Land Use Control

It had been widely expected that 1974 would see final passage of a national land use law, climaxing four years of congressional activity and a steadily building interest at the state and local level. But last June found the federal Land Use Planning Act, already passed by the Senate, going down to a narrow (204-211) defeat in the House. The issue was thus passed on to the 94th Congress, which will consider it anew.

The 1974 bill would have given the states $100 million a year to support comprehensive land use planning, encouraging a trend that many states had already followed on their own. Unlike the longstanding Section 701 "comprehensive planning" grants under the Housing Act, these new grants would have been available only to states that took an active role in regulating land-use change in critical environmental areas, very large developments and subdivisions, key growth-inducing facilities, and developments of "regional or national benefit." A state might step in directly to control these areas, as California now does with its coastline, or it could impose development standards to be administered by local governments, as is done for Florida's "areas of critical state concern."

What Congress did do in 1974 was to pass amendments to the Section 701 provisions to bring them closer in some respects to those contemplated in the land-use bill. Specifically, the section was reworded to encourage a more extensive involvement of state governments in the planning process and, among other provisions, to require that planning include "a land-use element which shall include studies, criteria, standards, and implementing procedures necessary for effectively guiding and controlling major decisions as to where growth shall take place within the recipient's boundaries. . . ." Section 701 planning assistance has gradually been broadened over the years to cover rural as well as urban areas and the planning efforts of regional bodies (interstate as well as intrastate) in addition to political subdivisions. All fifty states, plus various other areas, benefit from the grants provided. The amendments were passed in late August, and by mid-December, HUD had issued "interim regulations" to implement them. According to some critics the quick action was an effort to hold onto the land-use planning ball instead of relinquishing it to the Interior Department as has been contemplated in Land Use Planning bills. A possible hitch to such a purpose is that, although the authorized funds for Section 701 planning somewhat exceed those so far contemplated in the Land Use Planning legislation, the Administration has proposed a 50 percent cut in the actual level of expenditures.

State land-use legislation also faced mounting opposition. The "quiet revolution" that had begun in the early 1960s was giving way, not to indifference, but to increased appreciation that land-use control entails more widely felt complications than most other kinds of environmental enhancement or protection. Questions of economic impact, compensation, individual freedom, and local autonomy were raised again and again by opponents, with telling effect.

In some cases, debate was followed by the flat rejection of new controls. Vermont, a pioneer in state land-use law, turned down a proposed land-use plan that would have set density guidelines for most of the state. Florida's legislature rejected a whole package of land-use bills, passing only a vague and toothless resolution calling for suiting its future growth to the land's carrying capacity. New state land-use laws also failed in Michigan, Iowa, and Idaho.

On the other hand, the number of proposals for new state controls was higher than ever. The defeat of the federal bill had relatively little impact on this continuing interest, most of which had its origin in state-level problems rather than in the prospect of new federal money. A survey found that in the previous year forty-eight states had considered, initiated a study of, or enacted some kind of state land-use act. Attempts to weaken existing laws were beaten back in Florida and Delaware, while new initiatives were taken in Colorado, North Carolina, Utah, Maine, and Maryland. New programs tended to emphasize state participation in local and regional planning rather than the more centralized state programs of the "quiet revolution" years.

In Massachusetts, a joint state-local commission was formed to set land policy for Martha's Vineyard, whose growing pains have caught national attention. Connecticut's wetlands protection law came fully into effect. Louisiana legislators appeared ready to reconsider an earlier rejection of state coastal zone management, while Vermont's governor was urging his legislature to take another look at enactment of new state land-use controls despite its reservations as to constitutional issues.

California's powerful coastal commissions issued their 5,000th permit in two years and were making progress on their long-term plan for the coastline's future. In its most controversial decision to date, the state commission turned down a proposal for a nuclear power plant on the coast north of San Diego, then reversed itself two months later. Environmentalists charged that the commission had sold out under political pressure; the commission maintained that it had won new environmental concessions that would make the plant acceptable.

Previously mandated federal programs affecting land use began to gear up. The first grants ($9 million worth) were made under the 1972 Coastal Zone Management Law, and a bill was passed raising authorization to $12 million for the current fiscal year. The Bureau of Land Management, administrator of most federal lands, issued regulations in April regarding the use of off-the-road vehicles, but kept most public land in an "open-use" category pending further classification under a multiple-use planning process scheduled for completion by the end of 1979. Emergency regulations which had been issued in 1973 to govern the use of motorcycles and dune buggies in the California desert were challenged in Los Angeles Federal District Court in January by the Environmental Defense Fund and others. The year ended without the case's having come to trial. Congress made it plain, by cutting off FY 1975 funds, that it wanted no immediate application of proposed parking restrictions, and, in a complementary move, EPA voluntarily suspended its indirect source regulations through June 1975.

A celebrated member of the local "growth control" movement found its program crippled by an adverse court decision. Petaluma (Calif.), which had limited the number of building permits issued annually to 500, lost a court challenge by home builder's group. The federal court's opinion was particularly worrisome to some growth control advocates, for it held that the city's limits on growth were an infringement of the constitutional right to travel. Petaluma is appealing.

The Petaluma decision may cause more communities concerned about their growth to choose the already popular "Ramapo Plan," which stages the volume of new building according to the availability of public facilities. Another growth control pioneer, Fairfax County (Va.), continued its efforts to apply this approach, along with an extensive zoning program. Its temporary moratorium on new site plan filings was overturned by a local court, but scores of other local governments around the nation continued to go the moratorium/rezoning route. For much of the year, for example, a 300-square-mile area between Miami and the Everglades was under a building ban while the county struggled to prepare a new master plan.

Meanwhile, tight money was giving most communities a temporary, and not always welcome, respite from the rapid growth of the preceding years. By the close of 1974, the level of housing starts was at its lowest point in nearly two decades, with development sluggish even in such normally booming Metropolitan areas as south Florida and Washington, D.C.

But despite much talk about the long-term effects of a falling birthrate, there is little doubt that the stage is set for yet another round of growth. The postwar "baby boom" generation is coming of age, forming families, and demanding new dwellings. Pensioners, more numerous and more mobile than ever, will continue to crowd places with warm climates and low living costs. Perhaps most dramatic, once the recession is over, there very likely will be a renewed increase in second homes, a luxury now enjoyed by only 5 percent of American families.

Another issue of long-range significance that became more apparent in 1974 is the question: when does antidevelopment regulation go so far as to require compensation to the landowner? Both the Rockefeller Brothers Fund Task Force on Laud Use and Urban Growth and the CEQ study, The Taking Issue, have argued that governments may be unnecessarily fearful that the courts will strike down their regulations. Nevertheless, land-use professionals have started to give more thought to the precise effect of present and proposed policies on both public and individual gain and loss. One approach is to identify, and perhaps even to quantify, the social values that land produces in its natural state. Coastal wetlands, for example, may be as valuable for flood prevention and as nurseries for marine life as they are for development. If so, the public may argue that society would be measurably enough harmed by development to justify the private losses entailed by development controls.

An approach to an equitable adjustment of such conflicting values involves "transferable development rights." Under such a scheme, owners of land best suited for preservation would be compensated with transferable rights entitling them to develop some other area more densely than would otherwise have been allowed. For example, owners of a wetland might be given a special zoning bonus in a proposed new-town development area. They could then sell these rights to owners of the land in the development district. A pioneering study of the possibilities of this approach, both for natural-area protection and for historic preservation, was published during the year (John Costonis, Space Adrift, University of Illinois Press), and actual applications were under study in Vermont, Chicago, New Jersey, and elsewhere. Other policy analysts were looking at ways in which society might compensate those whose land values were reduced by public action, by taxing those who gain by it.

In short, despite the defeat of the federal land-use bill, 1974 was a year not of regression in land-use planning, but of re-examination and a more deliberate style of advance.