Local Land Use Controls That Achieve Smart Growth

John R. Nolon

[Editors' Note: This Article is included as a chapter in a new monograph on land use, smart growth, and sprawl authored by Professor Nolon and published by the Environmental Law Institute. The 11-chapter book places land use practice into the national perspective of sprawl and smart growth, by fully describing one of the nation's most complete state land use regimes-the New York system. The New York system is typical of the approaches and techniques used in most of the other fifty states. The book covers a period up to July of 2001, including commentary on Palazzollo v. Rhode Island.

The Monograph is currently available, and may be ordered by calling 1-800-433-5120 or 202-939-3844. For additional information, visit our website at www.eli.org or see the ad on the back cover of this issue.]

The author is Charles A. Frueauff Professor of Law, Pace University School of Law, Director of the School's Land Use Law Center and Joint Center for Land Use Studies, and an Adjunct Professor at the Yale Graduate School of Forestry and Environmental Studies. This Article is adapted from a new book published by the Environmental Law Institute, Well Grounded: Using Local Land Use Authority to Achieve Smart Growth. The book explores the growing interest in land use law and practice that has been stimulated by the public's increasing disfavor with urban sprawl and its support of smart growth initiatives.

[31 ELR 11025]

Smart Growth admits of no clear definition. It provides a popular label for a growth strategy that addresses current concerns about traffic congestion, disappearing open space, nonpoint source pollution, the high cost of housing, increasing local property taxes, longer commutes, and the diminishing quality of community life. To accomplish smart growth, government must take two related actions. The first is the designation of discrete geographical areas into which private market growth pressures are directed. The second is the designation of other areas for recreation, conservation, and environmental protection. This reduces a complicated subject to its two most essential features and leaves much for further discussion. This focus, however, permits a precise description of how smart growth can be implemented, if a consensus for it is developed.

The purpose of this Article is to illustrate the practical side of smart growth—the tools and techniques used by local governments in New York State to carry out smart growth strategies and, by example, to illustrate how communities in other states can do the same. New York is a particularly appropriate jurisdiction to use for such an exercise since its municipalities have been delegated ample authority to adopt creative land use strategies.¹ The Article first discusses how local governments can encourage private sector development to occur in appropriate places. It then turns to an examination of how they can ensure the conservation of critical landscapes. If both are done effectively, smart growthobjectives are realized, at least at the local level.²

Designating Growth Districts

What is accomplished by directing development to growth areas? The aspiration is to create a sense of community, promote economically viable development, ensure the ease of movement and safety of residents, and preserve open space, natural resources, and sustainable habitats. In 1979, Portland, to comply with Oregon's innovative growth management law, imposed a growth boundary encompassing the city and 23 surrounding towns.³ Fifteen miles from city hall, outside the bounded growth area, is the Willamette River Valley, where growth is limited to small-scale development consistent with the predominately agricultural use of the land.⁴ Maryland's novel smart growth spending law directs state infrastructure improvements into settled communities and "priority funding areas," which are growth areas designated by county governments.⁵ A statewide coalition supporting smart growth in New York has recently released a set of recommendations that encourage the state to place its infrastructure investments in areas that local governments have targeted for growth.⁶

[31 ELR 11026]

Concentrating development in designated growth areas, bounded in some specific way, is a necessary factor in the smart growth equation. Bounded growth, however, is not a novel concept. Local governments have traditionally drawn blueprints for growth in the design of their zoning codes. Zoning's primary characteristic is the creation of hard-edged districts that separate land uses into residential, commercial, and industrial zones. Traditional zoning districts separate land uses to advance a number of public purposes. The architects of zoning thought that this approach to community planning protected children in residential districts from commercial and industrial traffic, for example, and protected residential property values by placing noxious and inconsistent uses in distant locations.⁷

Perhaps we are moving into an era of "smarter growth," where public policy encourages more compact and integrated land uses to accomplish a number of contemporary public interests, such as the reduction of car travel and air pollution and the rate of consumption of farmland, natural resources, and environmentally sensitive areas. Smart growth advocates see the designation of areas for more compact, mixed-use development as a present imperative, a necessary change in the zoning blueprint needed to address the concerns addressed by the Oregon and Maryland growth management initiatives.

Nationally, there has been much debate as to which level of government should be responsible for drawing the boundaries of designated growth districts. In Oregon, it is the state.⁸ In Maryland, it is the county.⁹ In New York and most other states, it is the municipality.¹⁰ Drafts of recently proposed smart growth bills in New York, many ideas circulated by statewide advocates, and GOV. George E. Pataki's (R-N.Y.) recent Executive Order 2000-102 all call for local governments to designate growth areas for smart growth planning purposes. Under Governor Pataki's Executive Order, a Quality Communities Interagency Task Force is to "make recommendations to strengthen the capacity of local governments to develop and implement land use planning and community development strategies through a voluntary program."¹¹ The bipartisan Hoyt-Rath Bill declared it to be the policy of the state of New York to "encourage more compact development" and "investment in infrastructure in locally-designated growth areas."¹² There are no current proposals in New York, or in most other states, seriously suggesting that growth areas should be designated by county, regional, or state agencies.

Authority to Designate Growth Areas

If local governments are to design the basic blueprint for smart growth, how should they proceed? New York State law provides numerous planning tools for municipalities to use in designating growth and conservation areas. The principal among these, of course, is the comprehensive plan, without which, the New York Court of Appeals has said, there can be no rational allocation of land use.¹³ State statutes suggest that local comprehensive plans include a statement of goals and objectives regarding the community's physical development and describe the specific actions to be taken to provide for the long-range growth and development of the locality.¹⁴

Comprehensive plans can, in fact, be quite detailed, incorporating maps, graphs, and studies that can precisely locate designated growth areas and spell out the techniques to be used to encourage development in those areas. This authority is highly elastic, and can be stretched to fit all development contexts, from urban and suburban to rural, where communities wish to control growth. Growth control measures, including goals, objectives, and techniques contained in the comprehensive plan, were validated nearly 30 years ago by the New York Court of Appeals in Golden v. Ramapo.¹⁵

Akin to the authority that local governments have to adopt comprehensive plans is the power to formulate a Local Waterfront Revitalization Plan (LWRP) when the community is located in the state's extensive coastal areas.¹⁶ Under the Waterfront Revitalization and Coastal Resources Act of 1981, a local government may adopt an LWRP covering part or all of the community and devoted to protecting water-related assets while providing for future land uses in the coastal zone affected by the plan.¹⁷ Zoning and other land use regulations are the tools of choice for implementing the LWRPs. Under these plans, harbor development districts, riverfront revitalization areas, and waterfront redevelopment zones have been established—all of which may be designated growth areas. Most other coastal and Great Lakes states have comparable regimes adopted in response to the federal Coastal Zone Management Act.¹⁸

New York law permits local governments to divide the community into zoning districts and to regulate the density of population, the use of land, and the size, shape, and location of buildings within each district.¹⁹ Although this authority [31 ELR 11027] has been used in some communities to impose a grid type of development pattern on the land, with residences separated from retail and commercial areas, zoning itself may be used to designate a variety of growth districts to carry out a local smart growth agenda. Municipalities have designated large parcels of land for mixed-use zones, planned unit development districts, planned residential development areas, floating zones, and conservation areas.

Directing Growth to Designated Growth Areas

Once municipal growth areas have been designated, local governments have a long list of techniques they may chose from to direct development into such areas. One of these is to lower the density of development and to otherwise restrict development permitted outside growth areas. Facilitating development within these areas can be accomplished by using the following devices:

[] Higher Density Districts. In a designated growth zoning district, the density of development can be increased as a matter of right. Municipalities can use their traditional zoning authority to create a mixed-use neighborhood with bulk, area, and use provisions that create the type of compact development pattern envisioned by the smart growth concept. In taking this approach, smart growth advocates argue, the locality needs to create a sufficient density of mixed-use development to support the transportation and transit services needed to increase pedestrian traffic and reduce car travel.

[] Bulk and Area Requirements. A designated growth zoning district can contain bulk, area, and parking provisions that encourage types of development that support smart growth principles. By establishing setback lines that require buildings to be brought up to the sidewalk and by requiring parking and garages in the rear, pedestrian use of streets can be encouraged and an attractive neighborhood design created. Access to residential units and offices can be provided through alleys on which garages or parking spaces are located. The number of parking spaces required can be fewer if real prospects of transit services exist. Lot sizes can be reduced and zero lot line requirements can be introduced to create higher residential and mixed-use densities. Design amenities such as front porches and traditional architectural styles can be included in the zoning provisions. Attention to the quality of the design of buildings abutting streets can encourage pedestrian use, which is important in encouraging the use of transit facilities. In some parts of these designed zoning districts, narrower streets can be specified to discourage traffic and ease pedestrian use.

[] Incentive Zoning. Significant waivers of zoning requirements can be offered to developers, including increasing the density of development allowed, as a method of directing large-scale development into designated growth areas.²⁰ Land developers can be encouraged to provide public amenities such as transportation, parks, affordable housing, social service centers, or other infrastructure in exchange for the waivers.²¹ In this way, some of the services needed in designated growth areas can be provided by private developers in exchange for the increased density desired in the area.

[] Special Permits. Large-scale developments providing for mixed uses may be approved by special permits issued by a planning board or other administrative body. This practice has been followed for decades by municipalities as a method of combining land uses in designated "planned unit" or "planned residential" zoning districts.²²

[] Floating Zones. Large-scale developments can be permitted by amending the zoning code to provide for a special use zone, such as a mixed-use development district, that can be affixed to a large area upon the application of all or a majority of the landowners.²³ That application, if successful, results in the amendment of the zoning map to redistrict the subject parcels and permit the new use.²⁴

[] Generic Environmental Impact Statements (EIS). When any of these techniques is used to create a designated growth area, a generic EIS can be prepared that identifies negative environmental impacts and provides for their mitigation.²⁵ When this happens, it is possible that developers of individual projects will not be required to prepare lengthy and costly environmental impact studies. This alone can provide a powerful incentive for developers to concentrate their projects in designated development areas.

[31 ELR 11028]

[] Transfer of Development Rights. State law allows New York municipalities to establish transfer of development rights programs that concentrate development in receiving districts and provide for the transfer of development rights from sending districts.²⁶ In smart growth terms, the receiving district is the designated growth area and the sending area is a conservation or natural resource protection area.

[] Intermunicipal Agreements. In New York, local governments have been given liberal legal authority to cooperate in the planning and zoning field.²⁷ Through intermunicipal agreements, they can designate shared or interlocking growth districts that create real market opportunities and a complementary range of housing types, retail services, office buildings, and needed amenities. This is a particularly important technique to consider when several communities share a transportation corridor.

Techniques for Protecting the Designated Growth Area

One of the more practical limitations to the designation of development areas is the likely opposition of residents in and near the area. They will be concerned about the quality of life in their neighborhoods, the impacts of increased density, and the effect of new development on their property values.

To counter these predictable and reasonable fears, residents will need to be involved in the planning process for the designated growth area. During meetings with these residents a variety of methods of protecting their interests can be discussed. These include adopting landmark protection laws, creating historic district protections, ensuring the quality of the design of new and expanded buildings, providing new parks and recreational facilities, establishing cheaper and more convenient transportation alternatives, and explaining the benefits of a properly functioning, pedestrian-oriented neighborhood.

Smart Growth and Traditional Zoning—A Comparison

Local zoning can combat sprawl and foster development patterns that limit the land consumed by the housing and commercial development demanded by population growth and shifts.²⁸ This is evident in reviewing the conventional techniques used in the village of Pawling, New York, which are fairly typical of techniques used on the urban fringe, and an optional set of regulations adopted by the same community to encourage a "smarter" pattern of land use.

Pawling is located in the southeastern corner of Dutchess County on the Connecticut border about two hours north of New York City by train.²⁹ Its 2,000 residents live in a community that is located in a vast watershed area known as the Great Swamp.³⁰ The village is intersected by the north-south Route 22 transportation corridor and by the Appalachian Trail, which runs east and west along its northern border.³¹ In 1990, the village began a planning process that led to the adoption of a new comprehensive plan and a zoning ordinance that contains conventional zoning provisions, as well as incentives and other provisions enacted to concentrate future development in carefully designed, more compact neighborhoods.³² The differences between these conventional and innovative mechanisms represent two competing paradigms of local land use regulation. The village's conventional approach induces sprawl and illustrates the blueprint for development that local governments have traditionally used in growth areas. Its innovative devices demonstrate how local governments can regulate land use in line with smart growth principles.

Conventional Zoning

Pawling's village board of trustees enacted a zoning ordinance and map that separates the community into seven zoning districts: four residential, two business, and one industrial.³³ Over 70% of the community is zoned R1, which allows single-family residences to be built on lots at least one acre in size.³⁴ The central business district is zoned B1, which allows mixed-use commercial and residential development including multifamily housing.³⁵ This district is surrounded by relatively small areas that are zoned for single-family residences on lots ranging in size from one-quarter to three-quarters of an acre.³⁶ In B2 zones along the Route 22 corridor, warehouse, manufacturing, and other high-intensity uses are allowed along with more traditional commercial, office, and retail activities.³⁷ There is one industrial [31 ELR 11029] zone, I1, located in the northern part of the village along the railroad tracks.³⁸

This conventional zoning pattern is supplemented by a conventional approach to regulating the subdivision of land for residential development. The village board has adopted a standard set of subdivision regulations that regulates subdivisions of more than three lots.³⁹ Authority to review and approve residential subdivisions is delegated to the village planning board, as it is in most suburban and semi-rural towns and villages.⁴⁰ The primary purposes of such subdivision regulations are to ensure adequate provisions for vehicular circulation, adequate provision of utilities and other services, and to prevent damage or peril to surrounding properties.⁴¹

The zoning provisions in the 70% of the village zoned R1 require minimum lot sizes of 40,000 square feet, minimum front lot widths of 150 feet, front yard depths of at least 50 feet, rear yards of 60 feet or more, and side yards totaling at least 70 feet in the aggregate.⁴² The subdivision regulations add further "design" standards for residential developments in the village.⁴³ Collector roads must have 60-foot-wide rights of way and 32 feet of pavement, and minor roads must have 50-foot-wide rights of way and 20 feet of pavement.⁴⁴ These regulations add that the side lines of each lot must be at right angles to the street lines.⁴⁵

These physical requirements give the planning board, the village board, and land developers very little leeway in subdivision design, lot layouts, or the placement of buildings on the lot. They create a pattern of land development remarkable in its sameness, leading many to call such developments "cookie cutter" subdivisions. Such regulations separate retail and commercial uses from homes so that distances are not walkable; provide wide thoroughfares for the rapid movement of cars, which discourages pedestrian and bicycle movement; create relatively high-cost homes on expensive tracts of land; and spread the allowed development over the entire terrain contained in a proposed subdivision.

In these conventional zoning and subdivision regulations can be seen the blueprint for sprawl. Smart growth advocates say that sprawl can be curtailed by concentrating needed new development into designated development districts. Obviously, the low-density type of land development created by conventional zoning and subdivision regulations will not satisfy much of the new demand for housing and places to work and shop. A denser blueprint is needed, such as one that is more cost-effective, environmentally conserving, and creates a favorable quality of life.

Traditional Neighborhood District Zoning

New urbanists, sometimes called neo-traditionalists, advocate zoning and land use regulations that allow for the creation of traditional urban neighborhoods.⁴⁶ They point out that, under conventional zoning and subdivision laws, most traditional neighborhoods found in urban areas can no longer be replicated.⁴⁷ The corner drugstore or deli in a residential neighborhood is not allowed, apartments cannot exist above stores, and houses cannot be built close to the sidewalk with cars parked in the rear in garages that front on alleys that kids use as playgrounds. If cookie cutter subdivisions are the result of standards contained in zoning and subdivision ordinances, the new urbanists ask, why can't such regulations be modified to create different, more flexible neighborhoods?

Neo-traditionalists and many smart growth advocates argue that a new type of land development pattern is needed, one that is more concentrated and that creates a quality of neighborhood in which consumers feel comfortable living.⁴⁸ One such approach is to create mixed-use neighborhoods where housing types are varied, retail and commercial services are available within walking distance of residences, public green space is provided, visual and recreational amenities exist nearby, and pedestrian and bicycle travel is actively encouraged. Houses in such a neighborhood district can be allowed on smaller lots, retail and commercial uses can be mixed with residential uses, a variety of housing types can be allowed, and accessible open space can be created and dedicated to the use of all the neighbors.

Pawling's Overlay Zoning Approach

The village of Pawling has adopted a set of "urban regulations" and a number of other mechanisms that incorporate some of these aspects of neo-traditional neighborhood design.⁴⁹ In doing so, the village has used statutory authority delegated to it and all other local governments under New York law. It began by amending its comprehensive plan to call for more concentrated land patterns with dedicated open space, a network of trails, a regional green space network, and residential developments that are fitted around a revitalized central business district.⁵⁰ The plan also identifies four large tracts of property located in R1 zones and contains conceptual development plans for those tracts, an unusual device to be found in a comprehensive plan.⁵¹ These site-specific conceptual plans increase the number of residential units allowed on each tract, place this greater number of houses allowed on smaller lots, require the dedication of significant amounts of open space to the public, link this open space to trails and other open spaces and parks, and avoid development of the wetlands and steep slopes on the sites. The plans also call for through streets rather than the dead-end cul de sacs typical of new subdivision development in the area. The specific purpose of interconnected streets is to encourage pedestrian and bicycle traffic in the residential neighborhoods created. Only one of [31 ELR 11030] the four conceptual plans, with frontage on Route 22, contains any commercial land uses.

For these conceptual plans to be meaningful, the zoning law of the village had to be amended. This was accomplished in 1995 with the adoption of a new zoning code. It contains a schedule of "urban regulations" which provide for six building types that are now allowed in designated zoning districts.⁵² The urban regulations differ fundamentally from conventional zoning in that they use detailed illustrations to provide foralternative lot layouts, building designs, setbacks, and the location of parking; these give the planning board the type of control over the design of development that is missing in conventional zoning, subdivision, and site plan laws.⁵³

"Infill houses" are allowed under these urban regulations, for example, in all four residential districts.⁵⁴ Occupancy is limited to residential use, parking is provided on the rear of the lots, space for alleys is provided, front and side yard set-backs are reduced, and balconies, stoops, chimneys, porches, and bay windows are allowed to encroach on the smaller front and side yards adjacent to the street. "Small houses" are allowed under similar provisions in all four residential zones.⁵⁵ "Townhouses" are allowed in all residential districts.⁵⁶ They are permitted to be built to the lot lines on lots not adjacent to streets and to share party walls, with parking in the rear. Alleyways and stoops are required, and porches and breezeways are allowed.

These provisions allow great flexibility on the part of land developers and the planning board as new development is proposed and reviewed in residential districts. Force is given to the urban regulations by a provision in the zoning law that gives them precedence, when they apply, over the conventional standards of the bulk schedule of the zoning code.⁵⁷ They apply, according to the code, to all subdivisions of more than three lots.⁵⁸

With regard to the four large tracts that are conceptually designed in the revised comprehensive plan, the zoning code also implements the objectives of the comprehensive plan. The new zoning provides a density bonus of 30% for any new subdivision proposed on the subject parcels that meets the design guidelines contained in the comprehensive plan for that tract, that conforms to the open-space configuration and trail system in the comprehensive plan, that guarantees the affordability of 15% of the dwelling units, and that is connected to the village water and sewer system.⁵⁹ It is the obvious intent of the village board to induce developers of residential property on these four critical sites to follow the detailed design guidelines of the comprehensive plan by providing a significant amount of additional housing by the means of incentive zoning.

Streamlining of development proposals that conform with the urban regulations and the conceptual drawings found in the comprehensive plan is offered as an additional incentive to land developers. Since generic environmental impact statements were completed on the adoption of the plan and the zoning law, it is only necessary for an applicant to prepare and submit a supplemental EIS.⁶⁰ Development proposals that do not follow these regulations and plans will be subject to a more intensive and lengthy review process, which developers are particularly keen to avoid.

In these novel provisions, the village of Pawling has taken an important step toward smart growth and away from sprawl. The comprehensive plan was developed with significant input from all interest groups in the village. It is obvious from the results that greater control of the details of the design of development, more intelligent layouts of subdivisions, more affordability and diversity of housing, and greater coordination of the interconnections of developments in the village were endorsed by the citizenry and their elected leaders. These mechanisms stop short of the creation of growth and conservation boundaries, do not mix land uses to any significant degree, and, of course, have nothing to do with what happens in the critically situated adjacent communities. As an incremental move forward, however, they bear further study and watching.

Conservation Boundaries: Preserving Open Lands

The other side of the smart growth equation requires local governments to take actions that conserve some of the open lands and natural resources that are threatened by land development pressures.

The preservation of open lands is one of the few land use objectives found in the New York State Constitution.⁶¹ It is the policy of New York State to "conserve and protect [the] natural resources and scenic beauty [of the state] and encourage the development and improvement of . . . agricultural lands for the production of food and other agricultural products."⁶² The state legislature has enacted several statutes that delegate to local governments the authority to protect local natural resources and agricultural lands. Under these statutes, zoning regulations may be adopted with reasonable consideration of the character of the zoning district and with a view to encouraging the most appropriate use of the land.⁶³ Local comprehensive plans can identify and provide for the preservation of "natural resources and sensitive environmental areas."⁶⁴ The Municipal Home Rule Law authorizes each local government to adopt land use laws "for the protection and enhancement of its physical and visual environment."⁶⁵

Open lands serve a variety of purposes, including the conservation of farmland, wetlands, viewsheds, floodplains, coastal areas, habitats, and other natural resources.⁶⁶ Open lands maintain natural processes of conservation, provide [31 ELR 11031] recreational opportunities, promote aesthetically pleasing landscapes, and maintain community character and the quality of life.⁶⁷

Local governments in New York have extensive authority to limit the development of privately owned open land through land use regulations. Using this authority, localities have protected open land through overlay zoning, floating zones, clustered development, environmental review, incentive zoning, transferred development rights, tree preservation, and wetland protection. These techniques enable them to conserve wetlands, habitats, trees, landscape features, soils, floodplains, ridgelines, viewsheds, aquifers, and watersheds.

Overlay Zoning

Overlay zoning is a flexible zoning technique that allows a municipality either to encourage or to discourage development in certain areas.⁶⁸ An overlay zone is defined as "a mapped overlay district superimposed on one or more established zoning districts." An overlay zone supplements the underlying zoning standards with additional requirements that can be designed to protect the natural features in an important environmental area. A parcel within the overlay zone will thus be simultaneously subject to two sets of zoning regulations: the underlying and the overlay zoning requirements.

The purpose of an overlay zone is to conserve natural resources or realize development objectives without unduly disturbing the expectations created by the existing zoning ordinance.⁶⁹ In areas that contain particularly valuable natural resources, traditional zoning might not suffice, and more specific provisions may be needed to preserve the natural environment. Unique natural or aesthetic resource areas, such as a pine barren, wetland resource area, watershed, or tidal basin, can be identified and protected. To illustrate, an overlay district can be created to protect designated ridgelines in a community.⁷⁰ In these areas, landowners would be required to site all structures to avoid occupying or obstructing public views of land within the mapped overlay districts. This generally requires locating buildings away from ridgelines and ridgetops at lower elevations and closer to existing roads. These standards for the placement of buildings are, of course, more stringent and specific than those required by the underlying zoning law.

Floating Zones

The floating zone is a zoning district created by the local legislature but is not designated on the municipal zoning map until a landowner or developer applies for rezoning under that district or until some additional condition is met.⁷¹ Alternatively, the floating zone can alight on a parcel proposed for development if the parcel contains critical natural resources. The town of Washington in Dutchess County, New York, for example, adopted a set of environmental preservation regulations to preserve areas that include unique geologic strata, sensitive watersheds, slopes, vegetation, scenic views, and wildlife migration corridors, among other features.⁷² The law provides for the mapping of areas with such characteristics then subjects them to development controls "over and above the controls provided by the existing zoning district."⁷³ Development in designated Environmental Preservation Districts must be reviewed against a Development Guidelines Report prepared for each district by the Town's Conservation Advisory Commission.⁷⁴

Cluster Development

Cluster development is a zoning device used to conserve open space.⁷⁵ The New York statutes define cluster development as:

[A] subdivision . . . in which the applicable zoning ordinance or local law is modified to provide an alternative permitted method for the layout, configuration and design of lots, buildings and structures, roads, utility lines and other infrastructure, parks, and landscaping in order to preserve the natural and scenic qualities of open lands.⁷⁶

Normally, land is subdivided and developed in conformance with the dimensional requirements of the local zoning ordinance. Zoning usually requires that the entire parcel be divided into lots that conform to minimum lot sizes and that buildings on subdivided lots conform to rigorous setback, height, and other dimensional requirements. Using its cluster authority, a locality can allow or require allowable development to be placed on a portion of the parcel and the rest to remain undeveloped open space. Clustering can be limited to parcels with particular natural resource characteristics such as wetlands, valuable viewsheds, agricultural soils, or steep slopes.

The Bedford, New York, town board authorized its planning board to use clustering to preserve "a unique or significant natural feature of the site, including but not limited to a vegetative feature, wildlife habitat, surface water supply, underground aquifer, endangered species, rock formation, and steep slopes" and to protect "a unique or significant feature of the man-made environment of the site, including but not limited to a building, structure, or artifact of architectural, historical, or archeological value."⁷⁷ The town of Stanford, New York, requires residential structures to be clustered to protect agricultural soils for farming.⁷⁸

[31 ELR 11032]

State Environmental Quality Review Act

The State Environmental Quality Review Act (SEQRA) plays a vital role in protecting New York State's open space.⁷⁹ The essence of SEQRA is the requirement that the impact of all development projects on the environment be considered at the planning stage and that local agencies act effectively to avoid any possible adverse environmental impacts.⁸⁰

SEQRA regulations contain standards that can be used to protect open space. For example, the types of environmental effects that are to be considered and mitigated include potential adverse impacts on land, water, air, plants and animals, agricultural resources, aesthetic resources, historic and archeological resources, growth and character of community or neighborhood, and open space and recreation.⁸¹ SEQRA gives local boards independent authority to impose conditions on project approvals to mitigate negative impacts on open lands and their associated environmental features.⁸²

Incentive Zoning

Under state statutes, local legislatures may allow developers to build at greater densities than allowed under zoning in exchange for public benefits such as the preservation of open space.⁸³ The town of LaGrange, for example, awards a 40% density bonus when a developer promises to preserve 80% of a site for farming purposes.⁸⁴

The statutes also allow communities to receive cash payments in exchange for the zoning incentives awarded a developer. This allows localities to use the cash to achieve the public benefit directly. Using this authority, it is possible for the community to purchase development rights, or conservation easements, on valuable open land using the cash contributed by a developer who is granted zoning incentives to build in an appropriate location that can absorb the development impacts.

Transfer of Development Rights

New York statutes define transfer of development rights as "the process by which development rights are transferred from one lot, parcel, or area of land in a sending district to another lot, parcel, or area of land in one or more receiving districts."⁸⁵ A comprehensive plan in the Long Island Pine Barrens allocates development credits to land in the fragile pine barrens aquifer, based on the land's development yield under local zoning, and greatly restricts development in these "sending districts."⁸⁶ The plan establishes receiving districts into which these development credits may be transferred. Developers who own land in these receiving districts may purchase credits from landowners in sending districts. Each purchased credit allows the developer to build one housing unit over that permitted by the receiving district's zoning.

Tree Preservation

Another means of controlling scenic quality and community appearance is the adoption of a tree preservation law.⁸⁷ Such a law allows a community to restrict the removal of trees on private property in order to preserve their environmental and aesthetic importance to the community. The purpose clauses of such local laws typically explain that the provisions were adopted to reduce tree destruction, which gives rise to barren and unsightly conditions, impairs the stability of real property values, and adversely affects the character of the community. Tree ordinances typically limit their applicability to trees of a certain diameter and height. They establish a permit system, allowing tree removal but only upon a showing of necessity and compliance with certain conditions, such as replacement of all or some of the trees to be removed.

Freshwater Wetland Protection

Under the provisions of the New York State Freshwater Wetlands Act, local governments are authorized to adopt a local wetlands law governing all freshwater wetlands within their jurisdiction.⁸⁸ Once a local government has filed a wetlands map with the New York State Department of Environmental Conservation (DEC), the municipality may then enact a wetlands law.⁸⁹ Most local wetlands laws are adopted pursuant to the Municipal Home Rule Law, which authorizes local governments to adopt laws to protect the "physical environment."⁹⁰ Under these local laws, broader definitions of wetlands may be adopted, larger buffer areas regulated, and a more extensive range of activities covered than is possible under state regulations which govern wetlands 12.4 acres in size or larger.

The Freshwater Wetlands Act lists the critical public benefits that wetlands provide.⁹¹ These include floodwater and stormwater control, aquifer protection, groundwater recharge, maintaining stream flow, pollution elimination, erosion control, and the provision of recreational opportunity, open space and habitat for wildlife, including threatened, rare, and endangered species. The purpose of adopting a wetlands law is to preserve these benefits for the public.⁹² Generally, landowners who propose to conduct regulated activities must apply to the designated administrative [31 ELR 11033] agency for a permit. Where certain standards and conditions can be met, a permit may be granted allowing the regulated activity to proceed.⁹³ Conditions may be placed on the permit to avoid, minimize, or mitigate the loss or degradation of wetlands.⁹⁴

The Acquisition Alternative

An alternative to using land use regulations to achieve the conservation objectives of the smart growth agenda is to use local authority to purchase open lands. Local governments in New York are authorized under the General Municipal Law § 247 to spend public funds to acquire and maintain open spaces and to limit the future use of open spaces.⁹⁵ Open space is defined by this section as land characterized by natural scenic beauty, lands whose condition enhances surrounding developed lands, lands containing valuable natural resources, and lands used for agricultural production. Local governments using public funds to acquire such lands may either purchase the lands outright or purchase some or all of their development rights. To purchase a lesser interest of this type, the local government typically purchases a restrictive covenant or "conservation easement" from the landowner which limits the parcel's development and then pays the landowner the value of the development rights that have been conveyed to the municipality. When public funds are used under § 247 to purchase development rights, the local government must reassess the property's value for property tax purposes to reflect the reduced use and value of the land as restricted.

Under the New York Environmental Conservation Law, municipalities and not-for-profit conservation organizations are empowered to purchase conservation easements for the purpose of protecting property containing environmental, historical, or cultural assets or agricultural soils.⁹⁶ If conservation easements are acquired by local governments under the statute, a land trust can be assigned the responsibility of monitoring and enforcing the development restrictions placed on the land.⁹⁷

Using these two sources of authority, local governments have established programs that include the purchase of full title to open lands, the purchase of all development rights not currently used by the landowner, and the lease or purchase of less than all of the development rights, allowing landowners the option of developing part of the land presently or in the future. A variety of local programs can be created to meet the interest of the locality and the financial needs of particular landowners.

Methods and Examples of Acquiring Interests in Open Lands

[] Direct Appropriations. Localities may appropriate revenues derived from local property taxes to acquire interests in open lands as part of the local budgeting process.⁹⁸ Municipalities may ask their voters to approve a multiyear appropriation of a specified increase in the local property tax rate for the purpose of acquiring interests in open lands. In 1997, for example, voters in Greenburgh, New York, approved the creation of a multiyear property tax increase of 1/2 of 1% to be deposited in a capital reserve fund and used for the acquisition of interests in open lands.⁹⁹ The town projects that this tax increase will raise up to $ 750,000 over its six-year life. The town's plan is to use this resource as a means of leveraging additional county, state, and federal funds for open-land acquisition.

[] Issuance of Municipal Bonds. "Municipal bonds may be issued and the proceeds used for the acquisition of interests in open lands."¹⁰⁰ Voters in the town of Pittsford, New York, approved a $ 9.9 million bond issue to purchase development rights to 2,000 acres of mostly agricultural land located so that a wildlife habitat corridor was created linking important ecological resources with the town's remaining historic farms.¹⁰¹ Since 1974, Suffolk County has issued bonds on three separate occasions that have raised over $ 60 million that is being used to purchase development rights in farmlands.¹⁰²

[] Real Estate Transfer Tax. A local government may pass a local law requesting the state legislature to adopt a bill authorizing it to impose a tax on the transfer of title to real property within its jurisdiction.¹⁰³ At the request of several towns on the east end of Long Island, the state legislature added a section to the local finance law permitting them to impose a 2% real estate transfer tax to purchase interests in open lands and subjecting them to a variety of requirements regarding the use of the proceeds of the tax.¹⁰⁴ These proceeds supplement funds raised by the communities by other means, including the issuance of municipal bonds.

[] Reduced Tax Assessment. "Local governments may lease development rights from the owners of open lands in exchange for a reduction in property tax assessments during the lease's term."¹⁰⁵ The landowner agrees to a limited-term lease of the land's development rights, a conservation easement is imposed on the land for that term, and during that [31 ELR 11034] term a reduced tax assessment is applied lowering the taxes that must be paid by the owner. The town of Perinton, in Monroe County, uses a tax assessment table that establishes various percentages of tax reduction which are applied in exchange for the town's lease of development rights.¹⁰⁶ The amount of reduction increases when the owner agrees to a longer lease term. A 25-year lease term, for example, earns a 90% tax reduction. Penalties must be paid by owners who default on their lease obligations. These revenues are placed in a capital reserve fund, which is used to purchase development rights on other open lands.

Nationally, local voter initiatives were adopted in many states which dedicate funds to open-space acquisition.¹⁰⁷ In Colorado, Aspen and Longmont voters approved a proposal to dedicate a portion of the sales tax increase to open-space acquisition. Voters in Alachua and Broward counties in Florida approved bond issues to acquire funds for open space, watershed protection, and recreation. Over 40 communities in New Jersey, and 15 in Rhode Island, saw voters approve property tax increase proposals for the preservation of open space. Santa Fe and Bernalillio county voters in New Mexico approved large bond resolutions to raise funds for open-space acquisition. Several communities in New York, North Carolina, Ohio, Oregon, Pennsylvania, South Carolina, and Washington followed suit.

Smart Growth Applications

What is intelligent about the concept of smart growth is that it marshals growth pressures into cost-effective settlement patterns and leaves large, unfragmented areas of the natural environment open. Recent experience shows that local governments under existing legal authority are capable of accomplishing significant smart growth objectives both by directing development into designated growth areas and by discouraging development in environmentally significant landscapes.

One of the early lessons of the smart growth era—one inherited from the sustainable development movement—is that both development and conservation objectives should be pursued simultaneously. The two greatly enhance one another. Transfer of development rights requires both a sending and a receiving area. Incentive zoning in one area can provide the resources needed to acquire development rights and achieve conservation in another. Taxpayers can be persuaded to support environmental protection in one part of town when increased net property tax revenues are to be realized from development projected in appropriate places. Communities avoid exclusionary zoning challenges and property rights litigation when their land use policies are balanced and landowner rights are respected.

This balance is hard to legislate. It can evolve locally when all of the stakeholders understand the land use system, feel empowered to become involved, state their interests effectively, and negotiate solutions that respond to the many interests affected by land use decisions. In fact, local decisionmaking processes themselves can greatly enable smart growth solutions to individual development controversies and to planning for the community's future.¹⁰⁸

Smart Growth Processes

When a landowner submits an application for a development permit to a local land use agency, an extended process of negotiation is initiated. The parties to this negotiation are the owner, the members of the local administrative agency with approval authority, other involved public agencies, and those affected by the proposed project: neighbors, taxpayers, and citizens of the community. Unlike commercial and personal negotiations, this process is not viewed by most of its participants as a negotiation in the traditional sense. Local zoning ordinances give the landowner property rights that must be respected. State and local statutes prescribe standards and procedures that the agency members must follow. Affected neighbors and citizens receive notice of their right to attend and speak at one or more public hearings. This process is not organized, in most localities, as a structured negotiation in which the parties meet face-to-face, follow a self-determined process of decisionmaking, and arrive at a mutually acceptable agreement based on facts gathered in the process and give-and-take on all sides.

Instead, the local development approval process often costs the applicant significant sums of money, involves only indirect contacts among interested parties, and provides little opportunity to develop better and more creative solutions. For most significant development proposals, the process is lengthy, inflexible, and frustrating. The outcomes are unpredictable and relationships among those involved are more often damaged than strengthened. Nonetheless, during the awkward journey of a development proposal through the local approval process, critical interests of many stakeholders in the matter are expressed, heard, considered, and disposed of by a decision rendered by a voluntary board of local citizens. This is, in the classic sense, a negotiation that resolves, if not satisfies, each participant's interests. When it is seen as such, methods of making it more productive, satisfying, and efficient seem obvious.

Recent efforts have been made to improve the structure of negotiations among affected parties during the course of the approval process. The New York Court of Appeals, for example, sanctioned informal multiparty negotiations during the local environmental review process in Merson v. McNally.¹⁰⁹ The issue in that case was whether a project that, as originally proposed, involved several potentially large environmental impacts could be mitigated through project changes negotiated in the early environmental review process mandated by the SEQRA process.¹¹⁰

[31 ELR 11035]

The agency involved in Merson was the planning board in the town of Philipstown.¹¹¹ The owner of a mining site submitted a full environmental assessment form as required by SEQRA along with its application to the board for a special permit to conduct mining operations.¹¹² In an unusual move, the planning board conducted a series of open meetings with the project sponsor, other involved agencies, and the public.¹¹³ As a direct result of the input received at these meetings, the applicant revised the project to avoid any significant negative impacts.¹¹⁴ The planning board then issued a negative declaration, finding that the project, as now configured, would not negatively affect the environment.¹¹⁵

The New York Court of Appeals found that the planning board had conducted an "open and deliberative process" characterized by significant "give and take."¹¹⁶ It described the planning board's actions as "an open process that also involved other interested agencies and the public" rather than "a bilateral negotiation between a developer and lead agency."¹¹⁷ It found that the changes made in the proposal were not the result of conditions imposed by the planning board but were, instead, "adjustments incorporated by the project sponsor to mitigate the concerns identified by the public and the reviewing agencies. . . ."¹¹⁸ In short, the planning board had created an effective multiparty negotiating process that met due process requirements.¹¹⁹

Another example involves the DEC. The DEC has trained its administrative law judges (ALJs) and other staff in the mediation of disputes that arise during its permitting process. Under Governor Pataki's Executive Order 20, which encourages parties to state regulatory processes to settle disputes through negotiation, the DEC has begun to mediate disputes that arise in permit condition negotiations, for example, as well as after an ALJ's decision is rendered and before an appeal to the state courts.¹²⁰

Under a recently adopted statute in Maine, landowners who are aggrieved by a land use decision of a local decisionmaking body may submit their cases to mediators for resolution.¹²¹ The landowner must have suffered significant harm from the denial of a local land use permit and have pursued all avenues of administrative appeal.¹²² If these conditions are met, the landowner may make an application to the Superior Court clerk, who forwards the matter to the Court Mediation Service, which appoints a mediator in the county where the dispute originated.¹²³ The purpose of providing this alternative to court litigation is "to facilitate . . . a mutually acceptable solution to a conflict between a landowner and a governmental entity regulating land use."¹²⁴ The mediation is open to all persons who significantly participated in the underlying governmental land use proceeding.¹²⁵ Others whofeel their participation is necessary may request to be involved.¹²⁶

Mediation of this type is properly understood as negotiation assisted by a third party who is usually neutral. Professional mediators can be called in when the parties to a dispute recognize that they have a dispute, understand the importance of mediated resolution, and can agree upon, and have the resources to pay, a neutral mediator.¹²⁷ Where these conditions do not exist, someone involved in the local matter may come forward and attempt to structure a process that results in a facilitated decision, using the techniques of the experienced mediator.¹²⁸ The alternative to traditional mediation or structured facilitation is to stumble through the local decisionmaking process and to risk litigation by parties not satisfied by it.

Facilitators and mediators are process experts who carefully structure multiparty negotiations. Mediators and facilitators are skilled in effective negotiation and decisionmaking processes. They help by bringing involved parties together, building trust, clearly establishing the interests of those involved, serving as intermediaries, seeing that options to the resolution of the matter are generated, and working toward a settlement that is acceptable to all parties.

Mediated proceedings are usually informal and flexible, allow the parties to structure the decisionmaking process itself, and result in consensus-based settlements that are not binding on the participants or public bodies. When the agreement is based on the consensus of all affected parties, supported by credible facts, and consistent with regulatory standards, it can be highly influential in determining the administrative or policy outcome. In the court-assisted mediation program in Maine, any agreement that requires governmental action is not self-executing.¹²⁹ The landowner must [31 ELR 11036] submit the written agreement to the governmental agency involved.¹³⁰ The Maine statute gives that entity the authority to reconsider its earlier decision as long as no statutory provision regarding the approval process is violated.¹³¹

Mediation has been used in recent years as a method of building consensus regarding public policies and formulating land use regulations. In this context, mediation techniques assist parties with disparate interests to participate in a productive public decisionmaking process. In the land use and environmental field, this can involve the development of a comprehensive land use plan, the scope of an environmental impact study of a proposed project, determining how to rezone a community, a landscape, or a neighborhood, and coming to agreement regarding specific development proposals advanced by a land developer during the permit issuance process.

Illustrations of this use of mediation methods at the federal level include the Negotiated Rulemaking Act,¹³² the Administrative Dispute Resolution Act,¹³³ and the U.S. Department of Labor's Negotiated Rulemaking Handbook (1992). Several state legislatures have adopted statutes establishing negotiated rulemaking processes.¹³⁴ In New York, Governor Pataki's Executive Order 20 encourages state administrative agencies to use negotiation to prevent and resolve disputes in a wide range of administrative contexts, including permit issuance proceedings.¹³⁵

Increasingly, mediation and facilitation are being used as consensus-building tools for administrative decision and public policy matters at the local level where those affected by the decision or policy are involved in a very early stage in a multiparty negotiation, assisted by a mediator or facilitator. Theoretically, this process stands to benefit the parties the most since, if the outcome is positive, it not only avoids costly future litigation but makes the administrative decisionmaking process much more efficient and beneficial.

Conclusion

This Article demonstrates that local governments, in New York and many other states, have sufficient authority to implement smart growth policies should they chose to do so. All of the techniques described above have been used to positive effect in one or more municipalities. While these experiences are impressive, the problem is that they are highly particular, occurring in all too few locations. What is needed to make local smart growth strategies more effective is more aggressive action at the state and federal level.

In states where the law does not provide ample authority to local governments to adopt smart growth strategies, the first order of business is to adopt statutes that fill that gap. For this, they can use New York's rich menu of local options as a guide. Then states must establish aggressive educational and technical assistance programs to ensure that local policymakers and planners know about, and how to use, this authority. Among the types of assistance needed are practical guidebooks, model laws and ordinances, and practice clinics. In all states, discretionary funding for development and conservation projects should be made available, on a priority basis, to local governments that adopt smart growth policies and need funding to carry them out. Federal grant-in-aid programs should follow suit.

An even higher priority should be given in the distribution of state and federal financial assistance to those local governments that have entered into intermunicipal compacts or are working with their county or regional agencies on areawide smart growth strategies.¹³⁶

Following Maryland's lead, state and federal agencies can provide powerful incentives for local, intermunicipal, and regional smart growth planning and implementation. To do this, these agencies need to make it clear that infrastructure funding is more likely to be spent in designated growth areas and that open-space acquisition funds are more likely to be allocated to designated areas that contain significant natural resources or fertile agricultural lands.

While smart growth solutions may eventually descend as mandates from higher levels of government, they are within the grasp of local officials and the interest groups that shape local land use decisionmaking. Both the substance of local law making and the process of making land use decisions can be smarter and foster smart growth. Effective action at the state and federal level in support of local use of smart growth tools can hasten the rate of local innovation while the nation awaits a better way of dealing with the increasingly unacceptable costs of sprawl.

1. For a complete discussion of this authority and its use to accomplish smart growth objectives, see JOHN R. NOLON, WELL GROUNDED: USING LOCAL LAND USE AUTHORITY TO ACHIEVE SMART GROWTH (Envtl. L. Inst. 2001) from which this Article is adapted.

2. How these techniques can be used intermunicipally to achieve broader conservation and economic development objectives is discussed in John R. Nolon, Grassroots Regionalism Through Intermunicipal Land Use Compacts, 73 ST. JOHN'S L. REV. 1011 (1999). For a sober reflection as to how aggressively municipalities might use their authority to collaborate across boundaries, see ROBERT H. FREILICH, FROM SPRAWL TO SMART GROWTH 3 (1999):

Local governments have been particularly unable to deal effectively with the problems that urban sprawl created. In large part, this is a product of a system that allows each community to attempt to solve its own problems without regard to the general needs and wants of the region of which the community is a part.

3. AMERICAN PLANNING ASS'N, PLANNING COMMUNITIES FOR THE 21ST CENTURY 49-50 (1999) [hereinafter PLANNING COMMUNITIES]. In 1973, the Oregon legislature passed Senate Bill No. 10, OR. REV. STAT. §§ 197.000 to 197.860 (1991), requiring municipal and county governments to adopt comprehensive plans consistent with state goals. Id. §§ 197.005(3), 197.010. The growth management objectives of the state's plan are to "geographically bound urban development, provide adequate housing and urban development within the boundaries, and prevent urban encroachment on important natural resource lands outside the boundaries." JOHN M. DeGROVE, LINCOLN INST. OF LAND POLICY, PLANNING AND GROWTH MANAGEMENT IN THE STATES 117-120 (1993).

4. PLANNING COMMUNITIES, supra note 3, at 50.

5. MD. CODE ANN., STATE FIN. & PROC. § 5-7B-01 (1995 & Supp. 2000). This legislation (Smart Growth and Neighborhood Conservation Act) encourages bounded development by pledging the state to concentrate its infrastructure and development project funding in "priority funding areas" to ensure that growth occurs in and around existing and carefully planned growth areas. This is balanced by the Rural Legacy Program, MD. CODE ANN., NAT. RES. § 5-9A-01 (2000), which directs other state resources to protect agricultural, forest, and natural resource lands.

6. Smart Growth Working Group, Smart Growth Principles for New York State, Audubon Society, New York Office (2000), at http://ny.audubon.org/smart.html#WorkingGroup. The report calls for "bottom-up, community-based planning." It notes that the state should "provide for and encourage local governments to develop through a collaborative community-based effort a comprehensive land use plan. . . ." It further provides that the state should "encourage the location of land development in areas where infrastructure and public services are adequate and also encourage more compact development. . . ." Id.

7. See Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926).

8. PLANNING COMMUNITIES, supra note 3, at 52.

9. Id. at 25.

10. These generalizations are little more than a reflection on the fact that land use reform tends to proceed incrementally. In Maryland, New York, and Oregon, state law, even after reform, provides significant roles for the levels of government historically granted land use authority in those jurisdictions. Maryland's counties, charged with identifying priority funding areas, have long enjoyed more land use authority than counties in most other states. New York, like most of the states in the union, is highly deferential to its local governments in determining where growth shall occur. Portland, Oregon, drew and expanded its Urban Growth Boundary under the state planning program. A few systemic changes occurred in the 1970s and 1980s, but recent change in land use decisionmaking has been more gradual. See Patricia E. Salkin, Smart Growth at Century's End: The State of the States, 31 URB. LAW. 601, 646 (1999).

11. George E. Pataki, State and Local Governments: Partnering for a Better New York (2000), at http://www.state.ny.us/ltgovdoc/cover_pdf.html. The report commissioned by Governor Pataki was issued by the Quality Communities Interagency Task Force in January 2001 and is entitled State and Local Governments, Partnering for a Better New York. The report is based on a bottom-up approach to smart growth, relying on local governments for determining land use policy. "The Task Force found widespread support for the proposition that directions and decisions on a community's future must be made at the local level." See id. at 18.

12. S. 1367/A. 1969 (N.Y. 1999-2000).

13. Udell v. Haas, 235 N.E.2d 897 (N.Y. 1968).

14. See N.Y. TOWN LAW § 272-a (McKinney 1987 & Supp. 2001); N.Y. GEN. CITY LAW § 28-a (McKinney 1989 & Supp. 2001); N.Y. VILLAGE LAW § 7-722 (McKinney 1996 & Supp. 2001).

15. 30 N.Y.2d 359 (1972).

16. N.Y. EXEC. LAW § 910 (McKinney 1996).

17. Id.

18. 16 U.S.C. §§ 1451-1465.

19. N.Y. TOWN LAW § 261 (McKinney 1987 & Supp. 2001); N.Y. GEN. CITY LAW § 20(24) (McKinney 1989 & Supp. 2001); N.Y. VILLAGE LAW § 7-700 (McKinney 1996).

20. N.Y. TOWN LAW § 261-b (McKinney 1987 & Supp. 2001); N.Y. GEN. CITY LAW § 81-d (McKinney 1989 & Supp. 2001); N.Y. VILLAGE LAW § 7-703 (McKinney 1996).

21. Id.

22. N.Y. TOWN LAW § 274-b (McKinney 1987 & Supp. 2001); N.Y. GEN. CITY LAW § 27-b (McKinney 1989 & Supp. 2001); N.Y. VILLAGE LAW § 7-725-b (McKinney 1996 & Supp. 2001).

23. Michael Murphy & Joseph Stinson, Floating Zones, at http://www.pace.edu/lawschool/landuse/flzone.html (last visited May 29, 2001).

24. In Rodgers v. Village of Tarrytown, 96 N.E.2d 731 (N.Y. 1951), municipalities in New York learned that they have the authority to create novel zoning devices such as the floating zone to achieve the most appropriate use of the land. The court noted that

changed or changing conditions call for changed plans, and persons who own property in a particular zone or use district enjoy no eternally vested right to that classification if the public interest demands otherwise. Accordingly, the power of a village to amend its basic zoning ordinance in such a way as reasonably to promote the general welfare cannot be questioned.

Id. at 733.

25. See 6 N.Y.C.R.R. § 617.10 (2000). The New York State Environmental Conservation Law, N.Y. ENVTL. CONSERV. LAW §§ 8-0101 to 8-0117 (McKinney 1999), requires local governmental agencies, such as planning boards, to prepare an extensive EIS if they determine that the action, such as approving a developer's subdivision application, might have a significant adverse impact on the environment. This law is known as the State Environmental Quality Review Act (SEQRA). Environmental reviews conducted under SEQRA can extend the time period for the review of development proposals by many months, if not years, and the EIS preparation can cost applicants hundreds of thousands of dollars. The regulations of the Commissioner of the Department of Environmental Conservation implementing SEQRA are found at 6 N.Y.C.R.R. § 617 (2000). Under 6 N.Y.C.R.R. § 617.10 (2000), local governments are allowed to conduct a generic environmental impact statement (GEIS) when they adopt an entire program or plan having wide application. Local governments may prepare a GEIS on the adoption of a comprehensive plan and that, when this is done, "impacts of individual actions proposed to be carried out in conformance with these adopted plans and regulations and the thresholds or conditions identified in the generic EIS may require no or limited SEQR review . . . ." 6 N.Y.C.R.R. § 617.10(b) (2000).

26. N.Y. TOWN LAW § 261-a (McKinney 1987 & Supp. 2001); N.Y. GEN. CITY LAW § 20-f (McKinney 1989 & Supp. 2001); N.Y. VILLAGE LAW § 7-701 (McKinney 1996). Notice how the transfer of development rights (TDR) mechanism itself embodies the two factors of smart growth discussed in this Article. Under a TDR scheme, there is a "sending area," usually rich in natural resources from which development rights are sent and a "receiving area" to which development rights may be transferred. Obviously, the receiving area needs to be one with infrastructure capacity to absorb higher density development and, as such, is a bounded growth area, within a municipality. With proper planning these sending and receiving areas can transcend local boundaries and cover sending areas, for example, that are regional in scope. See generally Michael R. Jung, The Pine Barrens: A New Model of Land Use Control for New York, 3 BUFF. ENVTL. L.J. 37 (1995).

27. N.Y. TOWN LAW § 284 (McKinney 1987 & Supp. 2001); N.Y. GEN. CITY LAW § 20-g (McKinney 1989 & Supp. 2001); N.Y. VILLAGE LAW § 7-741 (McKinney 1996).

28. "Sprawl" is a convenient label used to describe the land use pattern achieved by most traditional zoning ordinances and maps, particularly in outlying suburban areas where large quantities of land are dedicated to accommodating relatively modest increases in population compared to densities in established urban areas. Sprawl is the problem that smart growth aims to solve. See Robert H Freilich & Bruce G. Peshoff, The Social Costs of Sprawl, 29 URB. LAW. 183 (1997). They report that

sprawl has engendered six major crises for America's major metropolitan regions. These crises are: (1) central city and first-and second-ring suburban decline; (2) environmental degradation through loss of wetlands, sensitive lands, and air and water quality degradation; (3) massive gasoline energy overutilization; (4) fiscal insolvency, infrastructure deficiencies, and taxpayer revolts; (5) devastating agricultural land conversion; and (6) housing inaffordability.

29. Village of Pawling, N.Y., Comprehensive Plan, at 7 (adopted Dec. 1994).

30. Id. at 23.

31. See VILLAGE OF PAWLING, N.Y., CODE ch. 98 (1995).

32. See id. art. IV, § 98-15.

33. Id. ch. 98, art. II.

34. Id. art. III, § 98-12.

35. Id. art. II; see also id. art. III, § 98-12.

36. Id.

37. Id.

38. Id.

39. See id. ch. 82, arts. I-V.

40. See id. ch. 98, art. XII, § 98-63.

41. See id. ch. 82, arts. I-V.

42. See id. ch. 98, sched. C (1995).

43. See id. ch. 82, art. V.

44. See id. art. V, § 82-27(C).

45. See id.

46. About New Urbanism, at http://www.cnu.org/about/index.htm (last visited June 6, 2001).

47. Jonathan Barnett, What's New About New Urbanism?, in CHARTER OF THE NEW URBANISM 5 (Michael Leccese ed., 2000).

48. About New Urbanism, supra note 46.

49. See VILLAGE OF PAWLING, N.Y., CODE ch. 98, sched. B (1995).

50. See Village of Pawling, N.Y., Comprehensive Plan (adopted Dec. 1994).

51. See VILLAGE OF PAWLING, N.Y., CODE ch. 98, sched. B.

52. Id. ch. 98, art. IV, § 98-13; sched. B.

53. See id. ch. 98, sched. C.

54. See id. sched. B, Type Ill.

55. Id. sched. B, Type IV.

56. Id. Type II.

57. Id. ch. 98, art. IV, § 98-13.

58. Id.

59. Id. art. IV, § 98-15.

60. Id. art. XVI, § 98-84.

61. N.Y. CONST. art XIV, § 4.

62. Id.

63. N.Y. TOWN LAW § 263 (McKinney 1987); N.Y. GEN. CITY LAW § 20(25) (McKinney 1989 & Supp. 2001); N.Y. VILLAGE LAW § 7-704 (McKinney 1996).

64. N.Y. TOWN LAW § 272-a(3)(d) (McKinney 1987 & Supp. 2001); N.Y. GEN. CITY LAW § 28-a(4)(d) (McKinney 1989 & Supp. 2001); N.Y. VILLAGE LAW § 7-722(3)(d) (McKinney 1996 & Supp. 2001).

65. N.Y. MUN. HOME RULE LAW § 10(1)(ii)(a)(11) (McKinney 1994).

66. See Center for Excellence for Sustainable Development, Land Use Planning Strategies, at http://www.sustainable.doe.gov/landuse/open.shtml (last visited June 6, 2001).

67. Id.

68. Timothy E. Jones & Matthew A. Bavoso, Overlay Zoning: Application and Implementation in New York State, at http://www.pace.edu/lawschool/landuse/overla.html (last visited May 29, 2001).

69. Id.

70. See WAWAYANDA, N.Y., CODE ch. 195, art. VI. § 195-52 (1998). "The ridgelines in the town are important environmentally and aesthetically and shall be protected under the provisions of this section of the Zoning Law." Id. § 195-52(a)(5).

71. Murphy & Stinson, supra note 23.

72. See WASHINGTON, N.Y., ZONING LAW art. III, § 316(1) (1991).

73. Id.

74. § 316(2)(a).

75. Michael Murphy & Joseph Stinson, Cluster Development, at http://www.pace.edu/lawschool/landuse/cluste.html (last visited May 29, 2001).

76. N.Y. TOWN LAW § 278 (McKinney 1987 & Supp. 2001); N.Y. GEN. CITY LAW § 37 (McKinney 1989 & Supp. 2001); N.Y. VILLAGE LAW § 7-738 (McKinney 1996 & Supp. 2001).

77. BEDFORD, N.Y., CODE ch. 107, § 107.50.1 (1995).

78. STANFORD, N.Y., CODE ch. 164, art. V. § 164-19A(1) (1995).

79. "It is the intent of the legislature that all agencies conduct their affairs with an awareness that they are stewards of the air, water, land, and living resources, and that they have an obligation to protect the environment for the use and enjoyment of this and all future generations." N.Y. ENVTL. CONSERV. LAW § 8-0103(8) (McKinney 1997).

80. See 6 N.Y.C.R.R. § 617.1(c) (2000).

81. See § 617.2(1).

82. See Jackson v. New York State Urban Dev. Corp., 494 N.E.2d 429 (N.Y. 1986).

83. Michael Murphy & Joseph Stinson, Incentive Zoning, at http://www.pace.edu/lawschool/landuse/incent.html (last visited May 29, 2001).

84. LAGRANGE, N.Y., CODE ch. 100, art. III, § 100-31C(3) (1998).

85. See N.Y. TOWN LAW § 261-a (McKinney 1987 & Supp. 2001); N.Y. GEN. CITY LAW § 20-f (McKinney 1989 & Supp. 2001); N.Y. VILLAGE LAW § 7-701 (McKinney 1996).

86. Central Pine Barrens, Comprehensive Land Use Plan, ch. 6 (adopted June 28, 1995).

87. N.Y. GEN. MUN. LAW § 96-b (McKinney 1999).

88. N.Y. ENVTL. CONSERV. LAW § 24-0501(1) (McKinney 1999).

89. Id.

90. N.Y. MUN. HOME RULE LAW § 10(11) (McKinney 1994).

91. N.Y. ENVTL. CONSERV. LAW § 24-0105(7)(a)-(i) (McKinney 1999).

92. Id. § 24-0103.

93. Id. §§ 24-0701 & 24-0705.

94. Id. § 24-0705(4).

95. N.Y. GEN. MUN. LAW § 247 (McKinney 1999).

96. N.Y. ENVTL. CONSERV. LAW. §§ 49-0301 to 49-0311 (McKinney 1999).

97. Id. § 49-0305(3).

98. N.Y. LOCAL FIN. LAW § 10.00 (McKinney 2001).

99. Town of Greenburgh, Ballot Proposition No. 1, Resolution Establishing a Capital Reserve Fund for the Acquisition of Open Space Areas Subject to Voter Ratification (Aug. 27, 1997).

100. Jeffrey LeJava, Open Lands Acquisition: Local Financing Techniques Under New York Law, in METROPOLITAN CONSERVATION ALLIANCE TECHNICAL PAPER SERIES, No. 2, at 2 (2000).

101. See Town of Pittsford, Bond Resolution (July 16, 1996); see also Town of Pittsford, Resource Evaluation System—Site Assessment Summary Table.

102. See Suffolk County, Bond Resolution 559-1998—Community Greenways Fund (1998); Suffolk County, Resolution—Implementing Greenways Program in Connection With Acquisition of Farmland Development Rights (1999); Suffolk County, Resolution 375-1999—Amending Land Preservation Partnership Program (1999).

103. Municipalities in New York must seek specific authority from the state legislature to impose such a tax. N.Y. MUN. HOME RULE LAW § 40 (McKinney 1994). This provision provides that such a request may be made separately or by two or more local governments.

104. N.Y. TAX LAW § 1449-aa to 1449-ee (McKinney 2000).

105. LeJava, supra note 100, at 3.

106. See Town of Perinton, Conservation Easement Program Summary & Fact Sheet (1999); Town of Perinton, Example of Tax Abatement on Hypothetical Property.

107. Land Trust Alliance, Voters Invest in Open Space: 2000 Referenda & Results, at http://www.lta.org/publicpolicy/referenda2000.htm (last visited June 6, 2001).

$=S

108. One hallmark of the smart growth movement is collaboration. Collaborative smart growth initiatives seek to identify common ground where the development community, environmentalists, civic organizations, public officials, and citizens can identify the most appropriate ways to accommodate future growth. It is through these collaborative initiatives that policies and practices . . . are formulated.

DAVID J. O'NEILL, THE SMART GROWTH TOOL KIT 3 (Urban Land Inst. 2000).

109. 90 N.Y.2d 742 (1997).

110. See id. at 747.

111. Id. at 748.

112. See id.

113. Id.

114. Id.

115. Id.

116. Id. at 753.

117. Id.

118. Id. at 755.

119. See id.

120. Gov. Pataki Exec. Order No. 20, 9 N.Y.C.R.R. § 5.20 (Nov. 30, 1995).

121. ME. REV. STAT. ANN. tit. 5, § 3341(3)(A) (West 2000).

122. Id. § 3341(3)(C)(1) & (2).

123. Id. § 3341(4).

124. Id. § 3341(6).

125. Id. § 3341(8).

126. Id. § 3341(7)(B).

127. According to a recent study, 86% of the participants in this type of mediated land use dispute were satisfied with the process, rating it favorable (40%) or very favorable (46%). See Consensus Building Inst., Study on the Mediation of Land Use Disputes, List of Key Findings chart # 9 (1999).

128. There is evidence that seasoned practitioners who represent developers and developers themselves are beginning to use collaborative negotiation as a means of involving the larger community in reviewing, reacting to, and reshaping their proposals. See, e.g., Dwight H. Merriam, AICP, Dealing With Citizen Opposition, Lessons Learned, in THE NATIONAL ASSOCIATION OF HOME BUILDERS, LAND DEVELOPMENT 23 (1999).

Today, I consider it a failure on my part if I do not have unanimous or at least substantial support for a project before the hearing, if I cannot complete a hearing in one night, and if I do not receive unanimous or near-unanimous approval. It is not idealistic to expect a project to win unanimous support and unanimous approval. No, we cannot achieve this objective in most cases, but it is possible to get most of the way there through sound planning, properly targeted communications, and an overarching desire to understand and meet the community's needs.

Id. at 28. In the town of Cortlandt, New York, the principal of Wilder Balter Partners, a development concern, is using an extensive process of collaborative negotiation to involve the community in considering and reshaping alternative proposals for his development. Reports from both sides are that the process is much more productive than the normal development review process, which does not involve the community in any formal way until the public hearing stage.

129. ME. REV. STAT. ANN. tit. 5, § 3341(11)(A) (West 2000).

130. Id.

131. Id. § 3341(11)(B).

132. 5 U.S.C. § 581.

133. Administrative Dispute Resolution Act of 1990, Pub. L. No. 101-552, 104 Stat. 2736 (1990) (codified as amended at 5 U.S.C. § 581).

134. See FLA. STAT. ANN. § 120.54 (West 1996 & Supp. 2001); IDAHO CODE §§ 67-5206(3)(c), 67-5220 (Michie 1995); MONT. CODE ANN. § 2-5-101 (1999); NEB. REV. STAT. §§ 84-919.01 et seq. (1999); OR. REV. STAT. § 183.502 (1999); TEX. GOV'T CODE ANN. § 2008 (Vernon 2000).

135. Gov. Pataki Exec. Order No. 20, supra note 120.

136. Last year the state of New York initiated the Quality Communities Demonstration Grant Program. It offered less than $ 1.15 million on a competitive basis to local governments for their quality community, or smart growth, projects. The U.S. Department of State, which administers the program, made it clear that localities were more likely to receive grants if they joined with neighboring communities in developing smart growth strategies for demonstration grant funds. Over 180 applications were received, totalling over $ 17 million in requests, and over 80% of the applications were intermunicipal in nature. This type of intermunicipal cooperation is unprecedented in New York and is attributed largely to the state's decision to make funding available on a priority basis to intermunicipal smart growth projects. Telephone Interview with Carmella Mantello, Assistant Secretary of State, State of New York (May 2, 2000).