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32 ELR 11385 | Environmental Law Reporter | copyright © 2002 | All rights reserved Using Smart Growth to Achieve Sustainable Land Use PoliciesPatricia E. Salkin[Editors' Note: In June 1992, at the United Nations Conference on Environment and Development (UNCED) in Rio de Janeiro, the nations of the world formally endorsed the concept of sustainable development and agreed to a plan of action for achieving it. One of those nations was the United States. In August 2002, at the World Summit on Sustainable Development, these nations gathered in Johannesburg to review progress in the 10-year period since UNCED and to identify steps that need to be taken next. Prof. John C. Dernbach has edited a book, Stumbling Toward Sustainability, that assesses progress made by the United States on sustainable development in the past 10 years and recommends next steps. The book, published by the Environmental Law Institute in July 2002, is comprised of chapters on various subjects by experts from around the country. This Article appears as a chapter in that book. Further information on Stumbling Toward Sustainability is available at www.eli.org or by calling 1-800-433-5120 or 202-939-3844.] The author is Associate Dean and Director, Government Law Center; Professor of Government Law, Albany Law School. She is grateful to Albany Law School student Adam Bear, class of 2003, and Siena College Fellow Sally Seitz, class of 2002, for their research assistance. Introduction Any analysis of U.S. progress toward meeting the goals of Agenda 211 must include a hard look at the political will and actions toward reforming our system of land use controls. Land development policies and decisions are inextricably intertwined with a significant number of items contained in Agenda 21, creating a perhaps unusual scenario requiring cross-disciplinary and interjurisdictional approaches to effectively implement strategies that will both promote and yield sustainable land development. The following Agenda 21 goals relate directly to land use planning and decision-making: promoting sustainable human settlements (Chapter 7) that include adequate shelter, management of urban settlements, sustainable land use planning, and management of sustainable construction policies; policymaking for sustainable development (Chapter 8) that includes the full integration of, among other things, environmental and development issues for government decisionmaking addressing economic, social fiscal, energy, agricultural, and transportation issues; protecting the atmosphere (Chapter 9) by utilizing certain land use and resource practices; implementing an integrated approach to land resource use (Chapter 10) that requires environmental, social, and economic issues to be considered simultaneously for the sustainable use and management of land resources; combating deforestation (Chapter 11) by employing strategies that include the "greening" of the urban areas; halting the spread of deserts (Chapter 12) by, among other things, adopting sustainable land use policies and sustainable management of water resources; and meeting agricultural needs without destroying the land (Chapter 14) by harmonizing land resource planning.2 Defining Sustainable Land Development Sustainable land development requires consistent integration of social, environmental, and economic considerations in decisionmaking to produce results that promote a sound, coordinated, and harmonious built environment. This means that to truly accomplish sustainable land development, our system of land use controls and decisionmaking must be consistent both horizontally (among and between neighboring jurisdictions) and vertically (from one level of government to the next). Achieving this result requires heightened levels of intergovernmental cooperation, coordination, and support. Land use decisions and legal land use controls are responsible for, and the major contributing factor toward, the ability of the United States to successfully implement many of the key sustainable land development benchmarks in a truly integrated approach. Little regulatory and legislative success in addressing the environmental degradation of land has been achieved by public leadership.3 Following the 1992 Earth Summit, Sen. Paul Simon (D-Ill.) remarked that "the responsibility to preserve our natural resources for future generations must become one of our highest priorities."4 Unlike other countries, in which land use policies typically emanate from the national government, in the United States land use controls are viewed by most states as well as the federal government as a matter of local concern. This has proven problematic in the area of environmental protection and preservation, as local governments almost uniformly fail to take into account regional needs and concerns when making land use decisions, since such consideration is often not mandated. Agenda 21 asserts that national governments should delegate "planning and management responsibilities to the lowest level of public authority consistent with effective action."5 This is the lightening rod of land use reform debate in the United States—whether the traditional notion of local land use planning and decisionmaking is effective enough to satisfy societal needs and meet the sustainable development objectives outlined at Rio. The notion that land use controls and decisionmaking are best left to local governments presents a dilemma, as clearly [32 ELR 11386] air and water pass through the arbitrary jurisdictional boundary lines drawn on a map. Restrictive covenants and siting decisions advanced to address what may be viewed as locally unwanted land uses often result in settlement patterns whereby minority communities and communities of predominantly low-income individuals are located in industrial and other blighted/brownfield areas that pose health, safety, and welfare concerns.6 Furthermore, certain public infrastructures, such as highways and roads, are both interjurisdictional and intergovernmental. Whereas people once lived in the same small communities in which they worked, today commuters frequently live and work in separate jurisdictions. The economic health of one jurisdiction is increasingly dependant on its neighboring municipalities. To achieve economic, environmental, and social sustainability, the United States is now forced to revisit the local land use control system that has been at work for nearly a century, forging a new approach that is consistent with, among other things, Chapter 8 of Agenda 21.7 Either the federal and state governments will need to empower, incentivize, and/or require the implementation of coordinated local and regional sustainable land use development initiatives, or a shift in the level of government for planning and implementation must be openly debated and not simply dismissed on the ground that our system is historically vested in purely local control. Smart Growth Promotes Sustainable Land Development Policies At the dawn of the 21st century, the federal and state governments, as well as the private and nonprofit sectors, have begun to realize that achieving sustainable development means changing our land use policies. Smart growth is land development that supports the balance of sustainable, economic, community, and environmental goals.8 The smart growth movement is proving to be, at least in rhetoric, not only a solution to the disorganized and inefficient system of land use controls of the past, but also a framework to set a new paradigm for the future.9 In general, smart growth principles mirror many of the implementation strategies for sustainable land development which the United States endorsed and committed to through Agenda 21, as they both support intergovernmental cooperation and recognize the interjurisdictional and cross-disciplinary dynamics of economic, housing, social, physical infrastructure, e.g., roads and highways, environmental, and agricultural issues. While there is no one spokesperson per se for the smart growth movement, studies and reports and Executive Orders and legislation have expressed an appreciation for the need to balance the impacts from each of these different policy areas to achieve a better quality of life. In essence, although few documents refer to it as such, smart growth principles directly support and suggest strategies to achieve sustainable land development. As this Article will discuss in greater detail, the smart growth concepts offer much in the way of hope. While more than one-half of the states are actively working toward the implementation of smart growth principles,10 time is still needed to benchmark the level of success of programs that have been only recently implemented. This Article analyzes progress toward compliance with Agenda 21 principles and action strategies through an examination of what the United States has done since the early 1990s with respect to redefining and shifting the power over land use law controls. It offers an historical overview of national land use regulation in the United States. This discussion is critical to setting the political, social, and cultural context within which our present land development system is based. The section discusses, among other things, the current locally based system of land use planning and controls in this country, and reports on the failed attempts during the 1970s to create a national land use policy. These serve to foreshadow recently renewed national reform efforts by the federal government to address our locally-based system of land use control. It concludes with a review of present national strategies and interests designed to foster sustainable land use. The Article then focuses on political and legislative activities at the state government level. Encompassed in the smart growth movement, these activities offer the best hope for the United States to develop interjurisdictional partnerships to effectively strive for integrated compliance with the Agenda 21 principles. Throughout this Article, political considerations and events are noted since meaningful reform cannot be accomplished without the political will and leadership to modernize a system creeping toward its centennial anniversary. The final portion of the Article offers an analysis of the challenges still facing the United States in meeting the goals of sustainable land development. The Article concludes with key recommendations to advance the country's progress toward achieving sustainable land development. These include: sustaining leadership interest in and commitment [32 ELR 11387] to statutory reform and reforming the culture of local land use decisionmaking; addressing the difficult "hot button" issues of local home rule control and regionalism; achieving vertical and horizontal consistency among and between all levels of government; the designation of a sustainable (land) development coordinator at the state and federal levels; and the provision of fiscal and other incentives to assist in changing patterns of behavior at the local level, including the passage of the Community Character Act pending before the U.S. Congress and wiser infrastructure investment policies. The History of Land Use Regulation in the United States The system of land ownership in the United States has resulted in a widespread belief by individual property owners that having a fee simple ownership in land is tantamount to a right to do whatever the owner desires with her property.11 Historically, government regulation over the use of property did little more than separate incompatible uses.12 Even this limited measure of government regulation has met with resistance over the years from the growing property rights movement.13 Land use regulation and control in the United States fails to promote the notion that fee simple owners are simply the stewards of the land for future generations, and the notion of a common public resource in privately owned land simply does not exist.14 Basic common-law principles of waste15 are often irrelevant to the land owners. Sprawl, or the spreading of development from the urban core into the suburban and rural countryside, has become a primary enemy of sustainable development. Sprawl is defined as "development that expands in an unlimited and noncontiguous (leapfrog) way outward from the solidly built-up core of a metropolitan area" and "in terms of land-use type . . . includes both residential and nonresidential development."16 It has been enabled by the automobile and a built-out network of roads and highways. Listed among the detrimental effects of sprawling land development are the rapid consumption of exurban agricultural lands and other significant environmentally sensitive lands.17 While the environmental movement has embraced the sprawl debate as a major issue that must be addressed at all levels of government, some economists offer the practical view that while most Americans may not be unhappy with the current pattern of land development (as evidenced by the fact that there is enough market demand to support sprawl development), the reality is that society cannot afford the costs (as measured by both capital improvements and resource depletion) associated with sprawl.18 According to the seminal national study on the costs of sprawl, "land in the United States is consumed at triple the rate of household formation; automobile use is growing twice as fast as the population; and prime agricultural land, forests, and fragile lands encompassing natural habitats are decreasing at comparable reciprocal rates."19 Between 1970 and 1990, more than 19 million acres of rural lands were developed, and according to the American Farmland Trust, approximately 70% of our country's prime or unique farmland is now in the path of rapid development.20 Effective sustainable land development policies must address ways to minimize sprawl and maximize sound development opportunities so that the United States may conserve important lands, e.g., prime agricultural lands, preserve the natural environment, e.g., forests, open spaces, and other sensitive lands, protect citizens from unnecessary environmental health hazards that result from haphazard development, e.g., air and water quality, promote affordable housing, e.g., through compact development and urban renewal, and more wisely spend public resources for economic development endeavors, e.g., promoting urban infill rather than rural development. Failed National Land Use Policy Interest by the federal government in land use controls dates back to the 1920s with the U.S. Department of Commerce's (DOC's) publication of the Model City Planning and Standard Zoning Enabling Acts.21 These models, promulgated [32 ELR 11388] under Secretary of Commerce Herbert Hoover, recognized that land use planning and controls were matters for local governments to address. In 1933, the National Planning Board was established to encourage planning at the state and national levels.22 Most municipalities today continue to operate under zoning laws that were drafted based upon the national model acts. For much of the next half century, law-makers and policymakers paid little attention to the laws governing the control of land. Even the federal judiciary was seemingly quiet in this arena. No major land use decision was handed down by the U.S. Supreme Court between the early 1900s and the early 1970s.23 Furthermore, environmental and land use economic policies have historically promoted wealth accumulation through private property ownership while contributing to the depletion of natural resources and to the degradation of the landscape.24 Regional Planning Was Historically Promoted by the Federal Government In the 1960s, the U.S. Department of Housing and Urban Development (HUD) started to focus attention on some of the results of an uncoordinated and ineffective system of local land use control. To help improve the system, HUD provided money to the states and local governments under the auspices of the § 701 Planning Grant Program of the 1954 Housing Act for the development of regional and local comprehensive land use plans.25 The 1965 Housing and Urban Development Act, which created HUD to coordinate urban planning at the federal level,26 extended and expanded the § 701 grants. Funding for this program was not sustained, however, resulting in local governments across the country having very little fiscal incentive to plan for development with regional needs in mind. The National Environmental Policy Act Was a Step Toward Checking Sustainability The enactment of the National Environmental Policy Act (NEPA)27 in 1969 set forth a framework for considering the environmental impacts of certain government decision-making. Environmental laws and regulations have significant impacts on local land use systems and, although environmental and land use laws may be designated for different purposes, their application is inextricably intertwined.28 The Council on Environmental Quality (CEQ), the entity responsible for implementing NEPA, has examined sprawl and smart growth issues in the past. For example, in 1974 the CEQ released a report entitled The Costs of Sprawl, which studied the impacts of sprawl.29 In 1981, its National Agricultural Lands Study examined the loss of agricultural lands due to sprawl.30 A current legislative proposal would require the CEQ to update these studies and analyze how well recent environmental impact assessments and environmental assessments have examined the impacts of proposed federal actions on growth and urban sprawl.31 The Introduction of a National Land Use Policy: A Proposed Complement to NEPA In 1970, Sen. Henry Jackson (D-Wash.) took the bold step of introducing legislation to create a National Land Use Policy Act (NLUPA), recognizing that NEPA was limited in its scope to environmental impacts and while the legislation was important and necessary, it is only part of the solution.32 The proposal, meant to be a bookend with NEPA, was buried after it twice passed the U.S. Senate, but failed to win support in the U.S. House of Representatives.33 The NLUPA would have provided states with financial incentives to prepare state land use plans. It would have also established a national data system to give state and local governments access to data for the purpose of sound land use planning. The NLUPA would have additionally established a single federal agency to ensure that all other federal agencies were complying with state plans. Piecing Together a National Land Use Policy for the 21st Century: The Threads of Federal Intrusion Into Local Land Use Control Since the failure of this effort, the federal government had done little to shift the control of land use or land use decisionmaking from local governments. Beginning in the late [32 ELR 11389] 1980s and through the 1990s, the federal government enacted a series of laws and regulations that had the effect of preempting local control over certain land use decisionmaking in limited areas.34 However, in the 1990s, renewed interest in promoting the goals and principles of sustainable development has led to unprecedented federal and state35 interest in creating a new paradigm for laws and regulations controlling the use of land. Post-Earth Summit—The Notion of Livable Communities Awakens an Otherwise Dormant Federal Interest in Sustainable Land Use From the unsuccessful attempts to create a national land use policy to the start of the Earth Summit, the potential impacts of federal government involvement in sustainable land use lay dormant as a sleeping giant. After the Rio Summit and the adoption of Agenda 21, the United States began to take actions demonstrating a renewed interest in sustainable development. The notion of livable communities, smart growth, and sustainability slowly crept into federal agency program initiatives beginning in the early 1990s.36 The U.S. Department of Energy's Center of Excellence for Sustainable Development asserted that "community sustainability requires a transition from poorly managed sprawl to land use planning practices that create and maintain efficient infrastructure, ensure close-knit neighborhoods and sense of community, and preserve natural systems."37 In support of a national sustainable development movement, a number of federal agencies began offering grant programs and technical assistance aimed at offering state and local governments incentives to initiate programs around the sustainable development principles. For example, the U.S. Environmental Protection Agency (EPA) offered Sustainable Development Challenge Grants for local projects that help rebuild and strengthen communities,38 and the DOC established the Office of Sustainable Development and Intergovernmental Affairs.39 Additional smart growth and sustainable development programs have been launched and funded at HUD,40 the U.S. Department of Transportation (DOT),41 and the U.S. Department of Agriculture.42 Growing Smart—A Public, Private, Nonprofit Partnership The Standard City Planning and Zoning Enabling Acts have recently been revisited through a multiyear, multiparty initiative, "Growing Smart," spearheaded by the American Planning Association (APA).43 Started in 1994, the initiative is designed to help states modernize statutes affecting planning and the management of change.44 In January 2002, the final edition of a legislative guidebook was released,45 with much success already credited to the publication of the 1998 interim edition (many states have modeled reforms on this work).46 Among the sustainable development initiatives promoted through this project are frameworks for co-operative state, regional, and local planning; regional tax base sharing; urban growth areas; incentives for affordable housing; and various techniques for preservation of environmentally sensitive areas, farmlands, and open space.47 The Growing Smart directorate boasts a "who's who" of major stakeholders in the land use reform debate: APA, National Governors' Association, Council of State Community Development Agencies, National Conference of State Legislatures, National League of Cities, National Association of Counties, National Association of Regional Councils, [32 ELR 11390] National Association of Towns and Townships, and the U.S. Conference of Mayors. The constituencies of each of these organizations are critical to achieving success in the implementation of sustainable land use programs and policies, and this effort is another example of positive action in support of the work of the Earth Summit. In another initiative, EPA joined forces with the International City-County Managers Association (ICMA) and the Urban Land Institute to launch and support the Smart Growth Network, an organization designed to assist national, regional, and local coalitions to encourage metropolitan development that is environmentally smart (through protecting air and water quality, enhancing access to nature and encouraging brownfields redevelopment), fiscally smart (by paying for itself and providing high quality municipal services without constantly rising property taxes), and economically and socially smart (by promoting community economic vitality, livability, resource efficiency, equity, and sense of place).48 Livability Agenda to Promote Sustainable Land Use Established by President William J. Clinton, the President's Council on Sustainable Development (PCSD) was created to address development and growth issues and to advise the president "on sustainable development and to develop new approaches to integrate economic, environmental, and equity issues."49 With reports issued in 1996 and 1999, the Clinton Administration kept sustainable development in the national agenda. The PCSD's policy recommendations in the area of strengthening communities announced clear support for the ongoing smart growth reform agenda. Specifically, the PCSD recommended community-driven strategic planning; collaborative regional planning; building design and rehabilitation strategies to enhance public health and the environment and to preserve historic and natural settings; and promoting mixed-use and mixed-income developments, managing the geographical growth of existing communities and siting of new ones to decrease sprawl and to conserve open space, as well as revitalizing brownfields for redevelopment.50 In June 2000, the Clinton-Gore Administration released their revised report, Building Livable Communities: Sustaining Prosperity, Improving Quality of Life, Building a Sense of Community,51 which contained a comprehensive 30-point package of policies designed to support local efforts to revitalize existing communities, protect farmland and open space, and, among other things, generally encourage economic prosperity consistent with a high quality of life. While the Administration's interest in promoting sustainable land use policies through partnerships and incentives was reflected in the rhetoric of the domestic policy agenda, whether enough funding was made available to bank serious accomplishments is a matter of perspective. While a list of positive steps can be recorded, advocates would likely suggest that it was not enough. However, long-term meaningful change will not come overnight with one or two budget years or with one or two pieces of legislation. Rather, bits and pieces of reforms, preservation successes, and behaviors need to be examined cumulatively to determine whether they have made a difference. Given the political landscape, rhetoric and each small success contributes to the movement toward sustainable land use development. With this in mind, it is clear that progress has been made. It is too soon to evaluate the continuing level of commitment to and interest in these issues by the Bush Administration.52 The Promise of Environmental Justice and Its Impact on Local Land Use Control Environmental justice (EJ) is not simply about environmental hazards that are traditionally addressed through regulatory action by federal and state environmental executive agencies, but rather goes to the very core of traditional land use decisionmaking including: (1) the siting of various locally unwanted land uses (LULUs) (referred to as geographic equity); (2) the decisionmaking process used for the siting of these LULUs, including the location and timing of public hearings (referred to as procedural equity); and (3) the sociological factors including the political power on environmental/land use decisionmaking (referred to as social equity).53 Although the academic literature is rich with studies and reports about instances of environmental racism, it was not until the 1990s that the federal government began to take notice of the allegations. In 1990, EPA created an Environmental Equity Work Group to examine distributional issues raised by environmental policies and their enforcement.54 President George H.W. Bush created the Office of Environmental Equity in 1992,55 and in 1993, the U.S. Civil Rights Commission formed state advisory groups to investigate allegations of environmental injustice.56 The National Environmental [32 ELR 11391] Justice Advisory Committee was started in 1993 as a forum for communities. In 1994, President Clinton issued an Executive Order entitled Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations,57 an action that signaled clear government recognition of the problems and a commitment to addressing the resulting social equity issues.58 In 1997, the CEQ issued guiding principles for considering EJ under NEPA.59 The Environmental Justice Act was introduced in Congress in 1999, but failed to secure passage.60 Scholars are now articulating clear connections between EJ and zoning and land use.61 The attention to the subject, combined with continued grant programs from EPA to community-based grass-roots organizations for the support of education, training, and technical assistance about EJ,62 as well as the publication for comment in 2000 of a new EPA EJ guidance document,63 suggest that EJ discussions are firmly embedded into the sustainable development movement in the United States.64 While there is still a long way to go in achieving social equity, the actions taken to date represent an important foundation for future improvements. While the federal government has taken the lead on promoting EJ principles, recently however, state governments have joined in with Executive Orders and legislation promoting this aspect of sustainable land development.65 For example, in California, legislation was enacted giving the Office of Planning and Research jurisdiction over coordinating environmental justice programs.66 The law also charged the California EPA with developing a model EJ mission statement for boards, departments, and offices within the agency. A law, passed in 2000, directed the Secretary for Environmental Protection to convene an intraagency working group on EJ on or before January 15, 2002.67 This group is to assist in "developing an agencywide strategy for identifying and addressing any gaps in existing programs, policies, or activities that may impeded the achievement of EJ." In addition, the state has hired an Assistant Secretary for EJ, a statement of the prominence afforded to the issue when most other states simply have a designated EJ coordinator. In December 2000, the Massachusetts Office of Environmental Affairs released a draft policy statement on the need to address EJ issues. Developed with the input of a community-based advisory committee and with significant public participation, including a multiagency EJ Working Group, the department accepted comments through the summer of 2000.68 The Commissioner of the Tennessee Department of Environment and Conservation released an EJ Strategic Plan.69 By means of a 2000 administrative order, an Environmental Equity Policy was approved by the New Jersey Environmental Equity Task Force/Advisory Council.70 Most recently, in 2001, Gov. Parris Glendenning (D-Md.) issued an Executive Order establishing the Commission on Environmental Justice and Sustainable Communities.71 These EJ activities are likely to significantly factor into and therefore impact local land use decisionmaking. States are slowly starting to become more aware, more sympathetic, and more vigilant about the impacts of local land use decisions that yield disproportionate environmental impacts for minority and low-income populations. Education and training will be needed to inform the stakeholders in the land use process about EJ issues and considerations since today the EJ discussions continue largely within the environmental and advocacy communities and are debated at the federal and state levels, and not enough at the local government level.72 Congressional Efforts Demonstrate Interest in Sustainable Land Use Sustainable land use reform efforts at the federal level are also visible in the legislative branch of government. While executive leadership is vital to achieving a coordinated intragovernmental approach, the legislature can chart a meaningful path toward intergovernmental reforms through fiscal incentives and other policy rewards. The bipartisan interest that is evidenced in the activities described below bodes well for an optimistic outlook that change is in fact on the horizon. The Community Character Act The Community Character Act of 2001 was introduced "to assist States with land use planning in order to promote improved quality of life, regionalism, sustainable economic development, and environmental stewardship."73 Reiterating the federal government's belief that land use planning should be conducted at the state and local level, the bill asserts that there is an important role for the federal government in supporting state and local comprehensive planning and community development.74 The legislation would provide fiscal incentives of up to $ 1 million to assist states with the development or revision of land use planning legislation where enabling acts are inadequate or outmoded and to support the creation or revision of state comprehensive land use plans or plan elements.75 Influenced by the APA's Growing Smart initiative, the Act would require states to demonstrate consistency with the following sustainable development initiatives: citizen participation in the development, adoption, and updating of land use plans; multijurisdictional cooperation in the development of the plans to provide for resource sustainability; and comprehensive planning that would: (1) promote sustainable economic development and social equity; (2) enhance community character; (3) coordinate transportation, housing, education, and social equity; (4) conserve historic resources, scenic resources, and the environment; and (5) sustainably manage the state's natural resources.76 In March 2002, three years after its initial introduction, congressional hearings were scheduled on the Act. Senate Smart Growth Task Force A 24-member, bipartisan, multiregional Senate Smart Growth Task Force was established in January 1999 by Sens. Jim Jeffords, then a Vermont Republican (now an Independent), and Carl Levin, a Michigan Democrat, with the overall goal of determining and promoting ways in which the federal government can assist states and localities address growth management issues.77 Senator Jefford's interest in smart growth may now be more significant following his appointment to the Chairmanship of the Senate Environment and Public Works Committee. House Sustainable Development Caucus More than 30 members strong, the House Sustainable Development Caucus, formed at the start of the 105th Congress, is a bipartisan congressional caucus created to educate members and staff on the meaning of sustainable development and where it is occurring around the country.78 The goal is for members to then use the knowledge, "when looking at legislation to ensure that federal policies promote rather than impede sustainability efforts."79 House Livability Communities Task Force In 1996, Rep. Earl Blumenauer (D-Or.) founded the Livable Communities Task Force. The task force, with over 50 members, supports legislation that: requires local community involvement in government decisions at all levels; provides local communities with the tools to solve their own local problems; promotes cheaper, more environmentally friendly solutions to infrastructure problems, thereby preserving and conserving resources; encourages multiobjective management; and focuses on partnerships among and between local government, private companies, federal government, nonprofits, and citizen groups for funding solutions.80 U.S. General Accounting Office (GAO) Studies Federal Impacts at Local Level In 2000, at the request of members of Congress, the GAO conducted a survey of local community officials to, among other things, determine the level of interest in federal policy options affecting planning for and managing growth in their communities. The following options, which support the goals of sustainable land use, received a favorable response from more than 50% of the respondents: require that federal funding for roads and highways be linked with local land use plans; increase incentives for local governments to pursue "smart growth" target funding for infrastructure to areas designated for growth; and provide more incentives for communities to pursue regional solutions to managing growth.81 Acknowledging up front that "compared with state and local governments, the federal government has a relatively small influence on local efforts to plan for and manage growth," the report emphasizes that the options supported by local officials discussed above present opportunities for federal influence over state and local decision-making.82 This is an important message for the federal government, as it confirms that local governments acknowledge—and even welcome—a carefully tailored federal role that promotes sustainable land development through funding linked to appropriate local plans. Walking the Talk: How Far Has the National Effort to Achieve Sustainable Land Development Advanced? From a sustainability perspective, at the national level Washington needs to take more positive action steps to implement policies and programs that will actually produce sustainable land development in the states and localities. While it is true that the smart growth movement and the work and goals of Agenda 21 have sparked an interest in reform efforts at the national level, in the final analysis we have a lot of talk and very slow action. Task forces, committees, studies, proposed regulations, and proposed legislation is where we remain 10 years later. Those who study the art of law making may not be surprised, as the process tends to be slow and deliberative, encompassing many stages—drafting, public participation, political negotiations, redrafting, more negotiation—before a final policy/law is adopted. Sustainable land development, while clearly on the national radar screen, is not viewed as an issue of crisis proportion, and therefore, it does not carry the political clout necessary for a quicker response. The only good news is that as each year goes by, the momentum continues to build as more and more lawmakers and policymakers are educated about the challenges to and opportunities for sustainable land development. The Role of State Governments as an Enabler of Sustainable Land Development Although interest and involvement (including fiscal support) from the federal government is important in the quest to achieve sustainable land development, given our system of land use controls, the activities and decisions at the state level are more critical. While in the final analysis much of land use decisionmaking is left to the local governments, the fact remains that state government can heavily influence and direct local sustainable land development. This is accomplished through statutory authority, regulatory controls, and funding that rewards desired behaviors. Prior to 1992, there was uncoordinated activity in some states to experiment with various forms of regional land use planning. These intergovernmental approaches often focused on one significant natural resource that geographically spanned more than one political jurisdiction, or one emphasized significant geographic region that shared a common goal, e.g., the creation and preservation of a greenway. While there were some state-level comprehensive land use planning reforms prior to 1992, the last decade has witnessed an unprecedented level of attention and activity at the state level that continues to demonstrate movement toward sustainable land development. State Governments Assume a Smart Growth Leadership Position With the lack of political leadership and clout to turn a bottom-up national program of land use control into a top-down system, the federal government has had to rely on the states to develop innovative strategies to entice local governments to promote concepts of sustainable land development. The United States has experienced "waves" of state growth management laws designed to address various aspects of the sustainability agenda. For example, in the 1970s, a number of states in the "first wave" of growth management laws pursued redefinition to local land use planning schemes that added statewide and/or regional regulatory dimensions to decisionmaking.83 The second wave of state growth management laws, in the 1980s, shifted the focus to systems that promoted more shared decisionmaking among and between different layers of government.84 The emphasis of the third wave, or the smart growth movement, can best be described as paralleling the sustainable development agenda with a comprehensive mixture of legislative and regulatory reform items designed to enhance quality of life. By 1997, almost one-half of the states (24) had still failed to update their planning and zoning enabling statutes, while 11 had made substantial revisions, eight had made moderate updates, and seven had made slight revisions.85 One method of measuring the effectiveness of these planning statutes is to determine the extent to which they require local governments to conduct land use planning—a significant technique for managing growth.86 A recent study by the APA revealed that only 15 states mandate local planning, another 25 conditionally mandate planning (local governments are required to have a plan only if they choose to create a planning commission), and fully 10 states make local planning entirely optional.87 The importance of the plan is further underscored [32 ELR 11394] when evaluating the "elements" that states require/suggest be included in the plan. For example, the APA study discovered that at least 25 states require/suggest that the following plan elements be addressed in local plans: land use, transportation, community facilities, agriculture, recreation, and housing.88 Less than one-half of the states requires a redevelopment and economic development element, and less than 20% of the states requires elements that address critical and sensitive areas, local coordination, urban growth limits, and air quality.89 To better ensure sustainability, more state governments must articulate a better framework that requires local plans, as well as elements to be addressed within those plans. Some of the more effective programs developed by the states in the last decade present a delicate balance of state-regional-local partnerships to create mutually desirable outcomes. While all of the plan elements discussed above are important, no one governmental unit can achieve sustainability through land use without the cooperation and respect of neighboring jurisdictions and of other levels of government with various overlapping jurisdiction. The remainder of this Article discusses attempts across the United States to deal with the effects of uncoordinated land use policies that have resulted in sprawl, environmental and land degradation, and development that is anything but sustainable. Although the resulting land use patterns cannot be instantly changed, corrective action is required immediately to address sustainability for the regions, the states, the country, and ultimately, the global environment. State Legislatures Exhibiting an Interest in Smart Growth Reform By the end of the 1990s, state legislatures across the country began demonstrating unprecedented interest in land use reform initiatives. For example, in 1999 alone, more than 1,000 land use law reform proposals were introduced in state legislatures across the country.90 Results from surveys into 2000 and 2001 legislative agendas yield similar results, indicating no slow down in the political desire to reform our 80-year-old models. Legislative Land Use Initiatives Promoting Principles of Sustainability States have taken different paths in their efforts to participate in meaningful smart growth/sustainable land use reform. Some states, such as New York, have undertaken a comprehensive recodification of state planning and zoning enabling statutes as advocated by the APA.91 The land use statute reform effort resulted in the authorization of a number of new state laws that provide the tools to local governments enabling communities to promote sustainable land use. Some of the tools enacted in New York include: measures to facilitate intermunicipal comprehensive planning and zoning92; incentive zoning allowing for the granting of increased development density in exchange for the provision by the developer of certain community amenities93; guidance with respect to the elements that should be included in a local comprehensive plan94; recodification of the laws enabling county and regional planning95; and the establishment of an interagency geographic information systems advisory council96 (that has yielded a user-friendly statewide Geographic Information Systems (GIS) Clearinghouse including a local government GIS cooperative). Under the guise of the smart growth movement, at least 15 states have promoted the recommendation of eliminating state subsidies that promote sprawl.97 Infill development has been addressed by numerous policies, including siting existing state government buildings and educational facilities in existing communities98; reducing regulatory burdens in designated areas99; and facilitating brownfields redevelopment.100 Preservation of farmland, open space, and areas of environmental and recreational significance are the most popular land use reform efforts and present a constant theme in state smart growth agendas. These efforts are supported by numerous strategies with efforts to promote private land conservation through a variety of incentive programs the preferred route to accomplishing these goals.101 Most states have also supported the promoting of the concept of regional and joint land use planning, but in almost all cases, the recommended approach focuses on voluntary participation with incentives to encourage such conduct.102 This is probably the single most important aspect of smart growth to state and local ability to substantially advance the sustainable development agenda, yet, reflective of the political landscape within which land use regulation has been practiced in the United States, it is politically popular to be "for it," but it is not as well supported when it comes to the implementation and the realization that to achieve meaningful results shared control over land use decisionmaking is required. The Governors Leading by Executive Order Achieving sustainable land development is a bipartisan issue. Governors often exercise their power to issue Executive Orders to take the lead in the policymaking process or, in some cases, to actually make policy.103 Governors in approximately one-half of the states have used this approach, resulting in public statements supporting and promoting sustainable development. Most of these orders, however, do little more than create study commissions and task forces. Table 1 lists the relevant orders. From a substantive standpoint, a majority of them recognize the critical need for land conservation. Nearly all express an interest in balancing economic growth while simultaneously achieving livable and/or quality communities. The high cost of unrestrained and unplanned growth is typically cited as a problem, as 14 of the orders note the effects of uncontrolled growth and its relation to the degrading of the environment, loss of open space, high costs to the state and communities, loss of valuable farmland, and myriad other hindrances to the long-term prospects of a safe, clean, and healthy region in which to live. Yet, a common theme expressed in the orders is the recognition of local government influence in the land use planning process. Few of the orders create substantive policies; rather they direct the formation of special task forces or commissions, or require certain interagency reports to be submitted either to the governor or a particular agency. Notable exceptions are Gov. Ruth Minner (D-Del.), who has directed all state agencies to complete an implementation plan to achieve the goals of the "Livable Delaware" agenda,104 and Maryland Governor Glendening, who directed state agencies to implement a smart growth agenda to combat the high financial, social, and environmental costs of sprawl.105 State Task Forces Study Smart Growth and Sustainable Development Beginning in the early 1990s, states began to appoint legislative and executive task forces or study commissions to explore the environmental, economic, and social challenges presented by uncontrolled and uncoordinated development of land. By the end of 2001, more than one-half of the states have explored options for reform. Table 2 shows the states, by year of the creation of the applicable task force. Almost all of the task forces have now reported, and collectively they have made approximately 160 recommendations designed to promote sustainable land use policies. Recommendations can be organized into the following categories: land use, conservation, citizen participation, technology, transportation, infrastructure, environment, and housing. These are identical and/or very similar to the issues identified in Agenda 21. In the area of land use, 15 state task forces recommended encouraging local governments to use comprehensive planning as a foundation for economic and community development.106 Nine recommended state funding to support comprehensive planning.107 Ten recommended the creation of interagency groups to provide advice about growth and land use to local governments.108 Ten state reports recommended encouraging shared services across municipal boundaries and the development of regional alliances.109 Nine reports recommended channeling growth into developed areas such as a cities and towns rather than into rural areas.110 Ten reports also suggested that the state government needed to organize as well by coordinating state planning development goals and policies.111 Thirteen reports recommended increasing citizen involvement in some way.112 Other notable land use recommendations, which although not widespread are clearly in support of implementing the goals of Agenda 21, are: decisionmakers should be cognizant of the impact of their decisions throughout a community, region, and state113; fast growing urban areas should develop "focused growth plans"114; taxation systems should be more efficient, equitable, and neutral to growth and development115; federal, state, local agencies and regional governments, and tribal governments should coordinate and cooperate116; and states should review growth management plans of other states.117 Turning to conservation strategies, 17 task forces recommended the continuation of funding for open space and farmland preservation.118 A variety of farmland protection strategies from tax incentives119 to conservation easement programs,120 transfer of development rights programs121 and open space districts122 were recommended. Recommendations in the area of transportation include encouraging community transportation planning and coordination123 and coordination of local land use and state [32 ELR 11396] transportation plans.124 In the area of infrastructure, task force recommendations included policies whereby development would occur at a rate that allows development to keep up125 and better defining the role and responsibility of state government with respect to development and infrastructure development to sustain and expand the economy.126 With respect to land use and the environment, recommendations included assisting farmers with the development and implementation of environmental plans addressing nutrient and water quality concerns,127 a streamlining of all state and local environmental efforts,128 a requirement that state, local, and tribal governments create comprehensive plans that cover air, solid waste, and wastewater, water resources, open space, transportation, land use, social and economic issues,129 and a regionalization of water planning to minimize loss of irrigated land and to protect animals.130 Lastly, with respect to affordable housing, almost every task force recommended collaboration among the private and nonprofit communities to assist low- and moderate-income residents in obtaining affordable housing by utilizing state and federal housing programs.131 Requiring comprehensive plans to address housing needs was also recommended.132 Collectively, 160 recommendations is commendable and many options for reform are critiqued and explained in nearly two dozen reports. The challenge now facing the states is to prevent these documents from becoming nothing more that a report filed to meet a deadline. Collectively, thousands of human hours went into the shaping of these recommendations—all meritorious and all tailored to advance the big picture effort of achieving sustainable land development. Mechanisms to sustain leadership for the implementation of these recommendations must be front and center on the gubernatorial and legislative political agendas. Ballot Initiatives in Support of Sustainable Land Use Development Another powerful weapon in the land use reform effort has been the use of citizen ballot initiatives in states where such initiatives are authorized. On election day 2000, 553 state and local ballot measures related to growth were proposed to voters in 38 states.133 Approximately one-half of the measures (44.7%) addressed open space preservation; just over one-quarter (26.1%) related to state and local infrastructure; managing growth was the subject of 16.3% of the measures; and 8.5% of the proposals targeted economic development.134 Judging by passage rates, the most popular proposals were those designed to preserve open space or to build and maintain parks and recreation facilities (of the 257 open space measures, 201 passed, representing a 78.2% approval rate).135 This trend parallels the findings in recent surveys of state government task force reports, Executive Orders, and legislative proposals. Also consistent with findings in the public sector, the 94 proposals to place regulatory restrictions on growth were both controversial and contentious, with statewide measures in Arizona, Colorado, and Oregon attracting national media attention and resulting in the greatest amount of campaign spending.136 There is a much greater level of activity in many of the individual states than at the national level. As with the federal government, there is clearly much talk and posturing taking place. The fact that there is bipartisan interest in reforming our current system of land use control at the state level is critical, since the primary intergovernmental relationship in this area rests on the dynamics of state-local partnerships and cooperation. While states are just starting to make significant statutory changes that offer the promise of promoting more sustainable land development practices, it will take even more time for these reforms to translate into observable and quantifiable changes in our neighborhoods and communities, as the education and information sharing periods only begin once the states have enabled the opportunity for changed behaviors. There is no easy overnight remedy to reverse the trends that have resulted in unsustainable development. Optimistically, however, the stage is being set in the states where local government officials and citizens will be able to begin to promote and approve better land development policies and decisions. Sustainable Land Use—The United States Still Has a Challenge to Meet the Goals In the last 10 years, the United States has begun to experience a major piecemeal overhaul in its land use system. The fragmented authority of government to control the use and development of land makes a federal and state analysis of legislative and regulatory trends in land use law reform critical to the determination of the extent of national compliance with the goals of Agenda 21. The nation continues to experiment with various land use reform techniques, which are currently grouped under the broad category of smart growth. Little has been documented or benchmarked with respect to actual meaningful progress toward accomplishing true sustainable land development through both vertical and horizontal consistency in decisionmaking. While the federal government has promoted sustainable land use policies through funding and technical assistance, the major responsibility rests with state governments to provide workable statutory frameworks that both enable and encourage local implementation of sustainable land development laws and policies. Through the smart growth movement, states [32 ELR 11397] are just starting to do their part to at least "talk the talk" of sustainable land use. States and the political jurisdictions therein will need to make significant reforms as outlined in task force recommendations to "walk the talk" to truly create sustainable communities where economic, environmental, and social policies are fairly integrated into the decision-making landscape. Evidence of some progress is beginning to be witnessed, as outlined in this Article, but this progress is simply the first step to creating the legal framework within which such goals can be achieved. Once the legal structure is in place, effective implementation of sustainable land development strategies must follow. The statutory and regulatory climate is slowly changing. Not enough time has elapsed to fairly assess whether any of the smart growth reforms are making a meaningful difference. Furthermore, the extent to which states are integrating the cross-disciplinary recommendations appears to be disappointing. States are still focusing on reforms in one subject area at a time, yet sustainability necessitates an across-the-board integration of environmental, housing, economic, social, transportation, agricultural, and other development issues. Ongoing benchmarking and critiques of the effectiveness of various approaches must continue with the information being shared among localities and states. Recommendations to Realize the Implementation of Agenda 21 Sustaining leadership for and interest in meaningful land use reform is the greatest challenge that confronts the sustainable land development agenda during the early part of the 21st century. While it takes time and patience to refine and secure the passage of needed legislation and regulations to promote smarter land use decisions, and most of this time is spent on dialogue, education, and coalition building, the smart growth movement has already proven to have out-lasted (by length of time on the political agenda) all of the historical efforts to reform land use planning and decision-making. Advocates must be careful to prevent smart growth discussions from turning into a "thing of the past"—other-wise, the gains that have been realized will stagnate. Addressing Regionalism and Home Rule Effective land use reform will require state governments to address the "hot button" issue of home rule control and to re-examine lessons learned through a long history of purely local land use decisionmaking. States must lead the way by creating a new culture of cooperative and intergovernmental decisionmaking to achieve a truly integrated land development system. This means that governors and legislative leaders will have to start to change business as usual via statutory reforms, Executive Orders, and strategic program funding. The easiest method of facilitating a bottom-up culture change is through the funding aspect of programs, where localities are awarded state assistance only when their programs demonstrate regional vision, consideration, and input. In addition to the provision of direct funding to support any number of programs that promote sustained land development practices, state governments can award bonus points onto existing block grant program applications, and applications for funding for initiative in the areas of economic development, open space, housing, agricultural preservation, and other environmental programs. What is really needed is a way to change behaviors using as many incentives as possible. Getting the Statehouse in Order Issues of vertical and horizontal consistency are not just for local governments. States must make certain that there is adequate and effective state-level interagency cooperation and coordination. Governors must take the lead on this through the use of an Executive Order to designate a cabinet-level member who will be responsible for ensuring sustainable development. While he/she could be an existing agency commissioner, this person should ideally be a lieutenant governor or some other individual who is not likely to be perceived as having "turf" issues between his/her agency and other cooperating agencies. Sustainable land development requires that environmental, housing, agricultural, economic, energy, transportation, and social services agencies work together to develop and implement complimentary approaches to problem-solving that will not contribute to further environmental degradation. Furthermore, once each state designates a "sustainable development coordinator," these individuals should meet at least annually and share information, studies, and reports through e-mail and other technology-based methods. While each state may have a unique history, geography, and "sense of place," the policy principles that underlie effective sustainable land development are similar. In addition, states must begin to actually implement some of the "smart growth" recommendations that have emerged from the various task forces. Related to the need for sustained leadership, there must be a commitment to take action on these items and not simply let them rest in the contents of another "shelf document." Too much is at stake, and the recommendations, as outlined in Table 2, do in fact represent the future of fully integrated, cross-disciplinary sustainable land development policies. Taken as a whole, when recommendations from various "subject areas" are combined to form a workable policy or sustainability strategy, the individual states and the nation will move farther in implementing the land development principles and goals outlined in Agenda 21. Realignment of Federal Policies and Influences Just as important as the local and state roles, the federal government is a key strategic partner in the quest to achieve better sustainability in land development. As previously noted, the federal government does heavily influence land development patterns through its transportation and environmental policies and programs. If there is no funding for infrastructure in targeted or designated areas, development is less likely to occur. Therefore, the present Administration must bring back the now-defunct PCSD. A newly constituted PCSD must, however, do more than merely issue studies and reports. The revived PCSD must evaluate and critique federal policies and programs that impact on the ability to achieve sustainability, and make recommendations that can and will be implemented in order to advance the agenda of better balanced competing interests and factors [32 ELR 11398] that contribute to land development and settlement patterns. The PCSD could serve as the federal coordinating entity for sustainable land development, or the president could designate a cabinet-level coordinating position to function similarly to the recommended state-level coordinator. This visible cabinet-level position should coordinate and report on all federal agency activities with respect to sustainable land use development. These reports will foster information sharing among the agencies and among the states and localities. Just as advocacy groups may issue a "report card" on how the federal government is doing with respect to progress on sustainable land use, the federal government should conduct annual or biannual self-assessments. This type of reporting necessarily aids in keeping the issues in front of the agency policymakers who must routinely respond to requests for information. National sustainable development conferences should be an annual event, with regional spin-offs at which the federal agencies, along with state and local governments, can showcase model programs designed to achieve sustainable land development. More people would be able to access four to eight regional programs as opposed to just one national event. In addition to the exhibit area at which the public, private, and nonprofit sectors would demonstrate their successes, workshops should be offered to further educate and train key stakeholders and decisionmakers. Another alternative would be to create the "White House Conference on Sustainable Development," modeled on the previous White House Conferences on Aging. Although the major national event would be a multiday Washington, D.C., conference for which each state sends delegates, the federal government could fund "mini-conferences" across the country that focus on identified subject matters such as sustainable land development. Organizers of the regional conferences would then report program outcomes to a national office in advance of the larger conference, so that attendees have the benefit of findings and recommendations generated across the country. Whether or not there is a document labeled "national sustainable land use development plan," the fact remains that the federal government has the greatest access to fiscal resources that can be used to entice state and local governments to behave in a certain way. For example, funding to the states for programs such as the Coastal Zone Management Program could require that the states submit plans to achieve sustainable land use development within the confines of the regulatory scheme. The states would, in turn, pass this requirement through to the local governments. By using programs that are optional, in which states and localities only get paid if they play by the program rules, this becomes less of a mandate and more of an incentive for voluntary compliance. There are dozens of programs in which the federal government could easily influence the more rapid development of state and local sustainable land use plans. Another significant federal contribution rests with the passage of the Community Character Act. This proposed legislation, discussed hereinabove, is a key to providing directed fiscal support to incentivize the development of statewide comprehensive land development plans and/or meaningful state-level land use planning and decisionmaking statutes. The Act must be enacted as a critical initiative to provide the needed incentive for states to sustain leadership and interest in modernizing their planning and zoning enabling statutes; such steps will, in turn, result in additional examples of sustainable and use planning and development. The greatest power state and federal governments wield to promote smart growth and sustainable land development patterns is the power of the purse. Governments must target spending to initiatives and programs that promote urban renewal and infill. Revitalizing our cities, which were designed to accommodate dense development, will contribute to a reengineering of population settlement patterns, thus impacting significantly on land development. Builders will not build on land where there is no market for their products. Government spending can assist in reopening the urban markets to make them much more attractive to builders and developers. By investing in our cities as a priority, governments can ignite efforts to rehabilitate our mixed-use, mixed-income urban housing stock, ensure that needed infrastructure repairs and enhancements are made to existing roads, highways, bridges, and water and sewer systems, rather than ignoring what is already in place in favor of building anew elsewhere, and slow sprawl development since without government subsidies it would no longer be cost effective to develop our diminishing green space. Policymakers and lawmakers in the United States are beginning to move toward the implementation of sustainable land development policies. As noted in this Article, there is still a gap between the talk of reform and the actual implementation of reforms. The greatest challenge to overcome is a history and culture of fragmented control that, while resulting in sprawl and nonsustainable land development practices, represents governance and decisionmaking at the grassroots level. Although it is true that federal government policies and programs historically supported and encouraged sprawl through, for example, the building of highways and roads, the smart growth movement has helped to expose these transgressions and to offer alternative policies that will foster greater sustainability. Integrated cooperation and coordination among and between all levels of government remains the key to success. We are not there yet, but at least a path is being plowed to take us on an exciting and challenging journey to achieving sustainable land development. Table 1 Gubernatorial Executive Orders to Address Smart Growth/Sustainable Land Use
Table 2
2. See AGENDA 21: EARTH'S ACTION PLAN (Nicholas A. Robinson ed., 1993). 3. See Jerold S. Kayden, National Land-Use Planning in America: Something Whose Time Has Never Come, 3 WASH. U. J. L. & POL'Y 445 (2000). Kayden admits that Americans readily accept that in, order of importance, land use decisionmaking is first local, then state, and only then federal, a notion that is contrary to the international land use experience which is characterized by national land use policies. Kayden goes on to assert that "it becomes worthwhile to explore anew the nature of our land-use planning and regulatory system." He opines that it is unlikely that a comprehensive national effort will emerge in the United States in the near future. Id. at 472. 4. Paul Simon, Introduction, in AGENDA 21: THE EARTH SUMMIT STRATEGY TO SAVE OUR PLANET, x (Daniel Sitarz ed., 1994). 5. Agenda 21, supra note 1, P8.5(g). 6. Michael B. Gerrard, Environmental Justice and Local Land Use Decisionmaking ch. 6, in TRENDS IN LAND USE LAW FROM A TO Z: ADULT USES TO ZONING (Patricia E. Salkin ed., 2001). "From the late nineteenth century until well after the enactment of the Civil Rights Act of 1964, the property regulation, planning, and zoning policies of many cities around the country had what must be called a negative impact on [environmental justice]." Id. at 137. 7. Specifically, Paragraph 8.3 of Agenda 21 calls for the improvement or restructuring of the decisionmaking process so that "consideration of the socio-economic and environmental issues is fully integrated and a broader range of public participation is assured." Agenda 21, supra note 1, P8.3. 8. SMART GROWTH NETWORK, GETTING TO SMART GROWTH: 100 POLICIES FOR IMPLEMENTATION (2002). 9. See Vicki Been, Comment on Beatley and Collins' Smart Growth and Beyond: Transitioning to a Sustainable Community, 19 VA. ENVTL. L.J. 323 (2000). Professor Been argues that although Timothy Beatley and Richard Collins (see Timothy Beatley & Richard Collins, Smart Growth and Beyond: Transitioning to a Sustainable Community, 19 VA. ENVTL. L.J. 287 (2000)) may have correctly asserted that the smart growth movement has stopped short of embracing all of the principles that encompass a comprehensive sustainable development strategy, smart growth does in fact have more to offer proponents of sustainable development. She points out that some of the criticisms lodged against smart growth can be viewed more appropriately as market failures to the extent that various consumption patterns have not yet been altered. 10. DENNY JOHNSON ET AL., PLANNING FOR SMART GROWTH: 2002 STATE OF THE STATES (American Plan. Ass'n 2002), available at http://www.planning.org (last visited Apr. 20, 2002). This report documents the dramatic increase, in both the executive and legislative branches, of state-level smart growth reform activity. For example, approximately 25% of the states are implementing statewide comprehensive planning reforms; approximately 20% of the states are pursuing strategies to address and improve interjurisdictional land use reforms; and approximately 30% of the states are, for the first time, actively pursuing smart growth reforms. Id. at 7. 11. See, e.g., John Harte, Land Use, Biodiversity, and Ecosystem Integrity: The Challenge of Preserving Earth's Support System, 27 ECOLOGY L.Q. 929 (2001), where Professor Harte explains how private land use rights in the United States are passionately held. He says but for land use situations "that impose tangible aesthetic or safety impacts on our neighbors or involve some other clearly identified public interest at stake . . . the widely held view that land ownership is inviolate and that we can do what we wish on our own land is the prevailing view." Id. at 954. 12. JULIAN C. JUERGENSMEYER & THOMAS E. ROBERTS, LAND USE PLANNING AND CONTROL LAW § 4.2 (1998). 13. See Oliver A. Pollard III, Smart Growth: The Promise, Politics, and Potential Pitfalls of Emerging Growth Management Strategies, 19 VA. ENVTL. L.J. 247 (2000) (noting that "the property rights movement has complained that public laws excessively intrude on private property rights, and that judicial protection has been inadequate . . . and that the movement has had a chilling effect on growth management efforts"). 14. See Terry L. Anderson & J. Bishop Grewell, From Local to Global Property: Privatizing the Global Environment?: Property Rights Solutions for the Global Commons: Bottom-Up or Top-Down?, 10 DUKE ENVTL. L. & POL'Y F. 73 (1999). The authors explain, among other things, how our bottom-up system or local evolution of property rights was developed, and they assert that to change this for greater common good, local governments and states will have to accept decisions from higher levels of government. 15. ROBERT WRIGHT & MORTON GITTELMAN, LAND USE 11-16 (4th ed. 2000). 16. ROBERT BURCHELL ET AL., THE COSTS OF SPRAWL — REVISITED, REPORT NO. 39 (Transportation Res. Bd. 1998). 17. Id. at 7. Section III of this comprehensive study reviews and annotates some of the significant studies and reports published on sprawl. Among the alleged negative effects of sprawl, the authors reference fostering of suburban exclusion, spatial mismatch, and racial segregation, and the worsening of city fiscal distress and of inner-city deterioration. In the column of alleged positive impacts, the authors cite to the promotion of local land use decisions and enhancing inner-city deterioration. Id. at 104. 18. Id. at 4. 19. Id. (citing John D. Landis, Imaging Land Use Futures: Applying the California Urban Futures Model, 61 J. AM. PLAN. ASS'N 438 (1995)). 20. SPRAWL: THE DARK SIDE OF THE AMERICAN DREAM (Sierra Club 1998), available at http://www.sierraclub.org/sprawl/reports98/report.asp (last visited Apr. 20, 2002). 21. See JOHN R. NOLON, WELL GROUNDED: USING LOCAL LAND USE AUTHORITY TO ACHIEVE SMART GROWTH (Envtl. L. Inst. 2001); FRANK S. SO & JUDITH GETZELS, THE PRACTICE OF LOCAL GOVERNMENT PLANNING 252 (International City/County Management Ass'n 1988). 22. KENNETH YOUNG, ANDERSON'S AMERICAN LAW OF ZONING § 1.07 (4th ed. 1996). This board ceased to exist in the 1940s. 23. See Joseph G. Hylton, Prelude to Euclid: The United States Supreme Court and the Constitutionality of Land Use Regulation, 3 WASH. U. J. L. & POL'Y 1 (2000). Professor Hylton explains the early land use decisions of the Fuller and White courts which often upheld state regulation of land. These decisions are not as well known as the string of Court decisions in the 1920s that are textbook reading for students of land use planning and zoning (Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922); Village of Euclid v. Ambler Realty, 272 U.S. 365 (1926); Miller v. Schoene, 276 U.S. 272 (1928); and Nectow v. City of Cambridge, 277 U.S. 183 (1928)). 24. See Robert F. Rooney, Environmental Economics, 1 UCLA J. ENVTL. L. & POL'Y 47 (1980). Professor Rooney asserts that "market failure exists whenever normal functioning of the market does not result in maximizing the value of the nation's capital, labor and natural resources." Id. at 66. Indeed, as one commentator offers, "the nub of free market proposals is that unwieldy state regulations should yield to private property rights in environmental goods and the market's 'invisible hand.'" Norman W. Spaulding III, Commodification and Its Discontents: Environmentalism and the Promise of Market Incentives, 16 STAN. ENVTL. L.J. 293 (1997). 25. 40 U.S.C. § 461 (1954) (repealed 1981). See also JOHN C. WHITAKER, STRIKING A BALANCE, ENVIRONMENTAL AND NATURAL RESOURCES POLICY IN THE NIXON-FORD YEARS (1976); Charles E. Connerly & Marc Smith, Developing a Fair Share Housing Policy for Florida, 12 J. LAND USE & ENVTL. L. 63 (1996). 26. See MARK SOLOF, HISTORY OF METROPOLITAN PLANNING ORGANIZATIONS — PART II 4 (1998). 27. Pub. L. No. 91 - 190, 83 Stat. 852 (1970); 42 U.S.C. §§ 4321-4347, ELR STAT. NEPA §§ 2-209. 28. PETER W. SALSICH JR. & TIMOTHY J. TRYNIECI, LAND USE REGULATION: A LEGAL ANALYSIS AND PRACTICAL APPLICATION OF LAND USE LAW 376 (1998). The authors point out that the Court has articulated the differences between land use and environmental regulation as follows: "Land use planning in essence chooses particular uses for the land; environmental regulation, at its core, does not mandate particular uses of the land but requires only that, however the land is used, damage to the environment is kept within prescribed limits." Id. (citing California Coastal Comm'n v. Granite Rock Co., 480 U.S. 572, 17 ELR 20563 (1989)). 29. REAL ESTATE RESEARCH CORP., THE COSTS OF SPRAWL (U.S. Gov't Printing Office 1974). 30. NATIONAL AGRICULTURAL LANDS STUDY (U.S. Gov't Printing Office 1981). 31. 147 CONG. REC. E729 (May 3, 2001). 32. See John R. Nolon, The National Land Use Policy Act, 13 PACEENVTL. L. REV. 519 (1996) (citing the NLUPA, S. 3354, 91st Cong. (1970)). 33. Id. at 520. 34. For example, the Fair Housing Act Amendments of 1988 significantly preempted local decisionmaking over the siting of group homes and housing for persons with disabilities; the Americans With Disabilities Act, enacted in 1990, has been held by the federal circuit courts to preempt local zoning; the Telecommunications Act of 1996 has had a major influence over the siting of local wireless communication facilities (although the Act is not necessarily preemptive, it places significant controls and safeguards to ensure prompt local action); the Clean Air Act and the Clean Water Act have required, among other things, state implementation plans (SIPs) to deal with the multijurisdictional challenges of achieving and protecting air and water quality, and the Intermodal Surface Transportation Efficiency Act (ISTEA) and its successor, TEA-21, have done much to fund regional (not local) transportation planning and implementation of capital projects. 35. See, e.g., Patricia E. Salkin, Smart Growth at Century's End: The State of the States, 31 URB. LAW. 601 (1999); Patricia E. Salkin, Land Use Reforms by the Thousands, in PLANNING FOR THE 21ST CENTURY (American Plan. Ass'n 1999) [hereinafter Salkin, Thousands]; Pollard, supra note 13. 36. See Jason C. Rylander, The Emerging Federal Role in Growth Management, 15 J. LAND USE & ENVTL. L. 277 (2000); Patricia E. Salkin, Federalism and Land Use Reform: Threads of a National Policy Provide Opportunities for States (paper prepared for the National Governors Ass'n 2001). 37. See http://www.sustainsable.doe.gov/landuse/luintro.shtml (last visited June 13, 2001). 38. Remarks prepared for Delivery to the Partners for Smart Growth Conference, U.S. EPA Deputy Administrator Fred Hansen, Dec. 2, 1997. 39. See http://www.susdev.noaa.gov/ (last visited Apr. 20, 2002). 40. See U.S. HUD, Hope VI, available at http://www.hud.gov/pih/programs/ph/hope6/history_8-8-00.pdf (last visited Oct. 2001). 41. See U.S. DOT, Transportation and Community System Preservation Program, at http://www.dot.gov/affairs/1999/fhwa3299.htm (last visited Apr. 20, 2002). 42. See http://www.nrcs.usda.gov/nrcsprog.html#anchor-farmland (last visited Oct. 2001). 43. See http://www.planning.org/plnginfo/GROWSMAR/gsindex.html (last visited Oct. 2001). The APA Growing Smart Initiative has been supported by funding from the following: U.S. HUD, the Henry M. Jackson Foundation, the Annie E. Casey Foundation, Siemens Corporation, EPA, Federal Highway Administration (U.S. DOT), Federal Transit Administration (U.S. DOT), Federal Emergency Management Agency, Rural Economic and Community Development Administration (U.S. Department of Agriculture), and the APA. The initiative, staffed in Chicago, is advised by a directorate of stake-holder interests who have periodically met to review and comment on drafts. 44. See http://www.planning.org/plnginfo/GROWSMAR/probac.htm (last visited Oct. 2001). According to nationally syndicated columnist Neal Pearce, this landmark planning guide has the potential to remake America's future, referring to the Growing Smart package as "an extraordinary gift to the nation-tools we need to cope with a tidal wave of development . . . ." His column further reports that Americans do not like our present world of disjointed subdivisions, strip malls, office parks, and clogged arteries. Citing Stuart Meck, FAICP, the Prinicpal Investigator for Growing Smart, Pearce reports that the culprit for the unhappy development is "the continued reliance on the standard city planning and zoning laws which most states approved back in the 1920s . . . ." Neal Pearce, Landmark Planning Guide May Remake America's Future, syndicated column, Feb. 11, 2002, available at http://www.postwritersgroup.com/archives/peir0211.htm) (last visited Apr. 10, 2002). 45. STUART MECK, FAICP, GROWING SMART LEGISLATIVE GUIDEBOOK: MODEL STATUTES FOR PLANNING AND THE MANAGEMENT OF CHANGE (American Plan. Ass'n 2002). The two-volume guidebook is available at http://www.planning.org (last visited Feb. 26, 2002). 46. Id. 47. Id. 48. See http://www.smartgrowth.org (last visited Apr. 20, 2002). 49. See http://www.susdev.noaa.gov/pcsd.html (last visited Apr. 20, 2002). 50. PCSD, SUSTAINABLE AMERICA: A NEW CONSENSUS FOR PROSPERITY, OPPORTUNITY, AND A HEALTHY ENVIRONMENT FOR THE FUTURE (1996), at Ch. 4 ("Strengthening Communities"), available at http://clinton2.nara.gov/PCSD/Publications/tsa.pdf (last visited Apr. 20, 2002). 51. A REPORT FROM THE CLINTON-GORE ADMINISTRATION, BUILDING LIVABLE COMMUNITIES: SUSTAINING PROSPERITY, IMPROVING QUALITY OF LIFE, BUILDING A SENSE OF COMMUNITY (rev. June 2000), available at http://web.archive.org/web/20000815065307/http://www.liveablecommunities.gov/report2k.htm (last visited Apr. 10, 2002). 52. The tragic events of September 11, 2001, have certainly had an impact on the national and state agendas. Although the environment and smart growth continue to remain on the list of priority issues, the war and homeland security as well as other policy issues emanating from the tragedy have necessarily overshadowed the political agenda. 53. Robert R. Kuehn, A Taxonomy of Environmental Justice, 30 ELR 10681 (Sept. 2001); Robert Bullard, Leveling the Playing Field Through Environmental Justice, 23 VT. L. REV. 453 (1999). See also Paul M. Hendrick, Racism in American Land Use Decisions: The Slicing of the American Pie, 2 FLA. COASTAL L.J. 395 (2001). 54. See Eileen Gauna, EPA at 30: Fairness in Environmental Protection, 31 ELR 10528 (May 2001); Robert W. Collin & Robin Morris Collin, Sustainability and Environmental Justice: Is the Future Clean and Black?, 31 ELR 10968 (Aug. 2001); Bradford C. Mank, The Draft Title VI Recipient Investigation Guidances: Too Much Discretion for EPA and a More Difficult Standard for Complainants?, 30 ELR 11144 (Dec. 2000) (discussing EPA's response to EJ issues). 55. See Shelia R. Foster, Meeting the Environmental Justice Challenge: Evolving Norms in Environmental Decisionmaking, 30 ELR 10992 (Nov. 2000). 56. See Denis Binder et al., A Survey of Federal Agency Response to President Clinton's Executive Order No. 12898 on Environmental Justice, 30 ELR 11133 (Oct. 2001) (summarizing measures taken by agencies other than EPA in studying EJ issues). 57. Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, Exec. Order No. 12898, 3 C.F.R. § 859 (1995), ADMIN. MAT. 45075. 58. Gerrard, supra note 6. 59. U.S. EPA, GUIDANCE FOR INCORPORATING ENVIRONMENTAL JUSTICE CONCERNS IN EPA'S NEPA COMPLIANCE ANALYSIS (1998) (available from the ELR Document Service, ELR Order No. AD-3856). 60. H.R. 1510, 106th Cong. (1999), introduced by Rep. John Lewis (D-Ga.). See 145 CONG. REC. E733-01. 61. See, e.g., Foster, supra note 55; Gauna, supra note 54; Bullard, supra note 53, at 463. 62. See, e.g., U.S. EPA, Environmental Justice Grants to Small Community Groups, at http://www.epa.gov/owowwtrl/watershed/wacademy/fund/envjustice.html (last visited Apr. 20, 2002). 63. See Mank, supra note 54. 64. But see Bradford C. Mank, South Camden Citizens in Action v. New Jersey Department of Environmental Protection: Will Section 1983 Save Title VI Disparate Impact Suits?, 32 ELR 10454 (Apr. 2002) (detailing recent judicial setbacks). 65. NATIONAL GOVERNOR'S ASS'N (NGA), HOW SMART GROWTH CAN ADDRESS ENVIRONMENTAL JUSTICE ISSUES (NGA Center for Best Practices Issue Brief 2001), available at http://www.nga.org/center/divisions/1,1188,C_ISSUE_BRIEFD_2071,00,html (last visited Apr. 20, 2002). 66. S.B. 115 (enacted in 1998). Several state initiatives are detailed in John Milner & John Turner, Environmental Justice, NAT. RESOURCES & ENV'T, Winter 1999, at 478. 67. Ch. 728 of the Cal. Laws of 2000. 68. See http://www.state.ma.us./dep/bwp/dswm/mplan/swmp.doc (last visited Oct. 2001). 69. See http://www.state.tn.us./environment/ej/index.html (last visited Oct. 2001). 70. See http://www.state.nj.us./dep/seeds/equin.htm (last visited Oct. 2001). More recently, the New Jersey Department of Environmental Protection (NJDEP) proposed incorporating EJ principles into the permitting process, through mandatory community outreach and impact analysis requirements on major facilities seeking new permits, permit renewals, or permit modifications. See NJDEP, Notice of Rule Proposal, Proposed New Rules, N.J.A.C. §§ 7:1F-1, 7:1F-2, Expanded Community Participation Process for Environmental Equity, 34 N.J. Reg. 665(a) (Feb. 4, 2002), at http://www.state.nj.us/dep/rules/notices/020402b.html (last visited Apr. 20, 2002); Mank, supra note 64, at 10479; Brian S. Montag, Environmental Equity Regulations: NJDEP Proposes New Rules and Amendments to Effectuate Environmental Equity Policies (February 2002), ELR Online service, available at http://www.elr.info/State/New%20Jersey/montag.htm (last visited Apr. 20, 2002). 71. Exec. Order No. 01.01.2001.01 (Mar. 9, 2001), available at http://www.gov.state.md.us/gov/execords/2001/html/0101eo.html (last visited Apr. 20, 2002). 72. See Foster, supra note 55. 73. H.R. 1433, 107th Cong. (2001); S. 975, 107th Cong. (2001). This proposal is essentially the same as the Community Character Act of 2000, S. 2995, 106th Cong. (2000). 74. The Act makes the following findings in Section 2: (1) inadequate land use planning at the State and tribal levels contributes to— (a) increased public and private capital costs for public works infrastructure development; (b) environmental degradation; (c) weakened regional economic development; and (d) loss of community character (2) land use planning is rightfully within the jurisdiction of State, tribal and local governments; (3) comprehensive land use planning and community development should be supported by the Federal, State and tribal governments; (4) State and tribal governments should provide a proper climate and context through legislation in order for appropriate comprehensive land use planning, community development, and environmental protection to occur; (5) (A) many States and tribal governments have outmoded land use planning legislation, and (B) many States and tribal governments are undertaking efforts to update and reform land use planning legislation; (6) the federal government and States should support the efforts of tribal governments to develop and implement land use plans to improve environmental protection, housing opportunities and socioeconomic conditions for Indian tribes; and (7) the coordination of use of State and tribal resources with local land use plans require additional planning at the State and tribal levels. 75. S. 2995, 106th Cong. § 4 (2000). 76. See, e.g., 1 MODERNIZING STATE PLANNING STATUTES: THE GROWING SMART WORKING PAPERS (1996), which contains papers including: "Reforming the Federal, State, and Local Land Use Regulation Connection," "Interlocal Approaches to Land Use Decisionmaking," "State Agency Coordination in State Growth Management Programs," "State and Regional Roles in Transportation and Land Use," and "State and Regional Fair Share Housing Planning." See also 2 MODERNIZING STATE PLANNING STATUTES: THE GROWING SMART WORKING PAPERS (1998) [hereinafter MODERNIZING] which contains papers including: "Toward Modern Statutes: A Survey of State Laws on Local Land-Use Planning," "Toward Model Statutes for the Economic Development of a Comprehensive Plan," "Toward a Model Statutory Plan Element: Transportation," "Creating Effective State and Local Telecommunications Plans, Regulations, and Networks: Models and Recommendations," "Melding State Environmental Policy Acts With Land Use Planning and Regulation," and "Model-Acts: Integrating Federal Permitting With Local Land Use Planning and Regulation." 77. See http://www.nemw.org/SGsenate.htm (last visited Apr. 20, 2002). Task force members in the 106th Congress include 15 Democrats and 9 Republicans from 18 states. 78. See U.S. House of Representatives, Caucus Information, at http://www.house.gov/meehan/sdc.about.htm (last visited Apr. 20, 2002). The House Sustainable Development Caucus is co-chaired by Rep. Marty Meehan (D-Mass.) and Wayne Gilchrest (R-Md.), with representation from more than two dozen states. 79. Id. The House Sustainable Development Caucus has identified the following sustainable development issues: urban sprawl and loss of open space; transportation planning; brownfields redevelopment and urban revitalization; sustainable taxation policies; reduction of nonsustainable subsidies; post-disaster rebuilding; watershed-based planning efforts; and renewable energy and energy conservation. Id. 80. U.S. House of Representatives, Rep. Earl Blumenauer, Livable Communities Task Force, at http://www.house.gov/blumenauer/lctf.html (last visited Apr. 20, 2002). 81. U.S. GAO, LOCAL GROWTH ISSUES—FEDERAL OPPORTUNITIES AND CHALLENGES (2000) (GAO/RCED-00-178). 82. Id. at 9-11. 83. See, e.g., Brian Ohm, Reforming Land Planning Legislation at the Dawn of the 21st Century—The Emerging Influence of Smart Growth and Livable Communities, 32 URB. LAW. 181, 187 n.38 (2000) (references to state legislative initiatives in nine states). 84. Id. 85. Rodney L. Cobb, Toward Modern Statutes: A Survey of State Laws on Local Land Use Planning, in MODERNIZING, supra note 76, at 22. 86. Id. at 23. 87. Id. 88. Id. at 25. 89. Id. 90. Salkin, Thousands, supra note 35. 91. Patricia E. Salkin, The Politics of Land Use Reform in New York: Challenges and Opportunities, 73 ST. JOHN'S L. REV. 1041 (1999). Beginning in 1989, and continuing to the present, the Land Use Advisory Committee to the Legislative Commission on Rural Resources has helped to develop and advocate for over 30 new changes to planning and zoning enabling acts. See also John N. Nolon, Local Land Use Controls That Achieve Smart Growth, 31 ELR 11023 (Oct. 2001). 92. Ch. 724, 1992 N.Y. Sess. Laws; Ch. 242, 1993 N.Y. Sess. Laws. These measures are discussed in NOLON, supra note 21. 93. Ch. 629, 1991 N.Y. Sess. Laws; Ch. 247 1992 N.Y. Sess. Laws. 94. Ch. 209, 1993 N.Y. Sess. Laws. 95. Ch. 451, 1997 N.Y. Sess. Laws. 96. Ch. 564, 1994 N.Y. Sess. Laws. 97. ED BOLEN ET AL., SMART GROWTH: STATE BY STATE (U.C. Hastings Pub. L. Res. Inst. 2001), available at http://www.uchastings.edu/plri/spring2001.PDF (last visited Apr. 20, 2002). These states include: Arizona, Colorado, Connecticut, Delaware, Florida, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, Ohio, Rhode Island, South Carolina, Washington, and West Virginia. 98. Id. These states include: California, Maine, Maryland, New Hampshire, New York, Oregon, and Tennessee. 99. Id. This approach has been promoted in several states, including: Colorado, Florida, Georgia, Maine, Maryland, New Jersey, and Pennsylvania. 100. Id. Many states have started to aggressively promote brownfield redevelopment programs to coincide with land use efforts. These states include: Colorado, Connecticut, Illinois, Maryland, Massachusetts, Michigan, Missouri, New York, Ohio, Pennsylvania, and Wisconsin. 101. See Patricia E. Salkin et al., Conservation of Private Lands: Opportunities and Challenges for the States (paper prepared for the National Governors Ass'n 2001), at http://www.nga.org/cda/files/LANDSPRIV.pdf (last visited Apr. 20, 2002). 102. BOLEN ET AL., supra note 97, at 8. 103. E. Lee Bernick & Charles W. Wiggins, The Governor's Executive Order: An Unknown Power, ST. & LOCAL GOV'TS, 1984. 104. Exec. Order No. 14-2001. The Executive Order was issued to address the concern of Delaware's citizens regarding uncontrolled sprawl and subsequent loss of open space, farmland, shortage of affordable housing, and poor water quality. 105. Exec. Order No. 10.01.1998.04 (1998). 106. California, Florida, Illinois, Iowa, Maine, Minnesota, New York, North Carolina, Ohio, Oregon, Pennsylvania, Vermont, Virginia, Washington, and Wisconsin. 107. Arizona, Colorado, Illinois, Minnesota, New Hampshire, New York, North Carolina, Pennsylvania, and Virginia. 108. California, Colorado, Florida, Iowa, Michigan, Minnesota, New York, North Carolina, Pennsylvania, and Utah. 109. Arizona, Colorado, Florida, Massachusetts, Michigan, New York, North Carolina, Oregon, Pennsylvania, and Washington. 110. Arizona, Colorado, Florida, Iowa, Massachusetts, North Carolina, Oregon, Vermont, and Washington. 111. Florida, Illinois, Iowa, Michigan, Minnesota, New Hampshire, North Carolina, Oregon, Pennsylvania, and Virginia. 112. Arizona, Colorado, Florida, Iowa, Massachusetts, Minnesota, New Hampshire, New York, North Carolina, Oregon, Vermont, Virginia, and Wisconsin. 113. Arizona, Massachusetts, New Hampshire, New York, and Vermont. 114. Oregon. 115. Florida, Iowa, North Carolina, and Pennsylvania. 116. Arizona, Colorado, Michigan, Minnesota, North Carolina, and Pennsylvania. 117. Pennsylvania. 118. Arizona, California, Colorado, Iowa, Massachusetts, Michigan, Minnesota, New Hampshire, New York, North Carolina, Oregon, Pennsylvania, Utah, Vermont, Virginia, Washington, and Wisconsin. 119. Colorado, New York, North Carolina, Ohio, and Pennsylvania. 120. Colorado, Iowa, Michigan, New York, North Carolina, Ohio, and Pennsylvania. 121. Arizona, Colorado, Florida, Iowa, Michigan, New York, Ohio, and Pennsylvania. 122. Florida, New York, North Carolina, and Vermont. 123. Arizona, California, Colorado, Florida, Iowa, Massachusetts, New York, North Carolina, Ohio, and Vermont. 124. New Hampshire, North Carolina, Oregon, Pennsylvania, and Washington. 125. Massachusetts, Pennsylvania, and Vermont. 126. Illinois, Michigan, Minnesota. 127. California, Florida, Iowa, New York, North Carolina, Pennsylvania, and Wisconsin. 128. California, Florida, and North Carolina. 129. Arizona, Michigan, North Carolina, Pennsylvania, and Vermont. 130. Colorado and North Carolina. 131. Arizona, Colorado, Florida, Illinois, Maryland, Massachusetts, New Hampshire, New York, North Carolina, Oregon, Pennsylvania, Vermont, and Washington. 132. Indiana and Pennsylvania. 133. PHYLLIS MYERS, GROWTH AT THE BALLOT BOX: ELECTING THE SHAPE OF COMMUNITIES IN NOVEMBER 2000 (Brookings Inst. 2001). 134. Id. at 3. 135. Id. Phyllis Myers notes in the report that this statistic represents a 15% increase in this type of ballot measure from 1998, the time of the last survey. 136. Id. at 4. 32 ELR 11385 | Environmental Law Reporter | copyright © 2002 | All rights reserved |