Land Use Policy

With new pollution laws on the books, reorganized state and federal agencies in place, and stepped-up enforcement, public interest is shifting to the more intractable local conflicts over land use. In many metropolitan areas, such concerns are taking the form of "growth limits" of one sort or another. Fairfax and Montgomery counties, in the Washington metropolitan area, both passed ordinances in 1973 restricting new development to the capacity of public facilities (sewer lines, etc.). The community of Boca Raton, Florida has set a ceiling on new housing units. Santa Barbara, California and Boulder, Colorado have voted height limits on new buildings.

"There is a new mood in America," states the Report of the Rockefeller Brothers Fund Task Force on Land Use and Urban Growth, which is questioning the pace and direction of continued urban development patterns. It represents a noticeable, and in some respects dramatic, shift in public attitudes which heretofore embraced new development with the almost universal attitude of "the more growth, the better." The Fall 1973 issue of Daedalus—devoted to "no growth" evaluation generally—also contains a discussion of this local dimension and judgments as to the merits of the growth-limitation viewpoint.

An increasing number of new bills to control land use are being debated in state legislatures. In some states, such as Maryland last spring, strong opposition from local governments and developers meant defeat. On the West Coast, after a number of unsuccessful attempts in the legislature to enact some form of coastal zone controls, California voters successfully launched a petition for referendum, then, in December 1972, voted in a new law to subject virtually all new coastal development within a thousand yards of the shore to a state permit system. After enacting a bill to control development in flood plains and spurred on by concerns over the possibilities of a superport in or near Delaware Bay, the State of New Jersey passed a bill in 1973 providing direct state controls over coastal zone development. Oregon also enacted a wide-ranging law giving the state review powers over major developments within the state.

The federal government, after initially refusing to request an appropriation, agreed to provide funding under a coastal zone management act passed by the preceding Congress. The act provides federal assistance to coastal states for control of development within their coastal zones. In July 1973, the Senate passed a more comprehensive land planning bill, which combines major elements of bills proposed by the Administration and by Senator Jackson. The legislation would provide grants to encourage state control over major types of development and land subdivision activities within their borders, as well as the protection of areas of critical environmental concern. The Senate bill encourages implementation by local governments, but would require states to have certain minimum review powers over local actions. The Senate narrowly defeated an amendment, originally submitted by the Administration and offered on the floor by Senator Jackson, to impose sanctions on noncomplying states in the form of a loss of highway, airport, and recreational assistance funds. The House Interior and Insular Affairs Committee is putting the final touches on a similar bill of its own.

Both in Congress and in state legislatures, the debate on land use legislation makes it clear that the major land use conflicts, at least at the present time, involve which levels of government should exercise controls over which kinds of development and land areas. The proposed federal legislation identifies in a general way which kinds of development activities should come under state authority, while it leaves wide flexibility in how the states sort out the degree of local government involvement. As expected, the various new state laws are fashioned to fit the political characteristics of each state. In Florida, local governments will implement the state's Land and Water Management Act, with state review under certain circumstances. California's Coastal Protection Act is administered by state-established regional commissions, with appeals taken to a state commission (in somewhat the same manner as Vermont's Environmental Control Law), but New Jersey will control coastal development directly at the state level.

Two divergent trends are now appearing. In the first, represented by the land use policy legislation in Congress and the increasing number of new state land use laws, the development prerogatives of local government are being altered by the superimposition of additional state review powers over decisions having regional impacts. This shift of authority indicates both a concern about the traditional sympathy of local governments toward any tax-producing development, and an attempt to deal with the institutional confusion brought about by the proliferation of many small local units of government attempting incrementally to cope with metropolitan growth. The second trend, previously mentioned, is that a growing number of local governments are showing outright hostility to continued growth. Yet this latter trend may increase pressures for state involvement, because of the potential restrictions on housing opportunities in the suburbs for lower-income and minority groups, which result from the numerous locally imposed sewer moratoriums, building permit bans, and the like. Nevertheless, this recent upsurge of local resistance to development indicates how quickly historical notions of unlimited growth are coming to be questioned by citizens in many diverse places around the country.

As institutional shifts in the regulatory controls over land use continue to occur, a number of states are also beginning to address the land use implications of tax policy. As an example, various "preferential" tax assessment laws are continually being adopted in an effort to slow down the pace of sub-urbanization of farmland. However, in most states with such laws, there has been little effort to coordinate the preferential assessments with explicit open-space plans, and in many cases speculators have been able to take advantage of the reduced property tax assessments to acquire and hold land intended for later urbanization. Thus, results have been mixed. In one of the bolder recent initiatives to discourage speculative land sales, particularly in second-home lots, Vermont adopted a measure which imposed a graduated capital gains tax (dependent on percentage of gain and length of holding time) on land sales.

The federal government has also introduced legislation (the Environmental Protection Tax Act) to discourage development of coastal wetlands, encourage rehabilitation of historic and older buildings, and stimulate charitable donations in private land transactions—all by various amendments to the Internal Revenue Code. The proposals would subject any new developments in the coastal wetlands (other than those federally certified as ecologically acceptable) to recapture of depreciation deductions (which to begin with may be only at straight-line rates) at ordinary-income, rather than capital-gains rates. Moreover, there would be mandatory capitalization of carrying charges (interest and taxes) in excess of current net operating income, as well as of land-clearing and similar expenses by farmers.

The same depreciation provision would apply to new construction at historic building sites. There is also a penalty for demolition of historic buildings: if such action is taken, neither the demolition costs nor the remaining undepreciated cost of the demolished structures may be deducted as current expenses, but for tax purposes must be added to the cost of the cleared land. Conversely, there are positive preservation incentives, including rapid including rapid (five-year) amortization of rehabilitation expenses. Both for historical structures and for land-preservation purposes, the definition of tax-deductible charitable donations is broadened to include a variety of remainder interests and easements with respect to the donor's home or land, rather than being confined, as it is now to open-space easements. However, these proposals still await the scheduling of hearings by the House Ways and Means Committee.

Expressions and implementations of environmental concern continue to be seen by the "have nots" as an imposition, if not an outright plot, by the "haves." This is true at local levels, at regional levels within the United States, and throughout the world. So far as many inner-city residents are concerned, suburbanites have often seemed to exclude them from housing and outlying employment opportunities by large-lot zoning, limitations on high-rise construction, and requirements for minimum improvement standards. Indeed, many newly organized suburban jurisdictions have had just this objective mind, although seeing it more broadly as preserving the "good life” which more often than not through they had themselves achieved their, or their families', own opportunities for upward mobility. With exclusionary practices for such reasons rapidly becoming unfashionable, if not illegal, the ecological, growth-limitation imperative has suddenly presented itself in a new light.

Within the underdeveloped cranies and regions of the United States, the situation is almost the reverse. Though some or most local residents may oppose industrial, recreational, and other forms of amenity-defiling development, more often the bulk of the opposition to dedevelopment (or pressure for development) comes from the outsider who wishes to retain the area's more pristine environmental qualities for his vicarious, or occasional actual, enjoyment. In contrast, the local population would rather make do with a little more personal income. The cleavage is a socioeconomic, more than a geographic, one for, as in the city-suburb conflict, the interests of the less well-to-do are generally on the side of development, and these less well-to-do may include not only local residents but city-bound people of lesser means seeking improved recreational or residential amenities.

Internationally, distrust that seemed abated through the discussions at the 1972 Stockholm Conference persists. Preoccupation of the poor countries with the bare necessities of food and fiber (even shelter is frequently a luxury) has precedence over concern about waste disposal and environmental management except where there are manifest utilities in conservation. The UN environmental program is going through its formative period and striving not to be excessively diverted toward development projects pure and simple. With the less developed countries holding a clear majority in the Governing Council, this may not be easy. The receptiveness of the council to the initial spending proposal, to, be discussed in the spring of 1974, on environmental projects such as monitoring of various environmental factors around the globe, will illuminate the path ahead.

In an odd way, the feeling of ecological commitment that has been creeping so rapidly over the "haves" of the world has on balance tended to favor the "have-nots." For reasons both rational and irrational, it is the "have-nots" whose populations have been most rapidly increasing, while those that have "made it" have reinforced their self-interest reasons for demographic limitation with a new-found sense of duty to the future. Those segments of world society with the greatest measure of command over resources and technology are accelerating the rate at which they relinquish their relative participation in world affairs and possibly decelerating, in the process, the rate of growth of the world's ability to deal with its problems.

A related aspect of the burgeoning concern with the limits of growth is the conviction that sacrifices are a necessary obligation of the present generation to the future. In the process, there has been a plummeting of the time rate of discount, to the point that a "bird in hand" is deemed to have little more value than avian fruit of the late 21st century. If, indeed, as many see it, exponential growth is not much longer tenable and the potentials for innovation and discovery are close to their asymptotes, it must follow that conservation and denial today are the only means of leaving a heritage for the future. One must at least wonder, however, whether our heirs may not discount what we pass on to them far more sharply than we today are ready to discount it for them, and whether today's self-denial may not therefore have been partly in vain. History tells us that the forebears of each generation have rarely closely anticipated the succeeding generation's needs, let alone its values.