that responsibility almost by default. But now the states will have to recover their original power, whether they want it or not. Congress is almost sure to enact a major law this fall that will force states to oversee all development of their land.

Drafted by Washington Democratic Senator Henry M. Jackson, chairman of the powerful Interior Committee, and passed in the Senate by a 64-21 vote last June, the National Land Use Policy and Planning Assistance Act does not fix policy at all. Instead, it provides $1.1 billion over eight years to help states devise a process of planning and "methods of implementation" for their plans. The states would have to pay special attention to: 1) areas of critical environmental concern, notably shore lines, floodplains, wildlife habitats; 2) areas affected by key facilities that induce growth, notably highways, airports, power plants; 3) large-scale private developments; and 4) land bordering new towns. An amendment wisely calls for state regulation of recreational-land sales to ensure that new projects will not cause environmental troubles and that developers are financially capable of carrying out their proposals.

In its present form, the Jackson bill also starts to put the Federal Government's own houses in order. Right now, some 122 separate federal programs that affect land use remain to be coordinated. It is not unusual for one agency, dealing with highways, say, to clash with another dealing with air quality.

The bill requires Washington to coordinate its programs with state plans. How much that provision will affect public lands --the Federal Government owns one-third of U.S. land and still makes piecemeal decisions as to its use--remains to be seen.

The most controversial question before the House, however, is whether to penalize the states that refuse to develop plans or put them into effect. If Jackson had his way, the Government each year would withhold from recalcitrant states an increasing percentage of their annual federal funds for highways, airports and land-and water-conservation programs. The Senate did not include those penalties in its bill, and the House's decision on them is much in doubt. To proponents, including the Administration, the penalties are absolutely necessary to prod the states to action. To opponents, the penalties represent an unnecessary "gun at the Governor's head."

The penalties should be enacted if for no other reason than that most states are traditionally reluctant to accept planning. Tough minimum standards should also be written into the act. At present the bill rather generously assumes that the states can produce good plans.

Many other new approaches are needed. Among them:

REGIONAL-PLANNING authorities should be encouraged wherever possible. These can treat whole watersheds or air basins and thus cope with environmental questions too large for local governments. They also are needed around cities, where growth is often the concern of several counties. One model:

the Twin Cities Metropolitan Council in Minnesota, which plans development for nine counties and has veto power over growth-inducing facilities--including projects like airports and sewers.

NEW TOWNS should be more strongly created. One reason: when these longterm, large-scale projects are begun by developers, they know that they will be on the site for years and be easy targets for complaints and lawsuits. Thus developers tend to plan better and build better. The U.S. Department of Housing and Urban Development should help to finance--not simply guarantee loans covering--the high early costs (planning, road and sewer building) of new towns whose builders pledge to include substantial amounts of housing for the poor. HUD should also streamline bureaucratic procedures now ensnarling existing programs. For their part, local governments should help to hold down soaring land prices in regions that are becoming urbanized so that big parcels of land there can be acquired without producing windfalls for speculators. This might be done by levying heavy taxes on speculative profits, as in Vermont.

TOP FARM LANDS should be preserved, perhaps by putting them into "agricultural preserves." In such areas, the farmers' property taxes are reduced--if the owners pledge not to sell out to developers for a specified period of time.

ZONING RULES should be updated and upgraded in almost every community. Instead of arbitrarily dividing up a township, local governments should analyze their growth rates and coordinate them with future capital-spending programs. In addition, they should forbid the development of flood plains and other environmentally fragile--or dangerous--areas.

These can properly be reserved, however, for parks, golf courses and other recreational uses. After doing this, the towns should draw their zones to guide development selectively--not exclude it.

OPEN SPACE must be set aside and, wherever possible, made available for public use and enjoyment. Some areas are of particular value: coastal dunes that protect the shore front, forests that reduce floods, wetlands that start biological food chains. In addition to outright purchase or donation, there are many ways to preserve these areas. Towns can tax themselves to buy "greenbelts," or they can buy "easements"--the rights to keep property from being developed without actually buying the property itself.

CLUSTER PLANNING should become the rule rather than the exception. Instead of taking a parcel of land and carving it into the greatest number of lots, developers should cluster their houses together to prevent sprawl and preserve open space. In return, they avoid the expense of building long roads and sewer lines through their projects.

Such measures are far from unrealistic. Citizens seem ready to accept the legal, financial and social consequences of more planning in exchange for less haphazard, wasteful growth. Given that new mood, there is a strong chance that more and more land will be wisely used.

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