3
This article was downloaded by: [University Of Pittsburgh] On: 31 October 2014, At: 13:28 Publisher: Routledge Informa Ltd Registered in England and Wales Registered Number: 1072954 Registered office: Mortimer House, 37-41 Mortimer Street, London W1T 3JH, UK Journal of the American Planning Association Publication details, including instructions for authors and subscription information: http://www.tandfonline.com/loi/rjpa20 The Quiet Revolution -Success and Failure Daniel R. Mandelker Published online: 26 Nov 2007. To cite this article: Daniel R. Mandelker (1989) The Quiet Revolution -Success and Failure, Journal of the American Planning Association, 55:2, 204-205, DOI: 10.1080/01944368908976019 To link to this article: http://dx.doi.org/10.1080/01944368908976019 PLEASE SCROLL DOWN FOR ARTICLE Taylor & Francis makes every effort to ensure the accuracy of all the information (the “Content”) contained in the publications on our platform. However, Taylor & Francis, our agents, and our licensors make no representations or warranties whatsoever as to the accuracy, completeness, or suitability for any purpose of the Content. Any opinions and views expressed in this publication are the opinions and views of the authors, and are not the views of or endorsed by Taylor & Francis. The accuracy of the Content should not be relied upon and should be independently verified with primary sources of information. Taylor and Francis shall not be liable for any losses, actions, claims, proceedings, demands, costs, expenses, damages, and other liabilities whatsoever or howsoever caused arising directly or indirectly in connection with, in relation to or arising out of the use of the Content. This article may be used for research, teaching, and private study purposes. Any substantial or systematic reproduction, redistribution, reselling, loan, sub-licensing, systematic supply, or distribution in any form to anyone is expressly forbidden. Terms & Conditions of access and use can be found at http:// www.tandfonline.com/page/terms-and-conditions

The Quiet Revolution -Success and Failure

Embed Size (px)

Citation preview

Page 1: The Quiet Revolution -Success and Failure

This article was downloaded by: [University Of Pittsburgh]On: 31 October 2014, At: 13:28Publisher: RoutledgeInforma Ltd Registered in England and Wales Registered Number: 1072954 Registered office: Mortimer House,37-41 Mortimer Street, London W1T 3JH, UK

Journal of the American Planning AssociationPublication details, including instructions for authors and subscription information:http://www.tandfonline.com/loi/rjpa20

The Quiet Revolution -Success and FailureDaniel R. MandelkerPublished online: 26 Nov 2007.

To cite this article: Daniel R. Mandelker (1989) The Quiet Revolution -Success and Failure, Journal of the American PlanningAssociation, 55:2, 204-205, DOI: 10.1080/01944368908976019

To link to this article: http://dx.doi.org/10.1080/01944368908976019

PLEASE SCROLL DOWN FOR ARTICLE

Taylor & Francis makes every effort to ensure the accuracy of all the information (the “Content”) containedin the publications on our platform. However, Taylor & Francis, our agents, and our licensors make norepresentations or warranties whatsoever as to the accuracy, completeness, or suitability for any purpose of theContent. Any opinions and views expressed in this publication are the opinions and views of the authors, andare not the views of or endorsed by Taylor & Francis. The accuracy of the Content should not be relied upon andshould be independently verified with primary sources of information. Taylor and Francis shall not be liable forany losses, actions, claims, proceedings, demands, costs, expenses, damages, and other liabilities whatsoeveror howsoever caused arising directly or indirectly in connection with, in relation to or arising out of the use ofthe Content.

This article may be used for research, teaching, and private study purposes. Any substantial or systematicreproduction, redistribution, reselling, loan, sub-licensing, systematic supply, or distribution in anyform to anyone is expressly forbidden. Terms & Conditions of access and use can be found at http://www.tandfonline.com/page/terms-and-conditions

Page 2: The Quiet Revolution -Success and Failure

The Quiet Revolution - Success and Failure Daniel R. Mandelker

In “Understanding American Land Use Regulation Since 1970” (IAPA 54,3: 291-301), Frank Popper makes a fair appraisal of the “Quiet Revolution” that blazed in the heady 1970s, but I do not entirely agree with his analysis. His conclusion that the revolution lives on in an evolving stage ignores major changes that have oc- curred in the structure of state land use regulation. Nor do I agree with his liberal-conservative explanation of the political support for land use regulation at the state level.

The political analysis requires discussion first. Con- centrating political power over land use regulation at higher governmental levels is not necessarily either a liberal or a conservative strategy. Some critics of the Quiet Revolution argue that it was essentially a conser- vative strategy because political concentration improves opportunities for capture by special interests. The sad history of the federal Highway Beautification Act, which the billboard industry has managed to cripple, is an ex- ample. Nor does a conservative political philosophy nec- essarily disfavor concentration of political power. The centralization of political power over local governments in Thatcher’s Britain is a recent example of centralization to implement a conservative political agenda.

Popper apparently sees the state land use programs as thriving and self-correcting regulatory regimes. This analysis ignores the complex regulatory and intergov- ernmental systems that exist and the complete and partial failures that have occurred along with the successes. What is needed, and what would be most helpful to land use lawyers and planners, is a careful analysis of the successes and failures and of the regulatory system that has emerged. We are just beginning to get a literature on these issues in the work of John DeGrove and others, but nothing major has been done for state planning since Walter Steiss wrote his seminal APA monograph years ago. The difficulties recently faced by New Jersey in drafting its state plan illustrate all too painfully the lack of an adequate conceptual framework for state planning.

There are also problems with the comprehensive- versus-single-purpose classification Popper uses to de- scribe state land use programs. The Oregon land use law is comprehensive because it covers the entire state, but

the state planning guidelines it contains are focused on a limited number of planning goals. The primary emphasis is on urban growth management and agricultural pres- ervation. The state coastal wetlands programs are single- purpose because they are limited to a single resource within the state, but they are also comprehensive because they cover this environmental resource wherever it is located.

A more helpful classification would be multidimen- sional. It would emphasize such critical features as whether the state program relies on local implementation or state regulation, whether it relies on conventional land use regulation or a direct permitting system, and whether it contains a planning element. Another important dis- tinction is whether the state program applies compre- hensively to all land use or whether it is restricted to the protection of environmentally vulnerable areas. Popper is aware of this distinction, but concludes that single- purpose programs can be comprehensive if there are enough of them. This is not necessarily so.

Whether the state program has a planning component and whether it is limited to environmental areas are major issues. Most of the state land use programs do not have a planning component. The American Law Institute’s Model Land Development Code, for example, on which Florida initially based its state land use system, clearly rejected a planning base for state land use controls. nor- ida has now made significant amendments to its program that incorporate a planning base, and New Jersey’s recent state land use effort began with a state plan. The trend throughout land use regulation, indeed, is toward rec- ognition of the role of the plan, and states continue to add mandatory planning and plan consistency require- ments to their land use statutes.

The environmental focus of much state land use reg- ulation also requires attention, especially because most recently adopted state land use programs are limited to vulnerable environmental areas. One major question is whether an environmental focus is enough at the state level or whether a more comprehensive system including other areas of concern is needed. Another question is whether the distinctive format of environmentally pro- tective legislation, which usually omits a planning com- ponent and relies on direct state permitting, is an ac- ceptable foundation for state land use programs. The physical determinism of environmentally based state land use programs, which single out environmentally vulner- able areas for protection, makes a planning element seem unnecessary. Planning can still be helpful, though, es- pecially in agricultural land protection programs where some loss of agricultural land is anticipated and the prob- lem is priority and pace of development.

Popper also ignores the failure of most state land use programs to incorporate the American Law Institute’s Model Land Development Code recommendation that state controls provide a basis for assuring affordable housing despite local objections. To be sure, many states have adopted legislation that protects other unwanted

APA JOURNAL 204 SPRING 1989

Dow

nloa

ded

by [

Uni

vers

ity O

f Pi

ttsbu

rgh]

at 1

3:28

31

Oct

ober

201

4

Page 3: The Quiet Revolution -Success and Failure

land uses such as group homes, but this is again special- purpose and a development Popper largely ignores. This protective legislation deserves attention in any review of developments in land use regulation since 1970.

Popper is correct in stating that land use politics is marked by pluralism, but his history is not always ac- curate. From what I remember of the time, for example, the National Land Use Policy Act failed because Chicago Mayor Richard Daley’s delegation in the House of Rep- resentatives voted against the bill. They did so because Daley was worried that the state land use programs the bill funded would strengthen the Republican governor in an expressway battle in Chicago. So much for pluralism in land use politics! ~

Mandelker is Stamper Professor of Law at Washington University in St. Louis and the author of Environmentul and Land Controls Legislation, a legal treatise on state land use programs. He was counsel to the State of Hawaii Department of Planning and Economic Development from 1972 until 1978, and to the State of Vermont in the Pyramid Mall litigation under Act 250.

Centralized Control: Do We Want a Double-Veto System? William A. Fischel

There is much to admire in Frank Popper’s assessment of the evolution of American land use regulation since 1970. He points out that the Quiet Revolution slowed down and failed to achieve its goal of comprehensive national regulation, but he then persuasively argues that the impetus that drove it is thriving in several states and in special federal programs. He sensibly counsels planners to get used to this heterogeneous regulatory climate and not worry about whether it is conservative or liberal. And he has given me a quotation to treasure-the one about the ASP0 director who believed that adoption of national planning legislation in the middle 1970s would increase planners’ average yearly incomes by $2,000, a good piece of change in those days.

What I miss in Popper’s assessment is a recognition that increasingly centralized control has arrived in a spe- cial package-the double-veto arrangement. The higher regulatory agency-state, regional, or federal-hardly

ever tells a lower level of government that it must accept a development proposal that the locals do not want. A developer climbing up the new regulatory ladders of the quiet revolution can go from no to no, yes to no, and yes to yes, but cannot get from no to yes. (I am cautioned here by the story of the linguist who asserted at a con- ference that sometimes a double negative means no and sometimes it means yes, but that under no circumstances did a double positive mean anything but yes. To which a sarcastic voice in the back of the room replied, “Yeah, yeah.”) As a result, it has in the last 20 years become a lot easier for people outside a community to stop a pro- posed development than to get one going.

I know there are exceptions. The Massachusetts Anti- Snob Zoning Law makes localities accept apartment units in some circumstances, and Oregon’s Land Conservation and Development Commission has called for suburbs close to urbanized areas to zone for higher densities. (New Jersey’s Mount Laurel requirements are not to my mind in the same category because their impetus comes from a judiciary that deliberately sought to supplant the democratic process that animates other state land-use legislation.) The effectiveness of such laws is not clear, but that need not detain us from making the point that these laws are far less common than the double-veto arrangements.

Allowing a higher level of government to stop a locally desired development is not in principle a bad thing if the development would have imposed substantial net costs beyond the borders of the locality. Intermunicipal spill- overs are the most economically persuasive rationale for having a higher layer of land use regulation. But spillovers come in both good and bad forms. A power plant may create unsightly transmission towers outside the com- munity, but it also creates lower electricity costs that will facilitate regional economic development. A shopping center may create more traffic on roads in other com- munities, but it also provides a greater variety of goods for all. A pulp mill in one community may place additional demands on the forests of neighboring rural towns, but it also provides jobs for their blue-collar workers who would otherwise have to move away.

I am not arguing here that higher-level governments should simply force local governments to accept things they do not want. Like private individuals whose property is taken by the government, local governments should be compensated when they have to bear special burdens for the benefit of the region as a whole. What I am arguing here is that the double-veto system skews the decision away from considering spillover benefits. The nearly ex- clusive attention to external costs of development has contributed to, among other things, a garbage disposal crisis in a country that has vast amounts of land where no one lives.

Neglect of the special character of the new regulatory structures can be misleading to planners. Popper men- tions suburban gridlock, LULUs, and affordable housing among the “daunting menu” of current land use prob- lems. The unwary planner might suspect that the solution

APA JOURNAL 205 SPRING 1989

Dow

nloa

ded

by [

Uni

vers

ity O

f Pi

ttsbu

rgh]

at 1

3:28

31

Oct

ober

201

4