Monday, September 5, 2016

Zoning's Next Century, Part 3: Why the Quiet Revolution Failed, A Series by John R. Nolon

Zoning’s Next Century

Why the Quiet Revolution Failed

John R. Nolon, Distinguished Professor

Elisabeth Haub School of Law, Pace University


New York’s historical failure to wrest land use control from local governments demonstrates why they remain in charge of land use planning and regulation. This may explain, as well, why federal and state efforts to assist localities and guide their policies succeed, while top down mandates so often fail.   This post is taken from forthcoming article on the evolution of land use law in New York and is based on the author’s own experience.[1]

My personal journey with New York’s land use law began over 25 years ago as we searched for strategies to achieve what was then a new concept: sustainable development. In 1993, I founded the Land Use Law Center for Sustainable Development at Pace University School of Law, now called the Elisabeth Haub School of Law. At the request of President Clinton’s Council on Sustainable Development, we began our analysis by assembling an Advisory Committee on Sustainable Development in the Hudson River Valley…. The Council asked us to project current land use trends 50 years forward, to determine whether they were sustainable and, if not, to identify the key obstacles to sustainability and the most effective strategies to remove those obstacles….

            We did several studies, including one on what we called pacelization – the rate at which large parcels of land were being subdivided into smaller parcels for development. Projecting the current rate  forward revealed that the amount of open land in the region would decline from 60% then to around 30% in the year 2045, that there would be a 400% increase in what transportation planners call vehicle hours of delay, and that for every one percent of population added we would urbanize seven percent more land.  [This trend was clearly not sustainable.] …

            The President’s Council had asked us to identify the most formidable obstacle to the sustainable development of the Hudson River Valley and the best strategy to remove that obstacle.  To answer this question, we had to review the history of these matters in New York.  The state’s story involves a tug of war regarding localism, regionalism, and state control of land use decisions.  Every New York governor since the Great Depression has made some statement about the importance of having cogent state policies on land use to guide local decisions with little effect….       

            We reflected on the national experience as well.  Environmental and land use study commissions, courts, and commentators long bemoaned the parochial effect of local land use decisions and their tendency to exclude affordable housing and to shift environmental and economic impacts to nearby communities.  These concerns gave rise to what became known as the “quiet revolution in land use control” which was advocated by a 1971 report of the U.S. Council on Environmental Quality.  The “revolution” envisioned state legislative efforts to adopt growth management legislation, establish regional land use planning agencies, and tether local decisions to state-adopted land use principles or plans. In 1968, the Douglas Commission, appointed by President Johnson, issued its Report on Urban Problems, Building the American City.  The Commission recommended that each state create a state agency for land use planning and prepare state and regional land use plans. [Our search for effective state and local planning in other states was not fruitful.] For a time, New York led the nation in this direction….

            The success of the Adirondack Park Agency [with its regional control of land use planning] and the hortatory language of the Douglas Commission and the Council on Environmental Quality led state planners in New York to think more ambitiously.  In early 1970s, the New York legislature was presented with the Statewide Comprehensive Planning Act, which provided for the creation of state, regional, county, and local plans – all cross certified and consistent.  At the time, this was the nation’s most far-reaching attempt to guide and constrain local land use decision-making.  The perceived threat to local control was clear, and the political reaction was predictable, swift, and definitive.  The bill was withdrawn and the New York Office of Planning Coordination – the agency that proposed it – was voted out of existence by the state legislature….

            Strong regionalism has not prevailed in New York for the same reason it has not prevailed in most states. Former Speaker of the House Thomas P. O’Neill Jr., once quipped that “all politics is local.”  All reform efforts aimed at constraining local control must overcome this political reality.  The danger in advocating top-down, statewide land use solutions is that it identifies local control as the problem to be solved, rather than the base on which to build an intermunicipal process, responsive to regional and state needs.  The challenge for advocates of a regional approach to land use planning and control is to identify effective regional processes that respect the critical role that local governments play in land use decision-making.  To be politically palpable, these solutions must be perceived not as methods of imposing a state or regional body’s will on local governments but as means of communicating effectively about regional and local needs, balancing those interests, and arriving at mutually beneficial decisions over time…..

            This was our experience by the time the President’s Council asked us its provocative question: What is the best strategy for removing the most formidable obstacle to the sustainable development of the Hudson River Valley?  The 250 representatives of various groups interested in land development and conservation who testified at our final hearing on the matter kept reminding us of the political reality of land use: local leaders are the gatekeepers of the system.  In the continuing absence of national or state-mandated solutions, attention should be paid, they said, to strengthening the system at its foundation. 

            Our response to the Council was that, if such significant control was to remain with local governments and if the local decision-making system is driven primarily by local leaders, most of whom are volunteers with little experience in the field, then we would recommend an aggressive program to train these critical participants in the development of plans and regulations for the future of the Hudson River Valley. [This program has demonstrated considerable success in fostering sustainable land use plans and regulations and, even, generating several intermunicipal land use councils. These few successes fall short of creating effective regional or state control.]

            That said, this experiment in New York does suggest a strategic path.  If local power is so resilient, then perhaps embracing local governments and urging them to collaborate with a national, state, and regional strategy that is designed to honor their concerns and is based on their participation would be a quicker route to more a comprehensive, less cacophonous approach to land use control. As Thomas Jefferson said: “I know of no safe depository of the ultimate power of society but the people themselves, and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion by education.”

[1] Zoning’s Centennial (1916-2016) – The Evolution of Land Use Law in New York, forthcoming New York Zoning Law and Practice Report (Sept/Oct 2016).

Previous posts in the Zoning's Next Century are listed below:

Part 1:  An Agenda for the Next Century

Part 2:  Foundations from the 17th Century

| Permalink