Champions of change: Reinventing democracy through land law reform

Harvard Environmental Law Review

Volumn 30, Issue 1, 2006, Pages 1-49

  Nolon, John R ^a,b  

^a PACE UNIVERSITY   (United States)

^b Yale School of the Environment   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

DEMOCRACY; FEDERAL SYSTEM; LAND REFORM; LAND USE CHANGE; LOCAL GOVERNMENT; STATE;

EID: 33645996078     PISSN: 01478257     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (334)

1. U.S. 365, 387 (1926)
2. Id. at 386-87.
3. See Winston Churchill, A History of the English-Speaking Peoples 177 (1956): Digests and codes imposed in the Roman manner by an omnipotent state on a subject people were alien to the spirit and tradition of England. The law was already there, in the customs of the land, and it was only a matter of discovering it by diligent study and comparison of recorded decisions in earlier cases and applying it to the particular dispute before the court .... Even the framers of the Magna Carta did not attempt to lay down new law or proclaim any broad general principles. This was because both sovereign and subject were in practice bound by the Common Law, and the liberties of Englishmen rested not on any enactment of the State, but on immemorial slow-growing custom declared by juries of free men who gave their verdicts case by case in open court.
4. See also Magna Carta, para. 39 ("No freeman shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land.").
5. See Churchill, supra note 3, at 177: Lawyers of the reign of Henry II read into the statements of their predecessors of the tenth century meanings and principles which their authors never intended, and applied them to the novel conditions and problems of their own day. No matter. Here was a precedent. If a judge could be shown that a custom or something like it had been recognised and acted upon in an earlier and similar case he would be more ready, if it accorded with his sense of what was just and with the current feelings of the community, to follow it in the dispute before him. This slow but cautious growth of what is popularly known as "case law" ultimately achieved much the same freedoms and rights for the individual as are enshrined in other countries by written instruments such as the Declarations of the Rights of Man and the spacious and splendid provisions of the American Declaration of Independence and constitutional guarantees of civil rights.
6. See A. W. B. Simpson, A History of the Land Law 25 (2nd ed. 1986) ("The common law of land grew up around the forms of action which brought litigation concerning land before the royal justices, and thus enabled them to begin to impose a uniform system of rules of landholding upon the whole realm; eventually in this century the legislature has completed the task, and local customary departures from the common law have been all but totally extinguished.").
7. See also Rutherford H. Platt, Land Use and Society: Geography, Law, and Public Policy (rev. ed. 2004), for a survey of "Historic Roots of Modern Land Use Institutions," at 65-94, and of the development of local governments in the United States, at 120-49.
8. See, e.g., Charles M. Haar, Reflections on Euclid: Social Contract and Private Purpose, in Zoning and the American Dream: Promises Still To Keep 333, 333-34 (Charles M. Haar & Jerold S. Kayden eds., 1989) (citation omitted): In looking back upon the series of events culminating in Euclid, what is most impressive are the arduous struggles of the courts to adapt the common law to new conditions. They present a clear picture of the shaping of legal institutions to fit emerging social and economic worlds. Intellectual struggles over the appropriate designation of activities as properly private or public - according to the common law tradition - appear throughout the briefs and opinions in these cases. But what commands greater attention is the legal profession's perennial effort to create new theories with which to tame new dynamics, drawing upon while transforming the ancient materials of the common law. In harking back to such roots and searching for the basic reasons underlying the birth and survival of formal doctrines, lawyers and judges, through reinterpretation and altered perspectives, adapt and alter and redeploy them for new ends.
9. U.S. Commission on Ocean Policy, established by Oceans Act of 2000, Pub. L. No. 106-256, 114 Stat. 644 (2001), amended by Pub. L. No. 107-206, 116 Stat. 833 (2003), Pub. L. No. 107-372, 116 Stat. 3096 (2003).
10. U.S. Commission on Ocean Policy Resolution, United Nations Law of the Sea Convention, Nov. 14, 2001, available at http:// www.oceancommission.gov/documents/los_resolution.pdf.
11. United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 397 (entered into force Nov. 16, 1994), available at http:// www.un.org/Depts/los/convention_agreements/texts/unclos/unclos_e.pdf.
12. United Nations Division for Ocean Affairs and the Law of the Sea, The United Nations Convention on the Law of the Sea (A Historical Perspective), http://www.un.org/depts/los/convention_agreements/ convention_historical_perspective.htm (last visited Oct. 28, 2005) (on file with the Harvard Environmental Law Review) [hereinafter U.N., A Historical Perspective].
13. Id.
14. See United Nations Convention on the Law of the Sea, supra note 8, Article 192 ("General obligation: States have the obligation to protect and preserve the marine environment.").
15. U.N., A Historical Perspective, supra note 9.
16. Conventions, however, are not entirely self-executing. Because of Tenth Amendment complications and the grant of legal authority to coastal states over territory within three to six miles of the shore, the current authority of the federal government to regulate land-based sources of pollution is anything but clear. For an overview of federal, state, and international jurisdiction over coastal waters, see Review of U.S. Ocean and Coastal Law: The Evolution of Ocean Governance over Three Decades, Appendix 6 to An Ocean Blueprint for the 21st Century: Final Report of the U.S. Commission on Ocean Policy (published separately 2005), available at http://www.oceancommission.gov/documents/ full_color_rpt/welcome.html#final.
17. See, e.g., Report of the United Nations Conference on Environment and Development, U.N. GAOR, 46th Sess., Annex II, Agenda Item 21, U.N. Doc. A/CONF. 151/26 (June 3-14, 1992) [hereinafter Agenda 21], available at http://www.un.org/esa/sustdev/documents/agenda21/english/ agenda21chapter1.htm: Humanity stands at a defining moment in history. We are confronted with ... the continuing deterioration of the ecosystems on which we depend for our well being. However, integration of environment and development concerns and greater attention to them will lead to the fulfillment of basic needs, improved living standards for all, better protected and managed ecosystems and a safer, more prosperous future. No nation can achieve this on its own; but together we can - in a global partnership for sustainable development.
18. See Gregory v. Ashcroft, 501 U.S. 452, 457-58 (1991): As every schoolchild learns, our Constitution establishes a system of dual sovereignty between the States and the Federal Government. This Court also has recognized this fundamental principle. In Tafflin v. Levitt, 493 U.S. 455, 458 (1990): "[w]e beg[a]n with the axiom that, under our federal system, the States possess sovereignty concurrent with that of the Federal Government, subject only to limitations imposed by the Supremacy Clause." ... The Constitution created a Federal Government of limited powers. "The powers not delegated to the United States by the Constitution ... are reserved to the States respectively, or to the people." U.S. Const., Amdt. 10. The States thus retain substantial sovereign authority under our constitutional system. As James Madison put it: "The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite .... The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State." The Federalist No. 45, pp. 292-293 (C. Rossiter ed. 1961).
19. See also 1 Rathkopf's The Law of Zoning and Planning § 1.2 (Edward H. Ziegler, Jr., ed. 2005) (citations omitted): Police power in the land-use control context encompasses zoning and all other government regulations which restrict private owners in their development and use of land. The police power is inherent in the sovereign power of the state to regulate private conduct to protect and further the public welfare. Courts have universally held that this power includes within its scope all manner of laws deemed necessary by the legislature to promote public health, safety, morals, or the general welfare.
20. See Linda A. Malone, The Coastal Zone Management Act and the Takings Clause in the 1990's: Making the Case for Federal Land Use to Preserve Coastal Areas, 62 U. Colo. L. Rev. 711, 711 (1991): The passage of the CZMA created a great sense of achievement in many different quarters because for the first time Congress had declared a national interest in land use decisions previously viewed as local in nature. The CZMA acknowledged that a rapidly growing population endangered the fragility and beauty of the coastal zone. Throughout its history, however, the strength of the CZMA has been threatened by inadequate funding and eroded by court decisions. As a result, the very existence of the CZMA, perhaps the most comprehensive effort to combine state and federal land use planning, was often threatened. (citing Coastal Zone Management: Hearing before the Nat'l Ocean Pol'y Study of the Comm. on Commerce, Science, and Transport. of the Senate, 100th Cong., 1st Sess. 1 (1987)).
21. For example, the Clean Air Act, 42 U.S.C. § 7431, states: "Nothing in this chapter constitutes an infringement on the existing authority of counties and cities to plan or control land use, and nothing in this chapter provides or transfers authority over such land use." See also 1 Rathkopf's The Law of Zoning and Planning, supra note 15, § 1.2: Police power in the land-use control context encompasses zoning and all other government regulations which restrict private owners in their development and use of land. The police power is inherent in the sovereign power of the state to regulate private conduct to protect and further the public welfare. Courts have universally held that this power includes within its scope all manner of laws deemed necessary by the legislature to promote public health, safety, morals, or the general welfare.
22. See Solid Waste Agency of N. Cook County v. U.S. Army Corps of Eng'rs, 531 U.S. 159, 174 (2001), in which the majority found that § 404(a) of the Clean Water Act does not permit the Army Corps of Engineers to extend the definition of "navigable waters" to include intrastate waters visited by migratory birds: Permitting respondents to claim federal jurisdiction over ponds and mudflats falling within the "Migratory Bird Rule" would result in a significant impingement of the States' traditional and primary power over land and water use
23. See, e.g., Hess v. Port Authority Trans-Hudson Corporation, 513 U.S. 30, 44 (1994) ("[R]egulation of land use [is] a function traditionally performed by local governments").
24. Id. at 174.
25. In addition to the federal government and fifty state governments, there are 38,971 general purpose local governments: 3034 county governments, 19,431 municipal governments, and 16,506 township governments. A large percentage of these general purpose governments have some power to regulate private land use. See U.S. Census Bureau, Preliminary Report No. 1: The 2002 Census of Governments (2002), available at http:// ftp2.census.gov/govs/cog/2002COGprelim_report.pdf.
26. See John R. Nolon, Golden and Its Emanations: The Surprising Origins of Smart Growth, 35 Urb. Law. 15, 30-54 (2003).
27. For a survey of local efforts to achieve sustainable development, see Robert R. M. Verichick, Why the Global Environment Needs Local Government: Lessons from the Johannesburg Summit, 35 Urb. Law. 471 (2003).
28. At the United Nations Conference on Environment and Development, the Rio Declaration on Environment and Development was endorsed by 172 nations. U.N. Doc. A/CONF. 151/5/Rev.1 (1992), reprinted in 31 I.L.M. 874 (1992). The core of the Declaration and its twenty-seven principles is a commitment to economic efficiency, environmental protection, and equity, the three pillars of sustainability. The Rio Declaration is a study in connectivity. Principle 1 of the Declaration expresses an entitlement running from present to future populations: "Human beings ... are entitled to a healthy and productive life in harmony with nature." Principle 3 connects development, equity, and the environment by declaring: "The right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations."
29. U.S. Department of Commerce, A Standard State Zoning Enabling Act, § 3 (1924, reprinted 1926). The phrase "encouraging the most appropriate use of land" was incorporated into most state laws that authorize local governments to adopt zoning laws. It explains the essential purpose to be achieved through the adoption of local land use laws.
30. See F. Kaid Benfield et al., Solving Sprawl: Models of Smart Growth in Communities Across America (2001);
31. Robert H. Freilich, From Sprawl to Smart Growth: Successful Legal, Planning, and Environmental Systems (1999);
32. Jerry Weitz, Sprawl Busting: State Programs to Guide Growth (1999);
33. American Planning Association, Planning for Smart Growth: 2002 State of the States (2002);
34. Ed Bolen et al., Smart Growth: A Review of Programs State by State, 8 Hastings W.-Nw. J. Envtl. L. & Pol'y 145 (2002).
35. See John R. Nolon, In Praise of Parochialism: The Advent of Local Environmental Law, 26 Harv. Envtl. L. Rev. 365 (2002) [hereinafter Nolon, In Praise of Parochialism].
36. See also James M. McElfish, Nature-Friendly Ordinances: Local Measures to Conserve Biodiversity (2004);
37. Growing Smart Legislative Guidebook: Model Statutes for Planning and the Management of Change (Stuart Meck ed., 2002);
38. John R. Nolon, Open Ground: Effective Local Strategies for Protecting Natural Resources (2003).
39. Alice Kaswan, Environmental Justice: Bridging the Gap Between Environmental Laws and "Justice," 47 Am. U.L. Rev. 221, 226-27 (1997).
40. See also Verichick, supra note 20, at 475-76.
41. Examples of local laws that have been adopted across the country can be reviewed by accessing the Land Use Law Center of Pace University School of Law, Gaining Ground Information Database, http:// www.landuse.law.pace.edu (last visited Sept. 18, 2005).
42. This movement is anything but ubiquitous. Citing impressive evidence of local reform is not the same as asserting that all is well in the American land use system. This Article is intended to probe whether and how this trend at the base of the system can be facilitated. The rapid spread of innovative land use laws in the past decade parallels the rapid adoption of zoning enabling laws by state legislatures and the adoption of zoning as the preferred method of land use control in the 1920s.
43. These include students in land use classes and seminars at Pace University School of Law and masters degree students at Yale's School of Forestry and Environmental Studies.
44. See Nolon, In Praise of Parochialism, supra note 23, at 376 ("The gradual evolution toward environmental sensitivity in local land use controls has proceeded far enough that a distinct environmental ethic, as opposed to an incidental one, is evident.").
45. Mixed-use, higher density developments have experienced an average increase of 28% per year for the past seven years. See Robert Steuteville, New Urban Neighborhoods Make Big Gains, New Urban News, Jan./Feb. 2004, available at http://www.newurbannews.com/ SurveyStoryJan04.html.
46. A draft report on the reappearance and adaptation of urban revitalization techniques is on file with the Harvard Environmental Law Review.
47. The author founded the Land Use Law Center in 1994 after conducting a study on the sustainability of land development patterns in the Hudson River Valley for the President's Council on Sustainable Development. This study indicated that training local land use leaders was essential if currently unsustainable development trends in the region were to be reversed. With funding from Congress and a variety of additional sources, the Land Use Law Center created and has conducted extensive multi day training programs for local land use leaders from over 150 towns, villages, and cities in the valley. The program, known as the Local Land Use Leadership Alliance Training Program ("LULA"), has educated over 600 local leaders. The curriculum of the training program includes in-depth exposure to embodying land use strategies in local law and consensus-based decision-making techniques to effect change responsive to unique local crises and circumstances. The Center has created a technical assistance program consisting of local strategic workshops, regional conferences, and an electronic newsletter called Gaining Ground, which is published quarterly and sent to all graduates.
48. Students in the author's classes at the Yale School of Forestry and Environmental Studies conducted research on local environmental and smart growth laws adopted by municipalities in all fifty states, identifying well-crafted and exemplary laws and interviewing the local land use leaders involved in drafting and securing the adoption of these laws. See Yale School of Forestry & Environmental Studies, Report Number 2: Gaining Ground Information Database (John R. Nolon et al. eds., 2004) (describing the methodology and conclusions of this research), available at http://www.yale.edu/environment/publications.
49. See Murray Gell-Mann, The Quark and the Jaguar: Adventures in the Simple and the Complex (1994). Gell-Mann describes biological evolution, the behavior of organisms in ecological systems, learning and thinking in human beings, the evolution of human societies, and the behavior of investors in financial markets as "processes." Within each process, he asserts: A complex adaptive system acquires information about its environment and its own interaction with that environment, identifying regularities in that information, condensing those regularities into a kind of "schema" or model, and acting in the real world on the basis of that schema. In each case, there are various competing schemata, and the results of the action in the real world feed back to influence the competition among those schemata.
50. Id. at 17.
51. Until perhaps the late 1950s, traditional zoning techniques sufficed to order the external development pressures on communities in the United States. As development pressures mounted, this model of land use control failed many communities whose leaders then reacted to this feedback of failure by adopting new land use techniques, a process that evolves within and spreads among communities through the process Gell-Mann describes as a complex adaptive system. Until perhaps the late 1950s, traditional zoning techniques sufficed to order the external development pressures on communities in the United States. As development pressures mounted, this model of land use control failed many communities whose leaders then reacted to this feedback of failure by adopting new land use techniques, a process that evolves within and spreads among communities through the process Gell-Mann describes as a complex adaptive system. See generally Mitchell M. Waldrop, Complexity: The Emerging Science at the Edge of Order and Chaos (1992) (providing details of the work conducted by the Santa Fe Institute on the science of complexity).
52. See Everett M. Rogers, Diffusion of Innovations 6 (5th ed. 2003) ("Diffusion is a kind of social change, defined as the process by which alteration occurs in the structure and function of a social system.... In this book, we use the word 'diffusion' to include both the planned and spontaneous spread of new ideas.").
53. See Gell-Mann, supra note 33, at 9: Complex adaptive systems include a human child learning his or her native language, a strain of bacteria becoming resistant to an antibiotic, the scientific community testing out new theories, an artist getting a creative idea, a society developing new customs or adopting a new set of superstitions, a computer programmed to evolve new strategies for winning at chess, and the human race evolving ways of living in greater harmony with itself and with the other organisms that share the planet Earth.
54. See Rogers, supra note 34, at 5 ("Diffusion is the process in which an innovation is communicated through certain channels over time among the members of a social system.").
55. See David E. Booher & Judith E. Innes, Network Power in Collaborative Planning 12-13 (2000-01) (unpublished working paper, U. Cal. at Berkeley Inst. of Urb. and Regional Dev., on file with the Harvard Environmental Law Review): Network power emerges from communication and collaboration among individuals, agencies, and businesses in a society. Network power emerges as diverse participants in a network focus on a common task and develop shared meanings and common heuristics for action. It grows as these players identify and build on their interdependencies to create new potential. In the process, innovations and novel responses to environmental stresses can emerge. These innovations, in turn, make possible adaptive change and constructive action of the whole.
56. See also id. at 3 ("Like a complex adaptive system, [the planning network] as a whole is more capable of learning and adaptation in the face of fragmentation and rapid change than a set of disconnected agents."). ("Like a complex adaptive system, [the planning network] as a whole is more capable of learning and adaptation in the face of fragmentation and rapid change than a set of disconnected agents")
57. See Rogers, supra note 34, at 12 ("An innovation is an idea, practice, or object that is perceived as new by an individual or other unit of adoption.").
58. See Gell-Mann, supra note 33, at 17: The common feature of all these processes is that in each one a complex adaptive system acquires information about its environment and its own interaction with that environment, identifying regularities in that information, condensing those regularities into a kind of "schema" or model, and acting in the real world on the basis of that schema. In each case, there are various competing schemata, and the results of the action in the real world feed back to influence the competition among these schemata.
59. See Rogers, supra note 34, at 404-35.
60. See id. at 434 ("The presence of an innovation champion contributes to the success of innovation in an organization .... Research has shown that innovation champions may be powerful individuals in an organization, or they may be lower-level individuals who possess the ability to coordinate the actions of others.").
61. Rogers, supra note 34, at 411.
62. According to Rogers, "[a] champion is a charismatic individual who throws his or her weight behind an innovation, thus overcoming indifference or resistance that the new idea may provoke in an organization." A local government is an "organization" with a chief elected officer, a legislative body, and land use agencies such as a planning commission, zoning board of appeals, conservation committee, and master plan committee. It is influenced by those affected by land use decisions when they vote and when they organize constituents to speak at public meetings and hearings. Our experience shows that effective champions of change in local land law can be members of any one of these boards or committees and, at times, even particularly effective stakeholders. Rogers writes that, according to studies of organizational change, the "important qualities of champions were that they (1) occupied a key linking position in their organization, (2) possessed analytical and intuitive skills in understanding various individuals' aspirations, and (3) demonstrated well-honed interpersonal and negotiating skills in working with other people in their organization." Id. at 414-15.
63. Id. at 429.
64. See infra Part IV.
65. See Building the American City: Report of the National Commission on Urban Problems to the Congress and to the President of the United States H.R. Doc. No. 91-34, at 200-01 (1969) [hereinafter Report of the National Commission on Urban Problems]: Zoning spread quickly during the 1920's .... State enabling legislation, giving municipalities specific authority to zone, became common during the 1920's. This state action was substantially aided by the Federal Government. In 1921, Herbert Hoover, then Secretary of Commerce, appointed an Advisory Committee on Zoning in the Department of Commerce. In 1924, the Committee issued the Standard State Zoning Enabling Act, a model upon which a great deal of State zoning legislation is still based. By the end of 1930, some or all localities in every State were legally empowered to adopt zoning ordinances.
66. See supra note 43.
67. See infra Part III.B.
68. In 2005, the Final Report of the U.S. Commission on Ocean Policy outlined the "complex mosaic of legal authorities" affecting coastal management in the United States: Management of ocean and coastal resources and activities must address a multitude of different issues, and involves aspects of a variety of laws - at local, state, federal, and international levels - including those related to property ownership, land and natural resource use, environmental and species protection, and shipping and other marine operations - all applied in the context of the multi-dimensional nature of the marine environment. Several of those aspects of law may come into play simultaneously when addressing conflicts over public and private rights, boundaries, jurisdictions, and management priorities concerning ocean and coastal resources. In addition, some laws result in geographic and regulatory fragmentation and species-by-species or resource-by-resource regulation. U.S. Commission on Ocean Policy, Final Report, supra note 13, App. 6 at 2. Following the great Midwestern floods of 1993, a five-state consortium of natural resource managers reported that in the Upper Mississippi Basin - in addition to relevant federal statutes - there existed: [A] planning, regulatory, and management framework that included at least 20 different categories of agencies (from federal to local) with jurisdiction over one or more of some 33 different functional areas of activity on the river. This includes at least six federal agencies with significant roles, 23 state agencies in five states, and 233 local governments. Upper Mississippi River Conservation Committee, Facing the Threat: An Ecosystem Management Strategy for the Upper Mississippi River (Dec. 1993), http://www.mississippi-river. com/ umrcc/Call-for-Action.html (on file with the Harvard Environmental Law Review). See also Peter A. Buchsbaum, Permit Coordination Study by the Lincoln Institute of Land Policy, 36Urb. Law. 191, 191-92 (2004) ("[T]he problem of regulatory coordination will not go away. Over the decades, federal land use regulation has grown more, not less intense."). The author lists various federal regulations that involve land use controls and permitting. See id.
69. See Peter W. Salsich, JR., & Timothy J. Tryniecki, Land Use Regulation: A Legal Analysis & Practical Application of Land Use Law 379 (1998).
70. See also Andres Duany, Elizabeth Plater-Zyberk, & Jeff Speck, Suburban Nation: The Rise of Sprawl and the Decline of the American Dream 242-43 (2000) ("Only generalists can be trusted to offer reasonable advice. The role of the generalist must be played by citizens, but citizens can forfeit that role by becoming specialists of their own backyard.").
71. See generally Michael C. Thomsett, NIMBYism: Navigating the Politics of Local Opposition (2004).
72. See generally Millenial Housing Commission, Meeting Our Nation's Housing Challenges 2 (2002), available at http://govinfo.library.unt.edu/mhc/ MHCReport.pdf: The most significant housing challenge is affordability, growing in severity as family incomes move down the ladder. In 1999, one in four - almost 28 million - American households reported spending more on housing than the federal government considers affordable and appropriate (more than 30 percent of income) .... Federal support for the housing sector has been insufficient to cover growing needs, fill the gaps in availability and affordability, preserve the nation's investment in federally assisted housing, and provide sufficient flexibility to craft local solutions to problems .... At the opening of the new millennium, the nation faces a widening gap between the demand for affordable housing and the supply of it. The causes are varied - rising housing production costs in relation to family incomes, inadequate public subsidies, restrictive zoning practices, adoption of local regulations that discourage housing development, and loss of units from the supply of federally subsidized housing .... And despite civil-rights and fair housing guarantees, the housing shortage hits minorities hardest of all.
73. See Henry R. Richmond, From Sea to Shining Sea: Manifest Destiny and the National Land Use Dilemma, 13 Pace L. Rev. 327, 329-30 (1993) ("Various federal policies and programs have powerfully propelled the suburbanization of America.").
74. See also James A. Kushner. The Reagan Urban Policy: Centrifugal Force in the Empire, 2 UCLA J. Envtl. L. & Pol'y 209, 210 (1982)
75. A survey conducted by the Fannie Mae Foundation on the 50th anniversary of the 1949 Housing Act asked an interdisciplinary group of urban specialists to rank the "top 10 influences on the American metropolis of the past 50 years," and the #1 ranked influence was "[t]he 1956 Interstate Highway Act and the dominance of the automobile." Robert Fishman, The American Metropolis at Century's End: Past and Future Influences, 11 Housing Policy Debate 199, 200 (2000), available at http://www.fanniemaefoundation.org/programs/hpd /v11i1-fishman.shtml.
76. See Nolon, In Praise of Parochialism, supra note 23, at 366-72.
77. Charles W. Powers & Marian R. Chertow, Industrial Ecology: Overcoming Policy Fragmentation, in Thinking Ecologically: The Next Generation of Environmental Policy 19, 21 (Marian R. Chertow & Daniel C. Esty eds., 1997) ("Within the U.S. environmental protection system, there are several categories of fragmentation: by type of pollution, by life-cycle stage, and by organizational characteristics.").
78. See also id. at 7 ("Redefining the role of government is, perhaps, the central question of our age.").
79. See John R. Nolon, Fusing Economic and Environmental Policy: The Need for Framework Laws in the United States and Argentina, 13 Pace Envtl. L. Rev. 685, 710 n.83 (1996)
80. (citing Lawrence J. Jensen, Environmental Protection in Latin America: A Rapidly Changing Legal Framework, 8 Nat. Resources & Env't 23 (1993));
81. United Nations Environment Programme, Technical Assistance, http:// www.unep.org/dpdl/Law/Programme_work/Technica_assistance/index_more.asp (last visited Nov. 29, 2005) (on file with the Harvard Environmental Law Review) [hereinafter "UNEP, Technical Assistance"].
82. UNEP has collected examples of framework laws in a Compendium of Environment Laws of African Countries, Vol. 1, Framework Laws and EIA Regulations (1996 & Supps.), available at http://www.unep.org/ padelia/publications/laws.html.
83. U.N. Economic and Social Commission for Asia and the Pacific, ESCAP Virtual Conference: Integrating Environmental Considerations into Economic Policymaking Processes, http://www.unescap.org/drpad/vc/ orientation/lega/2F_frame_intro.htm (last visited Nov. 29, 2005) (on file with the Harvard Environmental Law Review).
84. See Felipe Páez, Environmental Framework Laws in Latin America, 13 Pace Envtl. L. Rev. 625, 678-84 (1996).
85. See UNEP, Technical Assistance, supra note 56.
86. The Urban Planning Assistance Program, Housing Act of 1954, Pub. L. No. 83-560 § 701, 68 Stat. 590, 640 (repealed 1981).
87. For discussions of the 701 Program's influence at the state and local level, see Robert H. Freilich, From Sprawl to Smart Growth 2 (1999);
88. Brian W. 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, 186 n.35 (2000)
89. (citing Carl Feiss, The Foundations of Federal Planning Assistance, 51 J. Am. Plan. Ass'n 175 (1985));
90. and Patricia E. Salkin, Regional Planning in New York State: A State Rich in National Models, Yet Weak in Overall Statewide Planning Coordination, 13 Pace L. Rev. 505, 510-11 (1993).
91. In a timeline tracing the history of New Jersey's land development policies, the state's Department of Community Affairs, Office of Smart Growth, estimates that from 1954 to 1981 "more than $50 million had been spent in assisting local, county, regional and state planning in New Jersey" under the 701 Program. N.J. Dep't of Community Affairs, New Jersey Has a Long Tradition of Smart Growth, http://www.nj.gov/dca/osg/smart/chronology.shtml (last visited Oct. 29, 2005) (on file with the Harvard Environmental Law Review).
92. See Peter W. Salsich, Jr., Saving Our Cities: What Role Should the Federal Government Play?, 36 Urb. Law. 475 (2004) (arguing that the federal government should not retreat, as it apparently is doing, from investing in cities to help them deal with problems of revitalization and affordable housing).
93. Supra note 46.
94. Id. at 323.
95. 42 U.S.C. §§ 4321-4347 (2005).
96. See S. Rep. No. 91-1435, at 1 (1970).
97. See generally Jayne Daly, A Glimpse of the Past - A Vision of the Future: Senator Henry M. Jackson and National Land Use Legislation, in Pace Envtl. L. Rev., Commemorative Edition 1995, at 25.
98. See S. Rep. No. 91-1435, at 9 (1970).
99. Oregon's statewide planning legislation was initiated in 1969, when the state's Senate Bill 10 mandated that local governments adopt comprehensive land-use plans in accordance with state standards. Senate Bill 100, in 1973, established the Department of Land Conservation and Development, which created the state's fourteen planning goals. See Or. Dep't. of Land Conservation & Dev., Chronology: 1969 to Present, http://www.oregon.gov/LCD/history.shtm (last visited Nov. 29, 2005) (on file with the Harvard Environmental Law Review).
100. See Daly, supra note 66, at 37.
101. See id. at 36.
102. See id. at 38.
103. Id.
104. Id.
105. Id. at 27-31.
106. See id. at 48, 54.
107. See John R. Nolon, National Land Use Planning: Revisiting Senator Jackson's 1970 Policy Act, 48 Land Use L. & Zoning Dig. 3, 5 (1996).
108. See id. at 5.
109. See Buchsbaum, supra note 49, at 192 (stating that an initiative proposed recently by the American Planning Association entitled "The Cooperative Federalism Act" was opposed by its advisory group on smart growth policies).
110. See Gell-Mann, supra note 33, at 345-46: [N]o complex, nonlinear system can be adequately described by dividing it up into subsystems or into various aspects, defined beforehand. If those subsystems or those aspects, all in strong interaction with one another, are studied separately, even with great care, the results, when put together, do not give a useful picture of the whole. In that sense, there is profound truth in the old adage, "The whole is more than the sum of its parts."
111. See also Booher & Innes, supra note 37, at 21 (citing Paul Cilliers, Complexity and Postmodernism: Understanding Complex Systems (1998)): This is a similar principle to connectionist and neural networks, which require information flows between the agents of the network to carry on their activities effectively. The structure of these information flows must be suitable to the needs of the network. In the case of
112. Henry L. Diamond & Patrick F. Noonan, Land Use in America (1996).
113. Id. at 99.
114. Id. at 100-32.
115. Id. at 100-10 (Agenda Items #1, #2, and #3).
116. Id. at 100-06, 112-13 (Agenda Items #1, #2, and #5).
117. See id. at xvii.
118. See also Gell-Mann, supra note 33, at 330 ("[I]n the long run[,] attempts to impose solutions on human societies from above often have destructive consequences. Only through education, participation, a measure of consensus, and the widespread perception by individual people that they have a personal stake in the outcome can lasting and satisfying change be accomplished.").
119. 16 U.S.C. §§ 1451-1465 (2005).
120. Commission on Marine Science, Engineering, and Resources, Our Nation & the Sea: A Plan for National Action 49 (1969), available at http:// www.lib.noaa.gov/edocs/stratton/title.html [hereinafter Stratton Report].
121. See CZMA § 302(b),(h), 16 U.S.C. § 1451(b),(h) (2005). The devastation wrought by hurricanes Katrina and Rita demonstrates that the CZMA did not extend far enough to create disaster-resilient communities or clear plans for rebuilding after major weather events. Such results, however, can be negotiated within the framework of the CZMA. Perhaps the extraordinary losses suffered in the Gulf Coast in 2005 will encourage coastal leaders to consider needed reforms within the structure of the CZMA. Even before the hurricanes, the U.S. Commission on Ocean Policy recommended that: Congress should reauthorize the Coastal Zone Management Act (CZMA) to strengthen the planning and coordination capabilities of coastal states and enable them to incorporate a coastal watershed focus and more effectively manage growth. Amendments should include requirements for resource assessments, the development of measurable goals and performance standards, improved program evaluations, incentives for good performance and disincentives for inaction, and expanded boundaries that include coastal watersheds.
122. U.S. Commission on Ocean Policy, supra note 13, at 154. The Pew Oceans Commission has recommended the development of a new National Ocean Policy Act "that, at a minimum ... addresses geographic and institutional fragmentation by providing a unifying set of principles and standards for governance ... establishes processes to improve coordination among governments, institutions, users of ocean resources, and the public ... [and] provides adequate funding to accomplish these goals." Pew Oceans Commission, America's Living Oceans: Charting a Course for Sea Change 102 (2003), available at http://www.pewtrusts.org/ pdf/env_pew_oceans_final_report.pdf. The Commission further recommended that "[t]he consistency authority of the Coastal Zone Management Act should be expanded to include regional ocean governance plans. This will allow states to hold federal actions to consistency with regional ocean governance plans." Id. at 104.
123. See CZMA § 303, 16 U.S.C. § 1452 (2005). Prior to the enactment of CZMA, the Stratton Report noted: [T]he States are subject to intense pressures from the county and municipal levels, because coastal management directly affects local responsibilities and interests. Local knowledge frequently is necessary to reach rational management decisions at the State level, and it is necessary to reflect the interests of local governments in accommodating competitive needs .... The States must be the focus for responsibility and action in the coastal zone. The State is the central link joining the many participants, but in most cases, the States now lack adequate machinery for [the] task. An agency of the State is needed with sufficient planning and regulatory authority to manage coastal areas effectively and to resolve problems of competing uses. Such agencies should be strong enough to deal with the host of overlapping and often competing jurisdictions of the various Federal agencies. Finally, strong State organization is essential to surmount special local interests, to assist local agencies in solving common problems, and to effect strong interstate cooperation.
124. Stratton Report, supra note 87, at 56-57.
125. See CZMA § 303(2), 16 U.S.C. § 1452(2) (2005).
126. See Malone, supra note 16, at 714-15 (1991).
127. See CZMA § 303, 16 U.S.C. § 1452 (2005), Congressional Declaration of Policy: The Congress finds and declares that it is the national policy ... (2) to encourage ... (I) the giving of timely and effective notification of, and opportunities for public and local government participation in, coastal management decisionmaking ... cooperation of the public, state and local governments, and interstate and other regional agencies, as well as of the Federal agencies having programs affecting the coastal zone, in carrying out the purposes of this chapter;... (5) to encourage coordination and cooperation with and among the appropriate Federal, State, and local agencies, and international organizations where appropriate, in collection, analysis, synthesis, and dissemination of coastal management information, research results, and technical assistance, to support State and Federal regulation of land use practices affecting the coastal and ocean resources of the United States ....
128. See Malone, supra note 16, at 727 ("[I]f the requirements for state programs were more specific, the CZMA would come close to the most controversial form of land control - federal land control. The passage of the CZMA was possible because the Act required state programs to implement federal policy rather than federal regulations.").
129. See New York State Department of State Division of Coastal Resources, Environmental Protection Fund Local Waterfront Revitalization Program, http://www.nyswaterfronts.com/grantopps_EPF.asp (last visited Nov. 29, 2005) (on file with the Harvard Environmental Law Review).
130. See John R. Nolon, Grassroots Regionalism Through Intermunicipal Compacts, 73 St. John's L. Rev. 1011, 1034 (1999) (citing The Historic River Towns of Westchester Intermunicipal Agreement (Sept. 26, 1994), The Manhasset Bay Protection Committee Agreement (1995), and The Oyster Bay-Cold Spring Harbor Complex Agreement (1995)). See also The Long Island Sound Watershed Intermunicipal Council, infra note 136.
131. See Florida Dep't of Community Affairs, Waterfronts Florida Partnership, http://www.dca.state.fl.us/fdcp/dcp/waterfronts/index.cfm (last visited Sept. 18, 2005) (on file with the Harvard Environmental Law Review).
132. See Michigan Dep't of Environmental Quality, Waterfront Redevelopment, http://www.michigan.gov/deq/0,1607,7-135-3311_4110_4229-11504-,00.html (last visited Sept. 18, 2005) (on file with the Harvard Environmental Law Review).
133. Id.
134. See Washington Dep't of Ecology, Coastal Zone Management Grants, http:// www.ecy.wa.gov/programs/sea/grants/czm/index.html (last visited Sept. 18, 2005) (on file with the Harvard Environmental Law Review).
135. Wis. Stat. § 66.1027 (2004).
136. A Model Ordinance for a Traditional Neighborhood Development (Wis. State Legislature 2001), available at http://www.1kfriends.org/ Community_Planning/pdf/tndord.pdf. See also infra Part IV.D.
137. River Falls, Wis. Mun. Code ch. 17.112 (2002). The purpose of this district is to allow for development of fully integrated, mixed use pedestrian oriented neighborhoods. The intent is to minimize traffic congestion, suburban sprawl, infrastructure cost and environmental degradation. Its provision adapted urban conventions, which were normally in the United States and the city of River Falls until the 1940's and historically were based on the following design principals: A. Neighborhoods have identifiable centers and edges[;] B. Edge lots are readily accessible to retail and recreation by non-vehicular means (a distance not greater than one half mile)[;] C. Use and housing types are mixed and in close proximity to one another[;] D. Street networks are interconnected and blocks are small[;] E. Civic buildings are given prominent sites throughout the neighborhood.
138. § 17.112.020. Ord. 2002-02.
139. See Soil Erosion and Sedimentation Control, Natural Resources and Environmental Protection Act, Mich. Comp. Laws. Ann. ch. 324, art. II, pt. 91 (West 2005).
140. See, e.g., Ann Arbor, Mich. Code, tit. v, ch. 63, § 5.650.
141. Mich. Comp. Laws Ann. § 324.9104(1) (West 2005).
142. Id. § 324.9106.
143. Iowa Code §§ 161A.5-12 (2003).
144. Id. § 161A.7.
145. Id. §§ 161A.4, 161A.7.
146. Conn. Gen. Stat. § 8-2(a) (2003).
147. 20 Ill. Comp. Stat. Ann. 662/1-99 (West 2004).
148. See id. at 662/5.
149. Id. at 662/15.
150. See Mass. Gen. Laws Ann. ch. 23B, § 3 (West 2004).
151. See Massachusetts Citizen Planner Training Collaborative, http:// www.umass.edu/masscptc/about.html (last visited Sept. 18, 2005) (on file with the Harvard Environmental Law Review).
152. Wash. Rev. Code § 36.70A (2004).
153. See Washington State Department of Fish and Wildlife, Fish and Wildlife and the Growth Management Act, available at http://wdfw.wa.gov/hab/ gma-phs.pdf.
154. Id. at 2-3.
155. See Wash. Rev. Code §§ 36.70A.030, 36.70A.050(3), 36.70A.170 (2004).
156. See WDFW Checklist for Reviewing Comprehensive Plans, Checklist for Reviewing Development Regulations and Criteria for Assessing Wildlife Potential of an Urban Area, http://www.wdfw.wa.gov/hab/gmapage.htm (last visited Dec. 2, 2005) (on file with the Harvard Environmental Law Review).
157. Utah Code Ann. § 11-38 (2004).
158. See Envision Utah, http://www.envisionutah.org/ (last visited Sept. 18, 2005) (on file with the Harvard Environmental Law Review).
159. See Introduction to Envision Utah, http://www.envisionutah.org/ index.php?id=NDY4 (last visited Nov. 29, 2003) (on file with the Harvard Environmental Law Review).
160. See also Envision Utah, Quality Growth Stategy and Technical Review (2000), available at http://www.envisionutah.org/January2000.pdf.
161. For a state-by-state survey of growth management provisions, see Environmental Law Institute/Defenders Of Wildlife, Planning For Biodiversity: Authorities In State Land Use Laws (2003).
162. See Me. Rev. Stat. Ann. tit. 30-A, § 4326 (2003).
163. See Minn. Stat. Ann. § 462.3535 (West 2005).
164. See Richmond, supra note 53, at 348-49.
165. Yan Song and Gerrit-Jan Knapp, Measuring Urban Form: Is Portland Winning the War on Sprawl?, J. Am. Plan. Ass'n, Spring 2004, at 211 (noting that Metro in Portland "is the only directly elected regional government in the United States"), available at http://www.planning.org/japa/ pdf/JAPAsong.pdf.
166. See Richmond, supra note 53, at 348-49.
167. Measure 37 was found unconstitutional on October 14, 2005 by the Circuit Court of Marion County in MacPherson v. Department of Administrative Services, No. OSC1044. The opinion is available at http:/ /www.friends.org/issues/documents/m37/constitutional-challenge /M37-Opinion-Order-MSJ.pdf. One basis for the decision is that Measure 37 "imposes limitations on government's exercise of plenary power to regulate land use in Oregon." Id/ at 12. The ballot title and text of Measure 37 are available at the website of the Oregon Secretary of State: http:/www.sos.state.or.us/elections/nov22004/m37_bt.pdf (last visited Nov. 1, 2005) (on file with the Harvard Environmental Law Review). Measure 37 is entitled: "Governments must pay owners, or forgo enforcement, when certain land use restrictions reduce property value." Id. The summary of the measure contained on the ballot reads: "Currently, Oregon Constitution requires government(s) to pay owner 'just compensation' when condemning private property or taking it by other action, including laws precluding all substantial beneficial or economically viable use. Measure enacts statute requiring that when state, county, metropolitan service district enacts or enforces land use regulation that restricts use of private property or interests therein, government must pay owner reduction in fair market value of affected property interest, or forgo enforcement." Id.
168. U.S. Dep't of Commerce, Advisory Committe on City Planning and Zoning, A Standard City Planning Enabling Act (1928). A PDF version of the original text of the Standard Act is available on the American Planning Association website at http://www.planning.org/growingsmart/ enablingacts.htm.
169. See Nelson Wikstrom, Councils of Governments 85 (1977) ("[C]ouncils, largely through federal stimulus, have become involved in a myriad array of specific functional planning activities.").
170. See id. at 85-101.
171. Id. at 130-31 ("Local officials identify more strongly than ever before with their respective council organizations."). ("Local officials identify more strongly than ever before with their respective council organizations")
172. Wikstrom made the point that the gatherings of local officials in regional councils promoted a healthy conversation among them. Id. at 84. ("Councils of governments have functioned rather successfully as forums for the discussion of common and regional problems."). See also Booher & Innes, supra note 37, at 21 ("Without this kind of dialogue, meanings will not become truly shared nor will identification develop with a common system or community. Without such dialogue, opportunities for reciprocity will be missed, important information about the problem will not surface, and creative solutions are far less likely to emerge.").
173. See N.Y. Gen. City Law § 20-g (Consol. 2005);
174. N.Y. Town Law § 284 (Consol. 2005);
175. N.Y. Village Law § 7-741 (Consol. 2005).
176. See, e.g., Village of Lowville, N.Y., and Town Of Lowville, N.Y., Agreement, Aug. 12, 1982 (creating joint planning board);
177. Town of Nunda, N.Y., Local Law One 1993 (adopted July 12, 1993) (creating joint Zoning Board of Appeals with the Village of Nunda);
178. Town of DeKalb, N.Y., Site Plan Review Law, Local Law 001 1991 (adopted Mar. 2, 1991) (establishing consolidated town and village planning board with the Village of Richville).
179. See also Monroe County Council of Governments Intermunicipal Cooperation Report 2001 (surveying cooperative efforts among 21 municipalities in the county, and reporting 385 agreements for 45 functions), available at http://www.growmonroe.com/documentView.asp?docID=1998.
180. See, e.g., Long Island Sound Watershed Intermunicipal Council (formed by an Intermunicipal Agreement, signed April 1, 1999, between the Cities of Mount Vernon, New Rochelle, and Rye, the Town of Mamaroneck, the Town-Village(s) of Harrison and Scarsdale, the Villages of Larchmont, Mamaroneck, Pelham Manor, and Rye Brook, which have jurisdiction over the watershed of Long Island Sound in Westchester County, N.Y.), available at http://www.liswic.org;
181. Monroe County Council of Governments (bylaws adopted May 25, 2000), available at http://www.growmonroe.com/ org267.asp?orgID=267&storytypeid=&storyID=&#doc.
182. See, e.g., N.Y. Gen. Mun. Law §§ 119-u, 239-d (McKinney 2005);
183. N.Y. Gen. City Law § 20-g (McKinney 2005);
184. N.Y. Town Law § 284 (McKinney 2005);
185. N.Y. Village Law § 7-741 (McKinney 2005).
186. See, e.g., Irondequoit Bay Management Project, Intermunicipal Agreement Between Town of Irondequoit, Town of Penfield, Town of Webster, County of Monroe, N.Y.S. Department of Environmental Conservation (July 1997);
187. Albany County Waterfront Committe, Intermunicipal Agreement between the County of Albany and the Mohawk and Hudson River Waterfront Municipalities in Albany County (July 18, 2000).
188. See Rockland Riverfront Communities Intermunicipal Agreement (Mar. 11, 2002).
189. Id. § 1 at 1.
190. Id. § 1 at 2.
191. Id. § 3 at 3.
192. See N.Y.S. Department of State, Quality Communities Clearinghouse, http:/ /qualitycommunities.org/index.asp (last visited Dec. 3, 2005) (on file with the Harvard Environmental Law Review).
193. See N.Y.S. Department of State Quality Communities Task Force, Quality Communities Demonstration Program Awards (Oct. 2000), http:// www.dos.state.ny.us/qcp/qcpawrds.html (on file with the Harvard Environmental Law Review).
194. Telephone interview with Carmella Mantello, Assistant Secretary of State, New York Department of State (May 2, 2000).
195. See infra Part IV.A-B.
196. N.Y. Town Law § 272-a(1)(e) (Consol. 2004) ("The participation of citizens in an open, responsible and flexible planning process is essential to the designing of the optimum town comprehensive plan.").
197. See also N.Y. Village Law § 7-722(1)(e) (Consol. 2004);
198. N.Y. Gen. City Law § 28-a(2)(e) (Consol. 2004).
199. N.Y. Town Law §§ 272-a(2)(c), 272-a(4) (Consol. 2004);
200. N.Y. Village Law §§ 7-222 (2)(C), 7-222(4) (Consol. 2004);
201. N.Y. Gen. City Law §§ 28-a(3)(c), 28-a (5) (Consol. 2004).
202. N.Y. Town Law § 272-a(6) (Consol. 2004);
203. N.Y. Village Law § 7-222(6) (Consol. 2004);
204. N.Y. Gen. City Law § 28-a(7) (Consol. 2004).
205. See Westchester Country Eexecutive's Task Force on Environment and Development, Collaborative Developments: A Report on Development Approvals Achieved Through Collaboration 2 (2003) ("Several recent developments in the Lower Hudson Valley of New York State illustrate a new approach to seeking land use approvals. In these cases, the approval processes emphasized inclusiveness, transparency, and accountability and produced proposals that unite and satisfy rather than divide and infuriate.").
206. See, e.g., Town of Wawayanda, N.Y. Code § 195-75 (1998).
207. N.Y. Town Law § 274-a(8) (Consol. 2004);
208. N.Y. Village Law § 7-725-a(8) (Consol. 2004);
209. N.Y. Gen. City Law § 27-a(8) (Consol. 2004).
210. Cal. Rptr. 2d 740, 742 (Cal. Ct. App. 2000).
211. See id. at 749.
212. P.2d 59, 67 (Haw. Ct. App. 1990).
213. P.2d 23 (Or. 1973) (Bryson, J., concurring).
214. Id. at 30 (Bryson, J., concurring).
215. See Idaho Code Ann. § 67-6510 (2001);
216. Pa. Cons. Stat. Ann. § 10908.1 (West 2005);
217. Haw. Rev. Stat. § 205-5.1(e) (2005) (for geothermal permits proposed in certain areas).
218. Information regarding Dover was obtained from the author's experience, interviews with several town officials, and three articles written by former students: Kristen Kelley ed., Aquifer Protection in Dover, in Smart Growth Case Studies (Starting Ground Series, Pace Land Use Law Center, 2003);
219. Jayne Daly, What's Really Needed to Effectuate Resource Protection in Communities, 20 Pace Envtl. L. Rev. 189 (2002);
220. and Brian Marcaurelle, Change and Innovation in Two Hudson Valley Communities: Lessons Learned from Warwick and Dover (Dec. 2003) (unpublished Masters project, Yale University, on file with the Harvard Environmental Law Review). The law school programs mentioned in this Part are the Environmental Litigation Clinic ("Pace Environmental Litigation Clinic") and the Land Use Law Center ("Pace Land Use Law Center"), separate institutions sponsored by Pace University School of Law.
221. See Marcaurelle, supra note 159, at 14.
222. See Kelley, supra note 159, at 9.
223. See Marcaurelle, supra note 159, at 14 (citing Daly, supra note 159).
224. See Kelley, supra note 159, at 9.
225. See Marcaurelle, supra note 159, at 14.
226. Id. at 14-15.
227. See id. at 16.
228. See Daly, supra note 159, at 199.
229. See Marcaurelle, supra note 159, at 17 (citing Dover, N.Y., Zoning Law (1999).
230. These overlay districts are found in the Code of the Town of Dover (updated Aug. 15, 2005) (Supp. No. 5), §§ 145-13 to 145-16, available at http://www.generalcode.com/webcode 2.html.
231. Dover was defended by the Pace Environmental Litigation Clinic.
232. See note 31, supra.
233. Information regarding Warwick was obtained from the author's experience, interviews with several town officials, and articles written by two former students: Kelley, supra note 159, at 11-15;
234. and Marcaurelle, supra note 159, at 2-13.
235. See Marcaurelle, supra note 159, at 2 (citing U.S. Census Bureau, 1990 Census of Population and Housing (1990)).
236. See Marcaurelle, supra note 159, at 2-3 (citing Town of Warwick, N.Y., Comprehensive Plan §§ 1.1, 1.2 (adopted Aug. 19, 1999) [hereinafter Warwick Comprehensive Plan]).
237. Marcaurelle, supra note 159, at 3 (citing Warwick Comprehensive Plan, supra note 173, § 1.3).
238. See id. (citing Warwick Comprehensive Plan, supra note 173, § 1.3).
239. Id.
240. Id.
241. Id.
242. See id. (citing Warwick Comprehensive Plan, supra note 173, § 1.3).
243. See id.
244. See id. at 5 (citing telephone interview by Brian Marcaurelle with Leonard DeBuck, Councilman, Town of Warwick, N.Y. (Nov. 3, 2003) [hereinafter DeBuck Interview]).
245. Marcaurelle, supra note 159, at 6 (citing Charlie Murphy, N.Y. Dep't of State, Guest Lecture at Albany Law School (Mar. 14, 2003)).
246. For details on the Pace Law School Land Use Law Center's LULA program, see note 31, supra.
247. See Kelley, supra note 159, at 11-12.
248. See Marcaurelle, supra note 159, at 6.
249. See Glynwood Center, Countryside Exchange Report: The Exchange in the Town of Warwick (2000), available at http://www.glynwood.org/resource/ ex_reports/reports_index.htm.
250. Id.
251. See id. (mentioning "residual sprawl overtaking the central part of the town").
252. Marcaurelle, supra note 159, at 7
253. See id.
254. (citing Jeffrey LeJava et al., Open Lands Acquisition: Local Financing Techniques Under New York State Law, Metropolitan Conservation Alliance Technical Paper Series, No. 2 (Mar. 2000) (on file with the Harvard Environmental Law Review)). The law in question is N.Y. Local Fin. Law §§ 33.10, 34.00 (Consol. 2004).
255. Marcaurelle, supra note 159, at 7.
256. See id. at 8 (citing DeBuck Interview, supra note 181).
257. Id. at 9-10.
258. Id. at 10-11 (citing Town of Warwick, N.Y., Zoning Law, art. 4 (2002)).
259. See id. at 11
260. (citing Leonard DeBuck, Councilman, Town of Warwick, N.Y., Codes Revision Timeline 1987-1999 in Warwick Planning Process: Presentation to Scenic Hudson (2000), available at http://www.scenichudson.org/rivercomm/ planning/warwick_debuck.pdf).
261. See Marcaurelle, supra note 159, at 11-12.
262. See also supra note 194 and accompanying text.
263. This Part is based on the author's experience; on telephone interviews with Ronald C. Brach, Executive Director, Legislative Commission on Rural Resources, in White Plains, N.Y. (2004);
264. and on a paper by Pace University School of Law student Daniel Laub, Surveying the Political Landscape: Land Use Reform Efforts in New York and Maryland (May 13, 2004) (unpublished manuscript, on file with the Harvard Environmental Law Review).
265. See Laub, supra note 197, at 3-4.
266. Id. at 4.
267. Id. at 5.
268. Senator Patricia K. McGee, Chair, New York State Legislative Commission on Rural Resources, Community Planning & Land Development Laws Enacted 1990-2003.
269. Laub, supra note 197, at Appendix I, 28-29 (citing 1991 N.Y. Laws ch. 657; 1991 N.Y. Laws ch. 692; 1992 N.Y. Laws ch. 248; 1993 N.Y. Laws ch. 208; 1991 N.Y. Laws ch. 629; 1992 N.Y. Laws ch. 247).
270. Laub, supra note 197, at Appendix I, 29-34 (citing 1992 N.Y. Laws ch. 230; 1992 N.Y. Laws ch. 663; 1992 N.Y Laws ch. 694).
271. Id. (citing 1992 N.Y. Laws ch. 724; 1995 N.Y. Laws ch. 417; 1993 N.Y. Laws ch. 209; 1995 N.Y. Laws ch. 418). (citing 1992 N.Y. Laws ch. 724; 1995 N.Y. Laws ch. 417; 1993 N.Y. Laws ch. 209; 1995 N.Y. Laws ch. 418)
272. Id. at Appendix I, 34-39 (citing 2003 N.Y. Laws ch. 213; 1997 N.Y. Laws ch. 451; 1998 N.Y. Laws ch. 411).
273. See N.Y.S. Assembly, http://www.assembly.state.ny.us/leg (last visited Nov. 29, 2005) (on file with the Harvard Environmental Law Review).
274. N.Y.S. Assembly Bill No. A07994 (S. 722) (pending 2005).
275. N.Y.S. Assembly Bill No. A05631 (Uni. S. 2749) (pending 2005).
276. N.Y.S. Assembly Bill No. A07985 (pending 2005).
277. N.Y.S. Assembly Bill No. A00484 (S 1762) (pending 2005);
278. N.Y.S. Assembly Bill No. S 02027 (pending 2005).
279. The information in this Part is adapted from a paper published by Pace University School of Law student Susan Huot, Breaking Down the Barriers to Statewide Land Use Reforms: A Case Study of Political Leadership and Citizen Participation in Wisconsin and Illinois, 28 Zoning & Plan. L. Rep. 1 (2005).
280. See also Ohm, supra note 60.
281. Wis. Stat. Ann. § 66.1001 (West 2004).
282. Wis. Stat. Ann. § 66.1001(3) (West 2005). These actions include official mapping, subdivision regulation, zoning, and shoreland zoning.
283. Wis. Stat. Ann. § 66.1001(2)(a)-(i) (West 2005). The nine elements are: issues and opportunities; housing; transportation; utilities and community facilities; agricultural, natural, and cultural resources; economic development; intergovernmental cooperation; land use; and implementation.
284. Wis. Stat. Ann. § 16.965(4) (West 2005).
285. Wis. Stat. Ann. § 66.1027(2)(a) (West 2005).
286. In Lake Bluff Housing Partners v. City of South Milwaukee, 540 N.W.2d 189, 190 (Wis. 1995), a developer purchased land intending to build low-income multi-family housing on the site. The city, responding to a neighbor's requests, re-zoned the property exclusively for single-family residential use. The court held that the developer had not established vested rights under the previous zoning and, because the zoning had changed, could not build the planned multi-family housing.
287. Id. at 199.
288. In Lake City v. City of Mequon, 558 N.W.2d 100, 108 (Wis. 1997), the Wisconsin Supreme Court held that "a city plan commission may rely on an element contained solely in a master plan to reject plat approval." This allowed the city to frustrate a multi-use development project simply by amending its master plan.
289. See Ohm, supra note 60, at 199-200.
290. State of Wisconsin, Office of the Governor, Exec. Order No. 236 (Sept. 15, 1994).
291. See id.
292. See Huot, supra note 211, at 6.
293. Id. at 2-3 (citing State Interagency Land Use Council, State of Wisonsin, Planning Wisconsin: Report of the Interagency Land Use Council to Governor Tommy Thompson (1996)). This recommendation recognizes the prior effective work of the Department of Urban and Regional Planning at the University of Wisconsin.
294. Telephone interview with Brian Ohm, Assistant Professor, University of Wisconsin, Madison (Mar. 22, 2004).
295. See id.
296. See id.
297. See Huot, supra note 211, at 3.
298. Id.
299. Id. at 4.
300. Wisconsin State Dep't of Administration, Office of Land Information Services, Comprehensive Planning Law Factsheet, http:// www.doa.state.wi.us/dir/documents/Factsheet_022804.pdf (last visited Nov. 1, 2005) (on file with the Harvard Environmental Law Review).
301. A.B. 608, 96th Leg., Reg. Sess. (Wis. 2003).
302. Id.
303. Huot, supra note 211, at 4.
304. See id.
305. On July 14, 2005, the Governor's office announced that Governor Doyle would "veto a provision added into the budget by legislative Republicans that would repeal the Smart Growth program initiated under Governor Thompson with wide bipartisan support." Press Release, State of Wisconsin, Office of the Governor, Governor Doyle Announces Budget Vetoes to Protect Wisconsin's Environment (July 18, 2005), available at http://www.1kfriends.org/documents/0718govveto.pdf. A new bill to repeal the Smart Growth Act was introduced in the Wisconsin Assembly on August 30, 2005, and was referred to the Committee on Rural Development. A.B. 645, 97th Leg., Reg. Sess. (Wis. 2005).
306. The Wisconsin and New York stories differ dramatically from early attempts to reform state land use laws. See John M. DeGrove, Land Growth & Politics 376-78 (1984). DeGrove studied the efforts in the 1970s and early 1980s to create growth management framework laws in seven states. He concluded that where such efforts were successful, the legislation was not a partisan effort. In most cases, efforts succeeded because of strong gubernatorial support and backing by strong legislative leaders. Where a broad base of support was lacking, however,
307. See A. Dan Tarlock, The Potential Role of Local Governments in Watershed Management, in New Ground: The Advent of Local Environmental Law 213, 232 (John R. Nolon ed., 2003). ("Watershed management provides an opportunity for local government to play a central role in the conservation of biodiversity and the promotion of environmentally sustainable development.... The local role should, instead, be exercised in partnerships with other units of government - both vertically and horizontally - and the major stakeholders in the watershed....").
308. Oliver Wendell Holmes, The Common Law 5 (Transaction Publishers 2005).
309. See supra Part IV.D.
310. See N.Y.S. Hudson River Valley Greenway, http:// www.hudsongreenway.state.ny.us/commcoun/overview.htm (last visited Nov. 30, 2005) (on file with the Harvard Environmental Law Review).
311. Marc Molinaro, Mayor, Village of Tivoli, N.Y., Remarks at the First Graduation Ceremony of the Local Land Use Leadership Alliance Training Program (1996).
312. See also generally http://www.marcmolinaro.com (last visited Nov. 29, 2005) (on file with the Harvard Environmental Law Review).
313. See also supra note 31. Thomas Jefferson, writing in 1816, concurred: "[M]aking every citizen an acting member of the government, and in the offices nearest and most interesting to him, will attach him by his strongest feelings to the independence of his country, and its republican constitution." Letter from Thomas Jefferson to Samuel Kercheval (July 12, 1816), in Thomas Jefferson - Writings, at 1399 (Merril Peterson ed., 1984).
314. See supra note 43 and accompanying text.
315. See Robert D. Putnam, Bowling Alone 18-28 (2000). Putnam's book adds a powerful additional reason to support local land use leadership: it discusses the importance of social capital in our democracy, noting that social contacts and "networks of community engagement" affect the productivity of individuals and groups. Explaining the purpose of his book, Putnam writes, "[w]e shall review hard evidence that our schools and neighborhoods don't work so well when community bonds slacken, that our economy, our democracy, and even our health and happiness depend on adequate stocks of social capital."
316. Id. at 27-28. He cites sources that show the decline, since 1985, of civic and social engagement in America, including the fact that Americans have become "40 percent less engaged in party politics and indeed in political and civic organizations of all sorts." He cites sources that show the decline, since 1985, of civic and social engagement in America, including the fact that Americans have become "40 percent less engaged in party politics and indeed in political and civic organizations of all sorts."
317. Id. at 46. Public programs and policies that encourage local leaders who form citizen coalitions in their communities to address land use issues, have the potential to reach citizens in nearly 40,000 counties, townships, and municipalities, most of which have legislatures that adopt land use laws, and planning and zoning boards that enforce them, all of which engage countless stakeholders affected by their actions. See supra note 19. Public programs and policies that encourage local leaders who form citizen coalitions in their communities to address land use issues, have the potential to reach citizens in nearly 40,000 counties, townships, and municipalities, most of which have legislatures that adopt land use laws, and planning and zoning boards that enforce them, all of which engage countless stakeholders affected by their actions. See supra note 19.
318. See Rogers, supra note 34.
319. See Gell-Mann, supra note 33.
320. See Booher & Innes, supra note 37.
321. See also Peter Calthorpe & William Fulton, The Regional City 126 (2001) (concluding that the Envision Utah experience, a voluntary regional land use program in the Salt Lake City area, "demonstrates that a regional plan is often more a process than a set of policies or a map. It is research, discovery and education combined. The process itself can fundamentally reframe the issue of growth and community and create a new vision of the region's economic and environmental future").
322. See also Robert Fishman, The Death and Life of American Regional Planning, in Reflections on Regionalism 107, 119 (Bruce Katz ed., 2000) ("American planning today is most effective and comprehensive precisely when it eschews all-embracing powers and works instead within the limits of the pluralistic systems that actually define the American-built environment.").
323. See Julian Conrad Juergensmeyer & Thomas E. Roberts, Land Use Planning and Development Regulation Law 21-22 (Thomson-West, Hornbook Series, 2d ed. 2003).
324. See Platt, supra note 5, at 169.
325. See also Juergensmeyer & Roberts, supra note 246, at 23-24.
326. For a comprehensive discussion of the adoption of the New York law, see Seymour I. Toll, Zoned American 143-87 (1969).
327. See A Standard State Zoning Enabling Act, supra note 21.
328. For surveys of the historical background of the standard enabling acts, see Stuart Meck, Model Planning and Zoning Enabling Legislation: A Short History, in 1 Am. Plan. Ass'n, Modernizing State Planning Statutes: The Growing Smart Working Papers 1, 1-10 (1996),
329. and Ruth Knack et al., The Real Story Behind the Standard Planning and Zoning Acts of the 1920s, 48 Land Use L. & Zoning Dig. 3, 3 (Feb. 1996).
330. See A Standard City Planning Enabling Act, supra note 21.
331. See Juergensmeyer & Roberts, supra note 246, at 16-23.
332. U.S. 365 (1926).
333. See Juergensmeyer & Roberts, supra note 246, at 24.
334. See also Toll, supra note 247, at 204 ("By the late twenties, only six states had cities with neither zoning ordinances nor a completed comprehensive plan.").