Excerpted from an early draft of the forthcoming RFF study, Land Use and the States, by Robert G. Healy.
For many decades, controls over the use of land have been exercised at the local level—or not at all. Very recently, however, a number of states, including Vermont, California, Hawaii, Delaware, Maine, Oregon, and Florida, have passed innovative legislation giving the state government a direct role in approving important changes in land use. The Congress has been considering legislation to encourage these state efforts and is at the same time trying to delineate the appropriate role, if any, of the national government in land use decisions. Why has debate over land use controls left the specialized realm of city planners and zoning lawyers and become a significant political issue? Why is the time now ripe for land use planning?
For one thing, as the public has become more knowledgeable about the workings of ecological systems, it has learned that changes in land use can have profound effects on the environment, and that these effects are not limited to the parcel of private property whose use has changed. As the tributary areas of creeks and rivers become paved over for urban development, for example, the slow seepage of storm runoff through the soil becomes replaced by the rush of water off asphalt, carrying with it oil, lead, animal wastes, and other pollutants. As shopping centers, factories, and housing tracts are built on the urban fringe, the traffic they generate begins to foul the air. In the economist's jargon, the public has become more sophisticated about the negative external effects, or "negative externalities," that some land uses can create.
But there is another, greater, impetus to the public's concern. The frantic pace of land development in the past two decades has caused the destruction of many amenities that people have long enjoyed and taken for granted. The Sunday drive into the countryside has become a battle to escape the ever-expanding limits of the suburbs. The character and uniqueness of neighborhoods and communities has been changed by high-density development. Rows of high-rise condominiums have sprung up along the beaches, and recreational developments dot the mountainsides. Wildlife has retreated from the advance of man and his noisy artifacts. Even the deserts and the swamps have not been spared, as they sprout the little red flags of the subdividers.
Many of the things that the public enjoyed—the scenic vista, the undeveloped roadside, the open farmlands—were part of some landowner's property rights. The public's "right" to them could be revoked quite legally at the landowner's pleasure. As population expanded and the demand for homes, stores, factories, and recreation areas rose, the landowners found it profitable to exercise property rights they had long held dormant.
Citizens typically rely on local government to assert the "public" interest in regulating changes in the use of private real property. Around the nation, the public has been disappointed. Local governments found the tax revenues from a new shopping center or a high rise too attractive to be ignored. Funds for public purchase of open space were often inadequate to protect even areas of exceptional beauty. Zoning maps, many prepared during a period when economic development was seen as an overriding duty of local government, often allowed development densities far in excess of current use. In many rural places, there were no land use regulations at all.
Moreover, in addition to the well-publicized cases of corruption and venality, even the most honest and well-informed local governments faced situations in which the interest of the local community and the interest of the society as a whole were not the same. A shopping center or a power plant can mean a healthy addition to a community's tax base, but the environmental effects (not the taxes) are shared by the entire region. The increasing mobility of the population has made the use of land in one locality the concern of a wider and wider segment of the population.
There is a pervasive feeling that local control of land use, which in practice means local zoning and subdivision regulations, has been a failure.
However, it is important to separate the failure of specific local controls from the shortcomings of the concept of "local control." If local zoning has failed, the fault may lie with the tool rather than with the level of government that wields it. Given new policy instruments, new property tax systems, and tough conflict-of-interest laws, and prodded by an environmentally aware citizenry, local governments can go far in improving the quality of their land use.
We assume that local control of land use is, other things being equal, the most desirable arrangement. In judging the merits of most land use changes, local authorities are not only better informed about the facts of the situation, but are also (at least ideally) more responsive to the interests affected. When higher levels of government deal with such problems, they typically must create layers of bureaucracy simply to channel the appropriate information to decision makers. The decision makers, moreover, are responsible to a constituency which is probably far larger than the group of citizens affected by most land use decisions. Thus by virtue of not only tradition, but efficiency and political responsiveness, there is a strong case for local control of land use.
However, there are a surprising number of situations in which even the most carefully designed and conscientiously administered local program will fail to take into account the interests of some portion of the public significantly affected by the outcome of a given land use change. We might separate those cases in which we suspect state intervention is warranted into the following categories: (1) problems that spill across the boundaries of legal jurisdictions; (2) problems arising when local interests diverge from the interests of a broader public; (3) problems arising on lands not subject to effective local control; and (4) problems allied with the implementation of state policies or the carrying out of state investments.
Interjurisdictional Spillovers
There are some 3,000 county governments in the United States, along with 18,000 municipalities and 17,000 townships. It has been estimated that at least 14,000 of these jurisdictions exercise some form of land use control.
The effects of land use changes by these jurisdictions can spill over boundaries in ways as obvious as a smoke-stack's plume or as subtle as a flow of retail dollars.
Take, for example, the location of an oil refinery on the New England coast, a possibility that has been the source of several land use controversies and a major impetus to Maine's 1970 Site Approval Law. If built in the small town of Machiasport, Maine, a $150 to $300 million refinery would be assessed at $113 to $225 million–75 to 150 times the town's present assessed valuation. Under present state law, the property taxes generated would not be shared with surrounding towns, even though these latter would have to house substantial numbers of new workers and would have to provide them with schools, roads, utilities, and other public services.
It would be foolish to assert that localities inevitably pursue their self-interest without regard to the effects of their decisions on their geographic neighbors. Informal arrangements between localities, personal and political ties transcending local boundaries, and simple municipal self-restraint tend to prevent the worst abuses of jurisdictional fragmentations. But in the absence of some overall mechanism for geographically allocating the costs and benefits of development, the spillovers can be great.
The Clash of Interests
In many cases citizens of one jurisdiction are concerned about land use changes in other localities, even when there are no spillovers. A classic case is the preservation of wilderness and other remote natural areas. It is almost a certainty that most of those who support wilderness legislation or who work to protect wildlife from habitat destruction will never have the opportunity to personally observe the object of their labors. But the vicarious pleasure associated with the knowledge that such areas exist is a factor that cannot be disregarded.
If large numbers of people are concerned about the quality of the environment in remote and little-visited areas, a far greater number feel a stake in communities they visit on their vacations, places they enjoy on weekends, places they drive through daily as they go about their business. Although they have no standing as citizens of these various localities, members of this wider public can have a strong interest in the land use changes that occur there.
Even though a given locality may have effective land use controls, the interests of its citizenry may be different from those of the noncitizens who feel a stake in its land. Sometimes, values differ. A beach resort's town fathers may consider Miami Beach an ideal to emulate rather than a mistake to avoid. More frequently, however, the divergence of interests occurs because the costs and benefits from development are so distributed that the local people (or at least important local sub-groups) receive economic benefits from land use changes that offset the decline in environmental quality they experience.
No Man's Land
Although most urban areas have some form of land use regulations, large parts of the land area outside cities are essentially unregulated. In North Carolina only 208 of the state's 430 municipalities have zoning ordinances and 140 regulate subdivisions. Of the 100 counties, 6 have countywide zoning and exactly 23 have countywide subdivision ordinances. In New York's Catskill Mountains, which face a second home development boom, only 40 percent of the 161 cities, towns, and villages in the six-county region reported using either subdivision regulations or zoning.
In many cases local opinion holds 'that the rate of development is low enough relative to the quantity of land available to make controls unnecessary. In the absence of demonstrable spillovers from one piece of property to another, the tradition that the landowner should have free and unrestricted use of his property remains strong. If outsiders perceive land use problems that local people choose to ignore, the case becomes another instance of the divergence of interests.
In other cases, however, the lack of land controls is due to the general small size, lack of resources, and lack of expertise of local government. In Vermont, for example, some local governments have jurisdiction over only a few hundred persons. Not only do they have no planning staff, often there is not a single full-time town employee. It is rural areas such as these that are frequently confronted with plans for huge recreational developments, with complex environmental and social effects.
State Investments and Nonland Policies
Even if we assume that state governments have delegated all of their police power over land use to local governments, various policies and practices of the state are highly important in promoting or preventing local land use changes. Perhaps the most obvious of these is state investment in the highway network and water or sewer facilities. The location of state facilities, such as hospitals, office buildings, prisons and, especially, universities, can be important in determining local growth rates. Many states also have programs for attracting private industry through tax concessions or industrial development bonds. Although the microlocation of these industries within the state is usually not a matter of state policy, the type of industry attracted and the rate of industrial job growth can themselves have different effects on different types of localities.
State licensing of power-generating and transmission facilities and state environmental policies can influence local land use, even if the state does not now use this power as part of a conscious growth policy. Public health standards promulgated by the state determine the areas where septic tanks will be permitted, and the density of building allowed there. Land sales disclosure laws can make the state attractive or unattractive to "sagebrush subdividers."
State tax policies have important indirect effects on local land use changes. The percentage contribution of the state to financing local schools and welfare determines the extent of local reliance on property taxes, and hence the degree of local fiscal interest in land use. In more than half the states, there are programs giving special preference in assessment to particular land uses, such as agriculture and forestry.
In addition to their own activities and investments, the states have some power over the distribution of federal grants within their borders, both through individual categorical programs and through review procedures.
With this great variety of state actions impinging on the growth patterns of regional and local subareas, local growth is neither completely the result of market forces nor completely under the control of local government. Decisions made by the state, whether guided by deliberate land use policy or not, significantly affect local land use changes. Although local government has several tools with which to deal with the effects of these changes, here again there are many situations in which it is easier to deal with the state-level causes of growth than to try to mitigate its local-level effects.
Thus the potential for state involvement in land use decisions, even after local controls are strengthened and rationalized, is considerable. Many states have already taken the initiative.
At first the movement was aptly called "a quiet revolution." Recently, however, its progress has slowed, as public opinion showed increased appreciation of land use control as more than just another kind of environmental protection.
"Land use" is not a single problem, to be solved by a single decision or a single piece of legislation. It is a developing chain of decisions that must involve all the actors in the land development process—landowners, developers, consumers, and all levels of government. The states, which bear the responsibility of protecting statewide interests in this process, had traditionally failed to do so. Now a number of states have made a bold break with past practice. It is hoped that others will follow.
A version of this article appeared in print in the October 1975 issue of Resources magazine.
