Part IV: Model state programs
Possible land-use planning models for Ohio
The Oregon system, enacted in 1973 and under continuous change, is perhaps the most advanced state-administered, land-use planning system in the United States.55 The system is administered by a state agency, the Department of Land Conservation and Development, and an appointed board, the Land Conservation and Development Commission. Over a period of years, the commission has adopted 19 statewide planning goals, as well as detailed regulations that guide how the statutes are administered. All cities and counties in the state are required to have local comprehensive plans and implementing measures that satisfy both planning goals and administrative rules. Once local governments adopt new comprehensive land-use plans or modify existing plans, the commission, with the assistance of the state department, reviews each proposed city and county plan to determine whether it properly implements these goals.
If the local government's plan satisfies the state requirements, the commission "acknowledges" or certifies the plan. If it does not, the commission requires that it be revised and resubmitted. The commission has the power to force local governments to fulfill their responsibilities under the legislation by identifying corrective action to be taken and suspending local authority to issue building permits or approve land subdivisions. Where a local government refuses to rezone property for higher density residential uses, which the Oregon program requires, the commission can force the issuance of permits or approval of subdivision. The commission can also block distribution of certain state tax revenues, such as those from cigarette and liquor taxes, to a local government, up to the amount the government had previously received under planning grants. Over the years, the commission has used all of these sanctions.
Decisions made by cities, counties, and the regional planning agency for the Portland area can be appealed to a land-use board of appeals (LUBA), a specialized appellate court whose members are three attorneys. LUBA has a mandate to reverse and remand these decisions when they violate the local comprehensive plan or the state goals. It may also reverse and remand the governmental decisions when they are unconstitutional, lack evidence to support them, or are based on an error in law. LUBA is not a trial court, but it makes its rulings in most cases based on a record submitted to it by the local government.
Here is a simple example of how LUBA works. Say a local government in Oregon has had its local plan acknowledged by the Land Conservation and Development Commission. The plan shows the future density in one part of the community at a level that is greater than it is now. When the developer applies to rezone property so that it is consistent with that proposed density in the plan, the local government refuses to approve the change. The developer appeals the denial to LUBA, which in all likelihood will reverse the decision and order the local government to rezone the land. LUBA's strength is that it decides these appeals rapidly, within about three months, much faster than the regular state court system.
The Oregon system has many interesting features. The best known are the requirements for urban growth boundaries and protection of agricultural land.56 One goal of the Oregon system establishes a policy of urban containment that requires every city in the state to establish an urban growth boundary contain existing built-upon land as well as vacant, undeveloped land that is sufficient to accommodate growth during a 20-year planning period. Local governments must monitor land supply and periodically consider adjustments to the urban growth boundary. For the Portland metropolitan area, the Land Development and Conservation Commission has established minimum density requirements of 10 dwelling units per net acre in Portland and from six to eight dwelling units per net acre in outlying suburban areas.57 The intention is to ensure that, over time, development within the growth boundary becomes denser, reducing pressure to expand the boundary as population grows. Outside the urban growth boundaries, rural lands are placed in what is called exclusive farmland use (EFU) zoning, a highly restrictive form of agricultural zoning that limits the use and structures in the zone to farming and closely related activities and structures.58 Land subject to such controls is then taxed at its value for farming, not development.
The Oregon system has proved successful, for the most part, with densities in the Portland metropolitan area's urban growth boundary, for example, gradually increasing.59 Of the state's 28 million acres in private holdings, some 2 million were inside urban growth boundaries in the early '90s.60 The system has also dramatically slowed, but not completely eliminated, nonagricultural uses in the areas outside the urban growth boundary around the state. The loophole in the law has to do with approval by local governments of "hobby farms" in the rural areas by the counties. These farms are not commercial operations but are non-economic agricultural operations that are also serving as rural home sites serviced by on-site sewage treatment systems. Consequently, in some areas, most notably the Willamette Valley outside Portland, some low-density sprawl, under the guise of hobby farms, has occurred; this is a result of lax enforcement by the counties.
There has also been criticism, notably by developers and homebuilders, that the urban growth boundaries throughout the state, but particularly in the Portland area, have not been expanded sufficiently over time to add to the supply of land for housing; this has increased the costs of all housing relative to income. To some degree, this criticism may be valid (although it is a logical consequence of constraining land supply), but it should be recognized the cost of housing has also been bid up by current demand for dwellings as the Portland metropolitan economy expands.
Washington State enacted new growth management laws in 1990 and 199161 and, in 1997, approved a series of minor amendments to the planning statutes. Under the Washington state program, counties (as well as the cities within them) of a certain population size and/or that have experienced certain percentages of population increases over the previous decade must prepare comprehensive plans. The plans must reflect cooperative efforts with each municipal government in that county's jurisdiction.
Like the statutes and administrative rules governing the Oregon system, Washington's are extremely detailed.62 The statutes require that each local comprehensive plan include elements addressing land use, housing, capital facilities, transportation, and utilities. The program employs extensive use of urban growth areas. County plans must designate urban growth areas and those lands outside the urban growth boundaries that will be classified as "rural." They must also limit uses on such lands to those that preserve the lands' rural character. The county plan elements must be consistent with one another as well as with the plans of each city or county sharing a common border or regional problems. Under the Washington system, the comprehensive plan replaces zoning and other development regulations as the "constitution" of land-use law; such regulations must conform to and carry out the plan.
Unlike Oregon, there is no state agency or board that approves or certifies these local plans. Instead, the state has created three regional growth management hearing boards with the authority to hear petitions alleging that a state agency, county, or city is not in compliance with the growth management laws, including the goals for the state that are contained in the statute, or that the 20-year growth management population projection used to create urban growth boundaries should be adjusted. In hearing these petitions, the burden is on the challenging party to show noncompliance. The boards presume that a city or county's plans, development regulations, and amendments are valid upon adoption.
The Washington program has been controversial but has survived attempts to repeal it or water it down. The controversies have chiefly focused on the role of growth management hearing boards to interpret the law and the imposition of planning requirements on local governments. Since there is no mechanism for official state review and approval of plans and development regulations (as in Oregon), the boards have, in effect, stepped into that void in deciding challenges to the plans and development regulations and holding local governments accountable for the requirements in the legislation. Because there are three boards rather than one, there may not be consistency in the rulings; the boards, in effect, are making state policy indirectly through their decisions (even though that was not the expressed intent of the statute). Local governments resent the boards because they feel they second-guess local decisions on planning and development.
Moreover, the restrictions on rural development have been problematic in that the statute has not been precise as to what "rural" is. The Washington statutes require the counties, in their local comprehensive plans, to designate areas of rural character, which would include some rural development as well as agriculture and forestry activities. Not surprisingly, agricultural, real estate, and timber interests would like as broad and as flexible definition as possible, with no requirement for density and liberal ability to convert land to rural home sites. In 1997, the Washington state legislature, at the recommendation of a special state land-use study commission, amended the definition of "rural character" as follows:
"Rural character" refers to the patterns of land use and development established by a county in the rural element of its comprehensive plan:
In May 1998, Tennessee enacted a statute intended to create a "comprehensive growth policy for the state" that incorporates the designation of urban growth boundaries for municipalities and planned growth areas for unincorporated areas.64 The statute establishes in each county a coordinating committee consisting of representatives of the county, municipalities, utilities, boards of education, and chamber of commerce. In the alternative, if the population of the largest municipality in the county is at least 60 percent of the county population, the coordinating committee may be the county planning commission and the local planning commission of that municipality. Each committee must develop a growth plan for its county by January 1, 2000, including, with recommendations from the municipalities, urban growth boundaries for each municipality in the county. The proposed growth plan must first undergo at least two public hearings after due notice and does not take effect unless ratified by the county legislative body and by the individual municipalities.
If the county or any municipality rejects the proposed growth plan, it must state its reasons for rejection, and the coordinating committee must reconsider its decision. If a county or municipality declares that there is an impasse in the ratification process, the Secretary of State appoints a three-member dispute resolution panel.65 The panel can impose a growth plan if its recommended solutions are rejected, and the cost of the dispute resolution process can be assessed against a party acting in bad faith or putting forth frivolous objections.66 Judicial review of the urban growth boundary by the county chancery court is available to any landowner or resident of the county, as well as to the county and municipalities, and the review is a de novo (or original) review in which the challenger must show by preponderance that the growth plan is "arbitrary, capricious, illegal, or ... characterized by an abuse of official discretion."67 All such reviews commenced against the same proposed growth plan must be consolidated in a single civil action.
Once a growth plan is ratified, all land-use decisions must be consistent with the plan. A growth plan stays in effect for up to three years, absent a showing of "extraordinary circumstances."68 The plan must indicate urban growth boundaries, planned growth areas, and rural areas. An urban growth boundary must encompass the contiguous territory of a municipality, an area sufficient for 20 years of predicted growth, and territory in which the municipality is better able to provide urban services than other municipalities.69 It must be based on population growth projections, a projection of infrastructure costs, and a land-demand projection. The county can create planned growth areas, which are similar to areas inside urban growth boundaries and are subject to the same requirements, except that planned growth areas must be outside any urban growth boundary and any municipality. Any territory that is not within an urban growth boundary or planned growth area can be designated as a rural area, which is intended to be used for the next 20 years for agriculture, forestry, wildlife preservation, recreation, or other low-density uses.
After a municipality has an urban growth boundary in place, it can annex only territory within that boundary, but the municipality is expressly authorized to amend the urban growth boundary, under the same procedure as the enactment of a growth plan to include the territory that is to be annexed.70 New municipalities can be created only in planned growth areas, and the county must approve the municipal borders and urban growth boundary before any vote on incorporation can be held.71
Counties and municipalities that do not have the growth plans that have been approved by the coordinating committee, certain state grants for housing, infrastructure, tourism, and job training, as well as federal transportation and community development funds are to remain "unavailable" until the plans are approved.72
New Jersey's contribution to statewide land-use planning was the adoption of the State Planning Act in 1986.73 That act created a state planning commission composed of citizens and state agency officials. The commission has the authority to prepare and adopt a state plan. The New Jersey State Development and Redevelopment Plan , adopted in 1992 and currently under revision, is a policy guide for the state. The plan's general strategy is "to achieve all state planning goals by coordinating public and private actions to guide future growth into compact forms of development and redevelopment, located to make the most efficient use of infrastructure systems and to support the maintenance of capacities in other systems."74 State plan goals and strategies include revitalization of cities and towns, conservation of state natural resources and systems, promotion of economic growth, protection of the environment, provision of adequate public facilities and services at reasonable cost, provision of adequate housing at reasonable cost, and preservation and enhancement of areas with historic, cultural, scenic, open space, and recreational value.
The plan contains policies and plan maps that divide the state into a series of planning areas for the purpose of deciding where to encourage growth, redevelopment, and resource preservation. For example, the plan attempts to direct development away from agricultural areas and environmentally sensitive areas, such as the New Jersey Pinelands. In addition, the plan provides a hierarchy of centers (urban centers, towns, regional centers, villages, hamlets) in which different levels of concentrated development should occur. The plan's contents, especially the plan map, were subject to a three-stage, negotiated, nonbinding "cross-acceptance" process among the state planning commission, county planning commissions, and local governments in which the centers and the surrounding planning areas were identified and classified. Through this process, local governments begin to incorporate components of the state plan into their local plans. In turn, the state plan is gradually modified to ensure compatibility with local plans.75
The current (1997) draft revision of the plan contains an extensive discussion of how it is being implemented in the state.76 For example, Gov. Christine Whitman has called upon her cabinet to incorporate the plan's proposals into all state agency programs, policies, and decisions, and to provide her with annual reports on their progress. Whitman requested, and the state legislature approved, $40,000 for each county in New Jersey to participate in the cross-acceptance process. State agencies have been using the state plan in shaping program rules and regulations. For instance, the state department of transportation has incorporated the plan's hierarchy of planning areas into the establishment of roadway access standards that would apply to different parts of New Jersey.
Rhode Island began revamping its planning and land-use laws in the late 1980s. The intention of the reform effort was to provide uniformity and predictability in planning and land-use control among the state's 39 cities and towns, as well as to define the role of the state with respect to reviewing and approving local comprehensive plans that guide development.
A central feature of the Rhode Island law is its requirement that all cities and towns prepare and adopt a comprehensive plan that contains nine elements: goals and policies; land use (with a plan map); housing (including affordable housing); economic development; natural and cultural resources; services and facilities; open space and recreation; circulation; and implementation.77
Under the statute, local governments submit adopted comprehensive plans to the state for review by a planning division in the state department of administration and by other state agencies. State officials check for compliance with the statute and with the State Guide Plan, a collection of state goals and policies that have been formulated by state agencies.
If a plan is turned down, local officials may request a review by the Comprehensive Plan Appeals Board, which was created by statute.78 If the plan is deemed unacceptable (for example, if it conflicts with a state policy), the planning division may step in and prepare a plan, which then goes back to the appeals board. However, the planning division has never found it necessary to use this authority to prepare a plan.
One consequence of the statute is that the approved local plan must be consulted for all state projects and no state agency can construct a project that contravenes a local comprehensive plan unless it first successfully pursues an appeal to a state planning council, also established by statute. The planning council may approve a state project that conflicts with a local plan but only after a public hearing and only after finding that the project satisfies four strict criteria in the state planning act.
Maryland began amending its planning statutes in 1992 and again in 1997. The 1992 amendments79 required cities and counties to adopt comprehensive plans with certain prescribed elements. For example, local governments must address environmentally critical or sensitive areas in their plans. The sensitive areas must include streams and their buffers, 100-year floodplains, habitats of threatened and endangered species, and steep slopes.
These plans also have to address or incorporate a series of state "visions" or policy statements in the plan. One "vision" relates to the preservation of the Chesapeake Bay. Still another calls for local governments in rural areas to direct growth to existing population centers and to protect what it calls "resource areas," although the statute doesn't define what such resource areas are. Despite some ambiguous language in the law in terms of the meaning of "visions" as well as lack of a certification process by the state, local governments in Maryland have begun preparing and adopting plans that meet the statute's objectives. Counties and cities are required to report on their progress each year to a State Economic Growth, Resource Protection, and Planning Commission, which monitors the act's operation and suggests changes to Maryland's governor and legislature.
The most recent development occurred in 1997. At the prompting of its governor, Parris Glendening, Maryland passed a "Smart Growth" act80 aimed at directing new development into "priority funding areas." Under the statute, the state will give priority in funding projects with state money in these growth areas as well as existing municipalities and industrial areas. These priority areas must meet state guidelines for intended use (including a minimum density requirement) and adequacy of plans for sewer and water systems. Existing communities and areas where economic development is desired are eligible. Counties may also designate growth areas for new residential communities. The priority areas include the state's 154 municipalities, land within the Baltimore and Washington Beltways, 31 enterprise zones, and the locally designated growth areas.81
Beginning October 1, 1998, the state is prohibited from funding "growth-related" projects not located in these priority growth areas. State funding is also restricted for projects in communities without sewer systems and in rural villages. The intention is, of course, to channel state monies into areas that are suited for growth and limit development in rural areas by not extending sewers or making transportation improvements that would spur growth. In this way, conversion of rural and agricultural lands to urban uses is slowed or at least actively discouraged through state policy. Local governments and private interests can, of course, spend their own funds outside of these priority growth areas, but they cannot expect state monies for infrastructure.
Other legislation that is part of the "Smart Growth" package is intended to support locally identified development areas. For example, the program facilitates the use of brownfields (abandoned or underutilized industrial sites that are either polluted or perceived to be polluted) through grants, low-interest loans, and limitations on liability in redeveloping those lands. It provides tax credits to businesses creating jobs in a priority funding area. A "Rural Legacy" program also makes state funds available to enable local governments and land trusts to purchase properties, development rights, or permanent easements in order to protect targeted rural greenbelts. The new initiative supplements Maryland's agricultural lands preservation program and open space program.
The 1997 Maryland "Smart Growth" act has attracted a lot of attention in the United States because it is one of the few instances in recent years where a governor has staked his political career on a comprehensive planning approach for his state. Here, it was the governor who pressed the state legislature to enact this package of laws, and it will also be the governor who steers state agencies through the law's implementation.
Transferability to Ohio
Each of these programs has different implications in terms of transferability to and utility for Ohio.
As noted, the Oregon program involves a strong centralized role for the state, both in terms of establishing state goals for land-use planning and ensuring, through the certification of local plans and regulations, compliance with state goals and rules. There are strong state goals in terms of urbanization and compact development, diverse and affordable housing, and farmland preservation, among others.
In Washington, the state role is more indirect; there is no formal approval by the state of local plans. Disputes over whether a local government has complied with statutes are appealed to a growth management hearing board for resolution on a case-by-case basis. The state's planning goals were not developed independently by a commission, as in Oregon, but instead are incorporated directly into the legislation setting up the state's growth management program. Still, the state legislation speaks to many of the same goals and values that the Oregon program addresses.
In contrast to the Oregon and Washington programs, the Tennessee approach eschews statewide goal setting but has some transferability for Ohio in that it manages to blend planning and development issues with annexation, an ongoing controversial topic among Ohio local governments. In Tennessee, the county growth plan requirement provides a framework in which both development and annexation questions can be resolved ahead of actual annexation proposals. It also makes clear that, in the context of the state, urban development is to be supported by urban services, the preferred provider of which is municipal governments.
New Jersey attempts to orchestrate state development patterns through written and mapped policies, not regulation and administrative oversight concerning local planning decisions. The state development and redevelopment plan is implemented through direct action by state agencies through administrative practices, rulemaking, state expenditures, and, indirectly, through the voluntary cross-acceptance process that involves bargaining between the state and its local governments over the contents of local plans. The New Jersey effort is notable for its attempt to formulate a set of cross-cutting strategies that address development, redevelopment, conservation, transportation, land use, and public investment in one document about which there was broad statewide debate. The advantage, of course, is that the public can see how the state intends to integrate and coordinate the activities of various state agencies, while involving local governments, to achieve the kind of environment the state's citizens say they want.
The Rhode Island program is not oriented toward encouraging compact development through an urban growth area requirement (as is the case in Oregon, Washington, and Tennessee) or toward achieving a specific pattern or hierarchy of land use (the case in New Jersey, albeit voluntarily). Here, the state review is aimed at ensuring that: local plans satisfy state statutory standards; written state policies, where they exist, are reflected in local plans; and plans account for potential state infrastructure projects.
In Maryland, local governments are expected to incorporate a series of state "visions" into their plans and to designate the "priority funding areas" where state spending on projects that induce growth will be limited. The state is relying on its public investment policies to persuade local governments and the private sector to implement the state's goals. There is no requirement to designate priority funding areas by counties, but counties that fail to do so then lose out on the commitment of state infrastructure to support growth. In addition, the state is attempting to integrate a variety of state programs so that, while rural areas are protected, urban areas are enhanced.
It should be noted that, in all of these states, the governmental structure is somewhat simpler than Ohio's. This is because none of the states has township forms of government; rather, the chief actors are the state, counties (except in Rhode Island), and municipal corporations.
In large measure, these programs also reflect the influence of an intergovernmental approach. They require various forms of mutual review and adjustment of policies. As urban areas spread out and local government boundaries butt up against each other, there is now a recognition that states and their local governments have, at bottom, a clear commonality of interests in addressing the problems of urban and rural growth and development.
Smart Growth Working Paper