Growing Smart

The Growing Smart Legislative Guidebook: Model Statutes for Planning and the Management of Change, 2002 edition, was published by the American Planning Association in January and is available for downloading. Here's a summary of what's in the Guidebook.

Introduction
The Introduction describes the background and philosophy of the Growing Smart project as well as the organization of the Legislative Guidebook.

Chapter 1
Initiating Planning Statute Reform discusses how to begin planning statute reform through the state legislature, the governor, and private interest groups. It identifies several institutional mechanisms, including special study commissions composed of state legislators, independent study commissions, task forces composed of legislators and nonelected officials, private coalitions, and joint legislative study committees. The chapter also reviews specific approaches that will help ensure the reform initiative's success (regardless of which organizational vehicle is selected). Finally, it provides three model statutes and two model executive orders that describe the structure and authority of the various institutional alternatives.

Chapter 2
Purposes and Grant of Power examines purpose statements -- language that indicates why state planning legislation was enacted and what it is intended to accomplish. The purpose statements contained in the model statutes provide four alternatives posed as fundamental policy choices for state legislatures: (1) planning as an advisory function; (2) planning as an activity to be encouraged through incentives; (3) planning as a mandatory activity necessary in order to exercise regulatory and related powers; and (4) mandated state-regional-local planning that is integrated both vertically and horizontally. The model legislation then describes a series of long-range state interests that all levels of government must take into account when exercising planning authority. Finally, the legislation includes language that grants planning powers to local government.

Chapter 3
Definitions assembles in one location all of the definitions of "general applicability" that are used in the Legislative Guidebook. Specific definitions that are pertinent only to particular model statutes are located elsewhere in the Guidebook..

Chapter 4
State Planning proposes legislation that establishes various types of state planning agencies, describes their functions, and details different types of state plans and procedures for their adoption and use by state agencies. Some state plans are intended as vehicles simply to formulate policy or create a "vision" for the state. Others have regulatory implications for state and regional agencies and local governments, such as plans for affordable housing and state biodiversity conservation. The chapter includes a model state capital budgeting and capital improvement programming statute, and concludes with a Smart Growth Act based on a Maryland law.

Chapter 5
State Land-Use Control includes model legislation for: (1) siting state facilities; (2) designating areas of critical state concern; and (3) regulating developments of regional impact (DRIs), which are developments that have multijurisdictional impacts.

Chapter 6
Regional Planning proposes statutory alternatives for the formation and organizational structure of regional planning agencies. The model legislation describes a full range of functions and duties for such agencies. It details the contents of regional comprehensive and functional plans (such as those for housing and transportation) and procedures for their adoption. A special feature language for the designation of urban growth areas within a regional comprehensive plan. The chapter also proposes a variety of implementation tools, including the review of plans of state agencies, local governments, and special districts and of major capital projects of extra-jurisdictional or regional significance. Further, the chapter includes model legislation for agreements between the regional planning agency and other governmental units to implement regional plans. Finally, a model statute is provided for the designation of the regional planning agency as a substate district organization.

Chapter 7
Local Planning authorizes planning at the local level of government. It is divided into four parts. The first part addresses the role of the planning function in local government — how the "local planning agency" is established, what its relationship with the legislative body and chief executive officer should be, and what are its powers. Several alternatives are advanced for the structure of a local planning commission. This part also provides a role for neighborhood planning councils and independent neighborhood and community organizations.

The second part details the contents of a local comprehensive plan in terms of a mandatory set of elements (if the decision is made to mandate local planning) and optional elements. The section also describes different subplans that are focused on specific areas, like neighborhoods, transit stops, and redevelopment areas. In addition, the text includes model language that describes systems for land market monitoring to ensure an adequate supply of buildable land. Such a system would be required if the local comprehensive plan contains urban growth areas, which are described in Chapter 6, Regional Planning.

The third part sets forth procedures for plan review, adoption, and amendment. The plan review component contains an optional procedure for state approval of regional and local comprehensive plans, with an appeal to a state comprehensive plan appeals board. Municipalities would also be able to appeal to the board urban growth area designations by a regional or county planning agency if agreement cannot otherwise be reached. Another innovative feature of this part is its express provision for public collaborative processes in plan-making that goes beyond the simple requirement of the single public hearing advocated in Section 8 of the Standard City Planning Enabling Act (1928). It offers a model statute to guide local governments in ensuring that the plan preparation process engages the general public.

The fourth part describes measures that carry out the plan and monitor its implementation, including corridor mapping and local capital budgeting. The section also includes a description of agreements with other governmental units and nongovernmental organizations, which are identified in the local comprehensive plan as having implementation responsibilities. It also provides for the establishment of benchmarking systems to measure and track performance in achieving the goals of local plans.

Chapter 8
Local Land Development Regulation contains model statutes that authorize local governments to adopt a variety of development regulations. Topics covered include zoning, subdivision, planned unit development (PUD), uniform development standards, exactions, development impact fees, vesting, nonconforming uses, and development agreements, among others. A feature of the chapter is model language to gauge consistency between a local comprehensive plan and land development regulations or specific development proposals.

Chapter 9
Special and Environmental Land Development Regulations and Land-Use Incentives contains model statutes that address various special issues in land development regulation, including environmental issues. The protection of, and regulation of development in, critical and sensitive areas and natural hazard areas is addressed in Section 9-101. Section 9-201 is concerned with transportation demand management. And Section 9-301 authorizes regulations for the protection of historic properties and districts and for the preservation of aesthetic design standards in specific districts. The second group of statutes provides flexible tools for balancing the need to protect the public and the environment with the rights of property owners.

The first two sections in this group, 9-401 and 9-402, authorize transfer of development rights from one property to another and the purchase of development rights by the local government. The section on conservation easements, 9-402.1, provides the legal instrument through which the transfer or purchase of development rights is implemented. And the mitigation Section, 9-403, authorizes local governments to permit development in otherwise-undevelopable critical and sensitive areas, such as wetlands, in exchange for the creation or restoration of replacement critical and sensitive areas elsewhere. A final model statute, Section 9-501, authorizes land development regulations that provide density and intensity incentives for affordable housing, good community design, and open space donation.

Chapter 10
Administrative and Judicial Review of Land-Use Decisions presents model legislation for the review of development permit applications by local governments, and judicial review of land-use decisions on these permits. It is intended to be a complete law, but it also contains such a range of options and ideas that it is possible to pick and choose from the alternatives when drafting legislation. Part one contains definitions and other provisions to be used throughout the chapter. Part two describes the components of a unified development permit review process. Parts three and four contain authorizing legislation for a hearing examiner who could assume a variety of land-use advisory and decision-making responsibilities and a Land-Use Review Board that would replace the board of adjustment or zoning appeals. Part five describes a variety of administrative actions and remedies that a local government could authorize, including variances, conditional uses, and an experimental proposal for mediated agreements to modify the land development restrictions that apply to a property. Part six describes a uniform procedure for judicial review of land-use decisions.

Chapter 11
Enforcement of Land Development Regulations addresses the manner in which local land development regulations are enforced. It stresses pursuing administrative remedies before resorting to judicial measures. Under these models, informal enforcement is the initial option. Should more formal means be required, the chapter provides model language for official notice to alleged violators, procedures for issuing preliminary orders and conducting enforcement hearings, and methods for enforcing final orders. Where administrative action is not or would not be successful, the local government can pursue judicial relief, through civil and criminal proceedings that ensure compliance.

Chapter 12
Integrating State Environmental Policy Acts with Local Planning discusses ways of evaluating the environmental effects of local comprehensive planning and the problems of integrating state environmental policy acts, where they exist, into local planning. It provides three statutory alternatives. Alternative 1 requires the local planning agency to prepare a written environmental evaluation of several elements of its local comprehensive plan in order to understand the significant effects of the plan on the natural environment. In contrast to Alternatives 2 and 3, which follow, this alternative is not binding on the local government in a regulatory sense and does not involve a state environmental policy act that applies to specific projects or land-use actions, such as single-tract rezonings or conditional use permits. Alternative 2 presumes the existence of a state environmental policy act. The purpose of this alternative is to authorize the preparation of an environmental impact statement on a local comprehensive plan so that public agencies can avoid or carry out a more limited environmental review of land-use approvals that are based on that plan. By contrast to Alternative 1, this alternative is more complex in that it goes beyond being a mere environmental evaluation with no regulatory implications. Finally, Alternative 3 integrates the consideration of environmental impacts under the state environmental policy act with the review and approval of land-use actions by a public agency.

Chapter 13
Financing Required Planning contains various model statutes that authorize methods of financing the planning activities authorized and required elsewhere in the Guidebook. Sections 13-101 through 13-103 authorize local governments to adopt and impose taxes to finance planning: a property tax, real property transfer tax, and a development excise tax. Section 13-104 is concerned with the dedicated purposes to which the special tax revenue may be put. Section 13-201 is the Smart Growth Technical Assistance Act. It creates a state program under which grants may be made to regional planning agencies and local governments to support their "smart growth" planning activities.

Chapter 14
Tax Relief Devices and Tax Equity Programs discusses alternative approaches used to address fiscal disparity -- differences in revenue-raising capacity among local governments that are a product of the type of development that occurs. Two model statutes are presented: (1) regional tax-base sharing legislation, by which the growth in commercial, industrial, and high-value residential components of the regional property tax base is shared among local governments; and (2) a statute permitting a voluntary intergovernmental agreement among two or more units of local government to create a joint economic development zone. The contracting governments negotiate which public services and facilities are to be provided in the area that is to be included in the zone, and which tax and other revenues that result from commercial, industrial, and other development will be shared, and in what amounts or proportions. The chapter also contains model legislation for redevelopment, tax increment financing, and tax abatement. It includes a model law for designating agricultural districts, special areas where commercial agriculture is encouraged and protected. Land within such areas is then assessed at its use value in agriculture rather than its market or speculative value, a concept called "differential assessment." The chapter concludes with a research note on public school finance and its relationship to planning and development prepared by Prof. Michael Addonizio of Wayne State University in Detroit.

Chapter 15
State-Level Geographic Information Systems and Public Records of Plans Land Development Regulations, and Development Permits. This chapter proposes model legislation for state-level geographic information systems (GIS). GIS is a computerized system that stores and links spatial or locationally defined data. Increasingly, state governments are establishing, by statute or administrative or executive measures, formal structures within them to manage, coordinate, and analyze geographic information. Section 15-101 establishes a division of geographic information in the state planning agency (although the function could be placed in any appropriate state department). The division is charged with operational responsibility for establishing and maintaining the state GIS, along with affiliated functions such as administering grant programs to local government and providing access to training. It also has rule-making authority. A Geographic Information Advisory Board provides general policy advice to the division under Section 15-102. The chapter also proposes statutes, in Sections 15-201 to 15-203, to ensure a permanent, easily accessible central storage of the rules and decisions that control or guide land development, including plans, land development regulations, and development permits through a system of public records.

A Q&A with Stuart Meck, FAICP, General Editor of Growing Smart

Q: Why did APA undertake the Growing Smart project?

A: Our tools are outdated for the times we live in. We need better statutory models that meet contemporary needs. Most planning statutes in the United States descend from two model acts drafted by an advisory committee of the U.S. Department of Commerce in the 1920s, under Commerce Secretary (and later President) Herbert Hoover. In the 1920s, government was simpler and planning was a local activity, not something that was expected of all levels of government. Now the intergovernmental dimension is more complex.

In some communities and regions since the 1970s, high rates of growth have prompted concern over cost of services, adverse impacts on the environment and quality of life, and the balance between jobs and housing. A number of states recognized these concerns and state legislatures responded. Some states now take an active role in managing this intergovernmental dimension to ensure uniformity, fairness, and the advancement of state interests.

At the end of the 20th century, we also have a different view of land. People no longer believe, as they did in the 19th century, that land is merely a commodity to be bought and sold. We now also regard land as resource. Where we once encouraged the filling in and development of swamps, we now regard those same wetlands to be a vital part of nature's system of flood control and important for wildlife and their habitats. Land has qualities that should be protected for the benefit of future generations. We see vacant, developable land as having competing social values — it can be used for the construction of affordable housing or for the continuation of agriculture.

People expect more of planning now. In the 1920s, community plans tended to be prepared by consultants working for elite groups who sought little broad-based public support or involvement. What opportunities there were for citizen participation were rudimentary — a single public hearing after the major planning decisions had already been made. As a consequence, such plans were not often implemented. Although many planning statutes are silent on the tools and techniques of participation, citizens now expect to be engaged in community planning processes, and, when they participate, they expect to see results.

There is also a more challenging legal environment for planning. Land-use controls are being employed to solve or prevent environmental problems, maintain open space, exact public improvements for schools and roads, and preserve agricultural land. The line between protecting the public from nuisances — the focus of the 1920s — and securing public benefits has blurred over the past 80 years. In response, courts have begun to require government to compensate land owners for regulations that result in either a permanent or temporary taking of private property, that go "too far" in pushing the envelope in protecting the public health, safety, and welfare. Thus, the planning basis for our development decisions becomes even more significant.

Q: Can states undertake reform by themselves?

A: It is hard to undertake statutory reform without understanding what has been tried and what works. When states decide to evaluate their planning statutes, they find that the process is complex, time-consuming, and expensive. Often they can only focus on two or three states for comparison. The information they need to undertake the evaluation is hard to assemble.

Q: Who is the audience for Growing Smart?

A: The main audience is officials in the executive and legislative branches of state government — the governor and his or her staff, state legislators, state legislative researcher, staff of key legislative committees, state planning offices, departments of community affairs, and other state offices with missions related to housing, land use, economic development, transportation, community revitalization, and the environment. The audience also includes public officials at the local and regional levels — in cities, towns, counties, and regional agencies such as councils of government and regional planning commissions. In addition the project hopes to reach those who are affected by planning decisions and who have an interest in how the statutes are revised — local planners, builders, developers, real estate and design professionals, smart growth and affordable housing advocates, environmentalists, highway and transit specialists, and citizens.

Q: Where did the idea for Growing Smart originate?

A: The idea originated from two sources at about the same time. The concept of a new generation of model planning and zoning enabling legislation was originally a recommendation by the Advisory Commission on Regulatory Barriers to Affordable Housing, which was created during the administration of President George Bush and Secretary Jack Kemp at the U.S. Department of Housing and Urban Development (HUD). The commission, in its 1991 report, "Not in My Back Yard": Removing Barriers to Affordable Housing, recommended that HUD assume a leadership role and work with government and private-industry groups, such as the American Bar Association, the American Planning Association, National Association of Home Builders, National Governors' Association, League of Cities, State community affairs agencies, and others to develop consensus-based model codes and statutes for use by State and local governments. Specifically, the Commission sees a need for a new model State zoning enabling act with a fair-share component, model impact-fee standards, and a model land-development and subdivision-control ordinance.

All of the recommendations in the commission's report were included in the Growing Smart Legislative Guidebook, including state and local barrier removal plans, state zoning reform, conflict resolution or mediation, streamlining state regulatory responsibility, time limits on processing and approvals, and state impact fee standards.

Also in 1991 APA's Chapter Presidents Council asked the APA Board of Directors to direct the Research Department to investigate the development of new model planning and zoning enabling legislation to replace the two model acts from the 1920s. The council believed that APA should provide leadership in the reform of the nation's planning statutes to meet the needs of the next century. APA created a task force to develop an approach to draft the model legislation. The task force of planners and attorneys met in Chicago in March 1991. The report of that task force ultimately led to the submission of a proposal to the U.S. Department of Housing and Urban Development and the Henry M. Jackson Foundation in 1993, and funding of the proposal in 1994.

Q: How long did Growing Smart take?

A: Seven years. The project began in October 1994 and concluded in November 2001.

Q: Must every state use the same model statutes?

A: No. If one thing is clear, there is no "one-size-fits-all" with respect to planning statutes. As APA began this research, it quickly became apparent that states were increasingly shaping their legislation to address problems that were unique to their political, social, economic and environmental circumstances. Consequently, the models in the Guidebook are drafted to give users alternative approaches, insofar as possible. The Guidebook does not make specific recommendations for each state. States can pick and choose from the proposals for enabling legislation in the Guidebook. The Guidebook is reference book, not a policy prescription. Because it is a compendium of options, with commentary, it cannot be "adopted." Further, because enabling legislation "enables," local governments can decide themselves whether or not they wish to use certain powers granted to them.

Q: Does the Legislative Guidebook call for federal legislation to preempt states and local governments?

A: No, the Guidebook does not contain proposals for federal legislation at all. It does, however, recognize the impact that federal legislation has on planning, especially in the areas of transportation and the environment.

Q: Who is using the Legislative Guidebook?

A: Because the Guidebook was issued in two interim editions, one in 1996 and the other in 1998, some 13 states have incorporated language from these earlier editions into laws and bills. For example, planning legislation adopted by the states of Arizona, Tennessee, and Wisconsin in 1998 drew heavily on concepts and statutory provisions in the Guidebook. Other states, like Illinois, Oklahoma, Pennsylvania, and Hawaii, have considered bills that expressly adapted Guidebook language.

Q: How did APA get input on the project?

A: In early 1995, APA announced the project by mailing a cover letter, a four-page project summary, and an "Invitation for Involvement" questionnaire to the CEOs of 161 national and regional interest groups. From 1995 to the present, APA has conducted a very robust outreach program, including many presentations to national interest groups and state legislative study committees. APA also mailed a semi-annual project newsletter to a list of over 800 and maintained a heavily visited project website. It included progress reports on Growing Smart in Planning Research Highlights, a newsletter of APA's Research Department that summarizes the status of all our sponsored projects. APA also kept track of requests for information on planning statute reform.

In the last phase of the project, more than 330 pages of comments were received from environmental groups, smart growth advocates, and organizations representing builders and developers. The project team carefully considered each comment and responded in a series of detailed memos. By APA's estimate, over 85 percent of the suggestions made in these comment letters were accommodated in the Guidebook. These comments were in addition to suggestions made by the Directorate, the official project advisory committee.

Q: Are the Guidebook and User Manual policies of APA?

A: No. The APA Board of Directors has stated that the Guidebook and User Manual are research products and do not necessarily represent the policy of APA, unless specifically identified as such in a policy guide or other board action.

A project Directorate, consisting of representatives of national organizations and representatives for the built and natural environments and local government law, plus APA, advised the Growing Smart project team.

The practical counsel of Directorate members was invaluable in guiding the project. Operating under a charter — a set of bylaws for its operation — and working by consensus, the Directorate met 13 times during the course of the project (from 1995 to 2001) to review and suggest changes, including alternatives not previously considered, in drafts of Chapters of the Legislative Guidebook and other work products. Directorate members also reviewed proposals and comments on the project materials from organizations and persons not represented on the Directorate but affected by legislative reform.

Membership on the Directorate did not imply or mean endorsement of any aspect of the Growing Smart project; each member organization retained its right to act independently with respect to any proposal contained in the Guidebook.

At various points in the life of the project from 1994 through 2001, members of the Directorate included (by organization):

American Planning Association

William Klein, AICP, Director of Research, Chicago

Council of Governors' Policy Advisors

Richard Gross, Executive Director, Washington, D.C.

Council of State Community Development Agencies

John Sidor, Executive Director, Washington, D.C.
Kimberly Dellinger, Chief, Division of Housing Policy Development, California Department of Housing and Community Development, Sacramento

National Conference of State Legislatures (NCSL)

Barbara Gray, Massachusetts State Representative, (retired), Framingham, Massachusetts
Larry Morandi, Director, Environment, Energy, and Transportation Program, NCSL, Denver
Douglas Farquhar, Program Principal, NCSL, Denver
The Hon. Myron Orfield, Jr., Minnesota State Representative, Minneapolis

National Association of Counties

Charles Compton, AICP, Planning Director, Lexington County, South Carolina
James Davenport, AICP, Research Associate, NACO, Washington, D.C.
Haron Battle, Associate Legislative Director for Community and Economic Development, Washington, D.C.
Karen Jackson Sims, AICP, Director, Community Affairs/Intergovernmental Relations, Manatee County Government, Bradenton, Florida

National Association of Regional Councils

William Dodge, Former Executive Director, NARC, Washington, D.C., and Principal, Regional Excellence Consulting, Bethesda, Maryland
Kenneth Sulzer, AICP, Executive Director (retired), San Diego Association of Governments, San Diego
John Epling, AICP, Former Executive Director, NARC

National Association of Towns and Townships

Joan Buser, Township Supervisor (retired), Oakland Township, Rochester, Michigan, now of Flat Rock, North Carolina
Elam Herr, Director of Legislation, Pennsylvania Association of Township Supervisors, Camp Hill, Pennsylvania
Kenneth Grieder, Executive Director, Pennsylvania Association of Township Supervisors, Camp Hill, Pennsylvania

National Governors Association

Evan Richert, AICP, Director, Maine State Planning Office, Augusta, Maine
Barbara Wells, Program Director, Energy and Environment, National Governors Association, Washington, D.C.

National League of Cities

Donald Borut, Executive Director, Washington, D.C.
H. Bernard Waugh, Jr., Former General Counsel, New Hampshire Municipal Association, Concord, New Hampshire, and Attorney, Gardner and Fulton, Lebanon, New Hampshire

U.S. Conference of Mayors

Daniel Kemmis, Director, Center for the Rocky Mountain West, Missoula, Montana
Eugene Lowe, Assistant Executive Director, U.S. Conference of Mayors, Washington, D.C.
J. Thomas Cochran, Executive Director, Washington, D.C.

Member-at-Large for the Built Environment

Paul Barru, BHI Inc., Littleton, Colorado, and Former Chair, National Association of Home Builders Land Development Committee, Washington, D.C.

Member-at-Large for Local Government Law

Henry Underhill, Jr., Executive Ddirector, International Municipal Lawyers Association, Washington, D.C.
Benjamin Brown, Attorney, Baltimore

Member-at-Large for the Natural Environment

James McElfish, Senior Attorney, Environmental Law Institute, Washington, D.C.
William Futrell, President, Environmental Law Institute, Washington, D.C.