<DOC>
[107 Senate Hearings]
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S. Hrg. 107-955
SMART GROWTH AND ECONOMIC DEVELOPMENT
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON
ENVIRONMENT AND PUBLIC WORKS
UNITED STATES SENATE
ONE HUNDRED SEVENTH CONGRESS
SECOND SESSION
ON
S. 995, A BILL TO IMPROVE ENVIRONMENTAL POLICY BY PROVIDING ASSISTANCE
FOR STATE AND TRIBAL LAND USE PLANNING, TO PROMOTE IMPROVED QUALITY OF
LIFE, REGIONALISM, AND SUSTAINABLE ECONOMIC DEVELOPMENT, AND FOR OTHER
PURPOSES
S. 1079, A BILL TO AMEND THE PUBLIC WORKS AND ECONOMIC DEVELOPMENT ACT
OF 1965 TO PROVIDE ASSISTANCE TO COMMUNITIES FOR THE REDEVELOPMENT OF
BROWNFIELD SITES
__________
MARCH 6, 2002
__________
Printed for the use of the Committee on Environment and Public Works
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_______________________________________________________________________
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COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
one hundred seventh congress
second session
JAMES M. JEFFORDS, Vermont, Chairman
MAX BAUCUS, Montana BOB SMITH, New Hampshire
HARRY REID, Nevada JOHN W. WARNER, Virginia
BOB GRAHAM, Florida JAMES M. INHOFE, Oklahoma
JOSEPH I. LIEBERMAN, Connecticut CHRISTOPHER S. BOND, Missouri
BARBARA BOXER, California GEORGE V. VOINOVICH, Ohio
RON WYDEN, Oregon MICHAEL D. CRAPO, Idaho
THOMAS R. CARPER, Delaware LINCOLN CHAFEE, Rhode Island
HILLARY RODHAM CLINTON, New York ARLEN SPECTER, Pennsylvania
JON S. CORZINE, New Jersey BEN NIGHTHORSE CAMPBELL, Colorado
Ken Connolly, Democratic Staff Director
Dave Conover, Republican Staff Director
C O N T E N T S
----------
Page
MARCH 6, 2002
OPENING STATEMENTS
Campbell, Hon. Ben Nighthorse, U.S. Senator from the State of
Colorado....................................................... 30
Chafee, Hon. Lincoln, U.S. Senator from the State of Rhode Island 2
Jeffords, Hon. James, U.S. Senator from the State of Vermont..... 1
Wyden, Hon. Ron, U.S. Senator from the State of Oregon........... 4
WITNESSES
Anderson, Deb, director, Wood Partners, Durham, NC, representing
the National Multi Housing Council............................. 17
Prepared statement........................................... 197
Bentley, Mary Lou, executive director, Western Nevada Development
District, Carson City, NV, representing the National
Association of Development Organizations....................... 23
Prepared statement........................................... 219
Chen, Don, director, Smart Growth America, Washington, DC........ 19
Prepared statement........................................... 211
Garczynski, Gary, president, National Association of Home
Builders, Washington, DC....................................... 22
Prepared statement........................................... 215
Responses to additional questions from Senator Jeffords...... 217
Humstone, Elizabeth, executive director, Vermont Forum on Sprawl,
Burlington, VT, representing the American Planning Association. 15
Prepared statement........................................... 40
Levin, Hon. Carl, U.S. Senator from the State of Michigan........ 6
Prepared statement........................................... 7
Sampson, David, Assistant Secretary for Economic Development,
U.S. Department of Commerce.................................... 10
Prepared statement........................................... 30
Responses to additional questions from:
Senator Jeffords......................................... 35
Senator Smith............................................ 39
ADDITIONAL MATERIAL
Comments, Paul S. Barru on behalf of the American Road and
Transportation Builders Association; International Council of
Shopping Centers; National Apartment Association; National
Association of Home Builders; National Association of
Industrial and Office Properties; National Association of
Realtors; National Multi Housing Council; and Self Storage
Association.................................................... 199
Letters from:
American Institute of Architects, American Planning
Association, American Society of Landscape Architects,
Defenders of Wildlife, National Association of Regional
Councils, Natural Resources Defense Council, National Trust
for Historic Preservation, National Wildlife Federation,
Scenic America, Sierra Club, Smart Growth America.......... 47
Vermont Forum on Sprawl, Association of Vermont Conservation
Commissions, Conservation Law Foundation, Friends of the
Earth, Preservation Trust of Vermont, Vermont Public
Interest Research Group, Vermont Natural Resources Council,
Vermont Planners Association............................... 48
Statement, National Association of Realtors...................... 221
Survey, American Planning Association, Planning for Smart Growth,
2002 State of the States.......................................50-196
Texts of bills:
S. 975, Community Character Act of 2001.....................224-236
S. 1079, Brownfield Site Redevelopment Assistance Act of 200237-250
SMART GROWTH AND ECONOMIC DEVELOPMENT
----------
WEDNESDAY, MARCH 6, 2002
U.S. Senate,
Committee on Environment and Public Works,
Washington, DC.
The subcommittee met, pursuant to notice, at 9:34 a.m. in
room 406, Dirksen Senate Office Building, Hon. James M.
Jeffords (chairman of the committee) presiding.
Present: Senators Jeffords, Chafee, and Wyden.
Also present: Senator Levin.
OPENING STATEMENT OF HON. JAMES M. JEFFORDS, U.S. SENATOR FROM
THE STATE OF VERMONT
Senator Jeffords. Good morning. I'd like to begin by
thanking all the witnesses for participating in today's
hearing. I am really looking forward to listening to your
testimonies.
Today's hearing stems from a long-term interest in helping
our cities and towns become economically vibrant and culturally
cohesive communities. One of the best ways to support these
efforts is to provide our communities with growth planning and
redevelopment tools.
I have always been involved in smart growth efforts since
the 1960's, when I served as a Vermont State Senator and
Attorney General of Vermont. I'm proud to have had a major role
in drafting Vermont's development review plans that became Act
250, the first and most comprehensive State-level growth
management policy in the United States.
I have continued my activities with regard to smart growth
during my tenure in both the House and Senate. In January 1999,
I established a Senate Smart Growth Task Force, a bipartisan
and multi-regional caucus. Twenty-three Senators currently
participate in the task force. The overall goal of the task
force is to determine how the Federal Government can help
States and localities address their own growth management
problems.
Growth decisions should be made ultimately at the local
level; however, the Federal Government needs to continue
assessing Federal policies that may interfere with local
government growth management. For example, the national
interstate system has had a tremendous impact upon local
development patterns. Over the past 10 years, we have brought
substantial attention to the issue through the transportation
and planning process. We will address this issue in our
upcoming hearing on transportation and smart growth.
The Federal Government also needs to provide communities
with the necessary tools and resources to achieve local growth
objectives. I believe that the two bills before us today help
us make great strides in that direction.
With the recent enactment of the Small Business Liability
Relief and Brownfields Revitalization Act, we have made great
progress in addressing local liability and financial concerns.
Through the Brownfields Site Redevelopment Assistance Act, we
have an opportunity to complement these efforts. S. 1079 will
address the next step after assessment and cleanup. The step is
which communities actually begin redeveloping the sites.
The economic benefits are incredible. The U.S. Conference
of Mayors estimates that brownfields redevelopment could
regenerate more than 550,000 additional jobs and up to $2.4
billion in new tax revenues for the cities.
The other bill we will discuss today is the Community
Character Act. The bill presents another important opportunity
to provide communities that wish to plan prospectively and
proactively with the resources to do so. This is especially
important in my home State of Vermont. Rural communities
frequently grapple with the lack of planning and resources and
expertise. I recently learned from the distinguished Vermont
witness that only 39 percent of rural governments do
comprehensive planning, versus more than 70 percent of the
metropolitan governments doing so. S. 975 provides necessary
resources to even out that ratio.
Finally, I am in the process of working on another smart
growth legislative proposal. It will substantially improve
decisionmaking capacity for local planners. The legislation
will provide communities with the resource to access
revitalization and modeling and other planning tools. I look
forward to working with EPW colleagues on this legislation.
I now turn to my good friend from Rhode Island. I
appreciate the work you've done, especially more recent passage
of the brownfields bill. You've done a great job and you are a
great Senator.
OPENING STATEMENT OF HON. LINCOLN CHAFEE, U.S. SENATOR FROM THE
STATE OF RHODE ISLAND
Senator Chafee. Thank you, Mr. Chairman. Good morning.
I introduced this legislation on May 25, 2001, and was
joined by Senators Bennett, Specter, Jeffords, Cleland, Levin,
Bingaman, and Lieberman in introducing the Community Character
Act.
The bill provides Federal assistance to States and Indian
tribes to create or update State-wide or tribal land use
planning legislation. Up-to-date planning legislation empowers
States and local governments to spur economic development,
protect the environment, coordinate transportation
infrastructure needs, and preserve our communities.
America has grown from east to west, as well as from an
urban setting to a suburban one. The Nation's sweeping growth
can be attributed to many things, including a strong economy
and transportation and technology advancements that allow
people to live greater distances from work due, in part, to
inadequate planning, strip malls, and retail development
catering to the automobile have become the trademark of the
American landscape.
In the wake of the post-World War II building boom, my home
town of Warwick, RI, had experienced the type of development
that too often offends the eye and saps our economic strength.
Due to a lack of planning, incremental and haphazard
development occurred through a mixture of incompatible zoning
decisions. Industrial and commercial facilities and residential
homes were frequently and inappropriately sited next to each
other. The local newspaper described the city as a suburban
nightmare. However, we learned that proper approaches to
planning would help every State meet its challenges, whether it
is preserving limited open space in the east or protecting
precious drinking water supplies in the west.
The Community Character Act will benefit each community and
neighborhood by authorizing the Economic Development
Administration to provide $25 million per year to States and
tribes for the purpose of planning. The bill recognizes that
land use planning is appropriately vested at the State and
local levels and accords States and tribes flexibility in using
their grants. The bill does not prescribe any particular
approach to land use planning because, of course, each
community must decide for itself what is appropriate. Mistakes
made through haphazard development are very costly and not
easily erased. Once started down that path, communities may
feel like they can never get their head above water.
I view this legislation as an opportunity for the Federal
Government to play a limited but helpful role. In the past, the
Federal Government has been more of a culprit than a partner.
Through enactment of numerous and oftentimes incompatible laws
regarding transportation, housing, environment, energy, and
economic development, the Federal Government has created demand
for State and local planning.
The Community Character Act should be viewed as providing
the Federal payment for a non-funded mandate whose account is
overdue. The Senators who have sponsored the bill represent
geographically diverse States, from Rhode Island to New Mexico,
from Georgia to Utah. This bipartisan bill represents a small
investment in our communities, but one that will yield large
dividends to communities in each corner of the Nation.
I note that one of the cosponsors is Senator Bennett. Of
course millions all over the world, if not billions, saw the
value of Salt Lake City, but that city, evidenced by the fact
that Senator Bennett is cosponsor, is experiencing lack of
planning in its growth, and Senator Bennett said in 1846 when
Brigham Young came over the mountains he was not well, and he
was lying in his covered wagon, and as they came over the
mountain they asked, ``How does it look,'' and he sat up in his
wagon and said, ``This is the right place, move on.'' Of
course, Salt Lake City was developed. We want it to be
beautiful, and I think this bill would help make it stay
beautiful, as millions around the world, billions around the
world saw what a beautiful place it is. We want to make sure it
stays that way, and all over the rest of the United States,
also.
Thank you, Mr. Chairman.
[The prepared statement of Senator Chafee follows:]
Statement of Hon. Lincoln D. Chafee, U.S. Senator from the State of
Rhode Island
Good morning. Thank you, Mr. Chairman, for conducting today's
hearing on the Community Character Act of 2001. I introduced this
legislation on May 25, 2001 and was joined by Senators Bennett,
Specter, Jeffords, Cleland, Levin, Bingaman, and Lieberman. The bill
provides Federal assistance to States and Indian tribes to create or
update statewide or tribal land use planning legislation. Up-to-date
planning legislation empowers States and local governments to spur
economic development, protect the environment, coordinate
transportation and infrastructure needs, and preserve our communities.
America has grown from East to West, as well as from an urban
setting to suburban one. The nation's sweeping growth can be attributed
to many things, including a strong economy and transportation and
technology advancements that allow people to live greater distances
from work. Due in part to inadequate planning, strip malls and retail
development catering to the automobile have become the trademark of the
American landscape.
In the wake of the post-World War II building boom, my hometown of
Warwick, Rhode Island had experienced the type of development that too
often offends the eye and saps our economic strength. Due to a lack of
planning, incremental and haphazard development occurred through a
mixture of incompatible zoning decisions. Industrial and commercial
facilities and residential homes were frequently and inappropriately
sited next to each other. The local newspaper described the city as a
``suburban nightmare''. However, we learned that proper approaches to
planning would help every State meet its challenges, whether it is
preserving limited open space in the East or protecting precious
drinking water supplies in the West.
The Community Character Act will benefit each community and
neighborhood by authorizing the Economic Development Administration to
provide $25 million per year to States and tribes for the purpose of
planning. The bill recognizes that land use planning is appropriately
vested at the State and local levels, and accords States and tribes
flexibility in using their grants. The bill does not prescribe any
particular approach to land use planning, because each community must
decide for itself what is appropriate.
Mistakes made through haphazard development are very costly and not
easily erased. Once started down that path, communities may feel like
they can never get their head above water. I view this legislation as
an opportunity for the Federal Government to play a limited, but
helpful role. In the past, the Federal Government has been more of a
culprit than a partner. Through enactment of numerous and often-times
incompatible laws regarding transportation, housing, environment,
energy, and economic development, the Federal Government has created a
demand for State and local planning. The Community Character Act should
be viewed as providing the Federal payment for an unfunded mandate
whose account is overdue.
The Senators who have sponsored this bill represent geographically
diverse States, from Rhode Island to New Mexico and from Georgia to
Utah. This bipartisan bill represents a small investment in our
communities, but one that will yield large dividends to communities in
each corner of the Nation.
Thank you, Mr. Chairman.
Senator Jeffords. Thank you.
Do you have a statement, Senator Wyden?
OPENING STATEMENT OF HON. RON WYDEN, U.S. SENATOR FROM THE
STATE OF OREGON
Senator Wyden. Thank you, Mr. Chairman. First let me say
I'm glad you are on the mend. I think last night we were
concerned that you were ill, so I'm glad you're here and able
to chair.
Senator Jeffords. Thank you.
Senator Wyden. Congratulations to you for all the work that
you've done on smart growth issues over the years, really going
back to your days as Attorney General, and also to Senator
Chafee and Senator Levin, who have really championed these
issues for some time.
What is so striking is how little the Federal Government
has done over the years to promote smart growth. I think
Senator Levin might even remember that Senator Jackson of
Washington State was one of the first to introduce a smart
growth bill years ago when he was in the U.S. Senate, and it
was basically labeled a communist plot. This very modest bill
that Senator Jackson from my region had introduced was
essentially described as a Federal zoning bill, an approach
that was going to sweep out all efforts at the State and local
level to promote smart growth. So it is striking that finally
government at all levels is recognizing how important it is by
the work that Senator Levin and Senator Chafee are doing, and,
of course, the work that our chairman has done over the years
has been a great catalyst.
At this point, as far as I can tell, there is only one
Federal law on the books that promotes smart growth. I admit to
being a little biased, because it came from this committee, and
Senator Moynihan helped me put it in place. What we did as part
of TEA-21 in 1997 was author the first program to provide
incentives for State and local government to promote local
smart growth policies. It's called the Transportation and
Community System Preservation Act, by the way. Then chairman
John Chafee was very supportive of that effort, as well. In
just 5 years this particular program has grown from a modest
$20 million program to one that provides over $100 million of
funding for smart growth projects that are connected to
transportation this year.
It seems to me what Senator Chafee's legislation does is
build on that effort with TEA-21 to provide comprehensive smart
land use planning by States, tribes, and cities so as to take a
similar approach to economic development that the TEA-21 pilot
project program has used in the transportation area.
My home State of Oregon, we consider ourselves pioneers in
the development of smart growth. Brownfield redevelopment
really combines smart growth and a variety of other public
policies that make sense because it is certainly less costly to
redevelopment formerly contaminated brownfield sites than to
build in pristine greenfield sites that contribute to urban
sprawl, so this type of redevelopment that turns polluted
former industrial sites into new homes and new businesses is
probably the ultimate form of recycling and smart growth.
I congratulate the sponsors, and I look forward to Senator
Levin's contribution this morning. His legislation recognizes
that the process of redevelopment doesn't end when the
pollution is cleaned up, and that the Federal Government can
help communities complete the process of revitalization and
ensure that these sites are recycled into productive use.
I look forward to working with you and our colleagues, Mr.
Chairman.
Senator Jeffords. Thank you for your excellent statement.
Now we turn to Carl Levin. He is the sponsor of S. 1079,
the Brownfield Site Redevelopment Assistance Act, which is one
of the two bills being discussed here today. Senator Levin is
also my co-chair on the Senate Smart Growth Task Force.
It is a pleasure to have you here. Please proceed.
STATEMENT OF HON. CARL LEVIN, U.S. SENATOR FROM THE STATE OF
MICHIGAN
Senator Levin. Mr. Chairman, thank you. Senator Wyden,
Senator Chafee, it is good to be with you all on a subject that
is dear to the hearts of all of us. You've all been very deeply
involved in smart growth efforts. We've had some successes
actually recently in the smart growth area with the Brownfields
Act, which eliminated some of the liability problems which
prevented brownfields from being cleaned up and redeveloped.
That was a great success story which this committee was very
deeply involved in, and I congratulate you for it. You've all
been involved in this effort.
As Senator Jeffords just mentioned, he and I co-chair a
task force, a Smart Growth Task Force which is bipartisan,
which is also multi-regional. All of our regions in one way or
another are very deeply involved in this area. We are affected
when we do not grow smartly, when we just use up greenfields
and we don't recycle land. We recycle bottles and cans and
newspapers. We have to recycle our land, too, and not just let
it go to waste, as we too often have.
The two bills which are before you today are efforts in
this direction. In the bill that was referred to, the
Brownfield Site Redevelopment Assistance Act, which is Senate
bill 1079, we do a number of things in that bill. We provide
additional funds, $60 million each year for 5 years, for
brownfields redevelopment. This will give the EDA the authority
to provide grants for brownfields redevelopment projects,
including development of public facilities; business
development, including revolving loan funds; technical
assistance and training; activities to help communities
diversify their economies; and encourage in-fill development.
EDA has a current cap on their authorization appropriations
at $335 million. We would add $60 million for this particular
focus, purpose.
Until this year, the EDA has made brownfields redevelopment
as one of its priorities, but in this year's EDA request they
leave out that designation. In other words, with the limited
pot of money that it has, when it submitted its budget this
year brownfields redevelopment was not included as a funding
priority, meaning there is not as strong a commitment at the
EDA, if their budget is adopted as presented, as there has been
in recent years where there was a priority given to brownfields
redevelopment. So the adoption of our bill will help give a
priority to that redevelopment, as well as some additional
funding for it.
We have the support of a whole host of organizations, and
I'll end with just this very brief reference. These are just
some of the organizations which support this legislation: the
National Association of Counties, the National Association of
Towns and Townships, the National League of Cities, the U.S.
Conference of Mayors, Council for Urban Economic Development,
the Enterprise Foundation, National Association of Business
Incubators, National Association of Development Organizations,
National Association of Regional Councils, National Congress
for Community Economic Development and Smart Growth America.
There are other entities, as well.
I want to thank you, Mr. Chairman and members of this
committee, for holding this hearing, for your support for smart
growth. You've all been leaders in this effort, and I feel that
I am not only among friends in presenting my thoughts to you,
but that in many cases you are way ahead of me in a number of
these areas, and it is a real treat just to be with people who
are so committed to a very important cause.
Senator Jeffords. Thank you very much.
[The prepared statement of Senator Levin follows:]
Statement of Hon. Carl Levin, U.S. Senator from the State of Michigan
Mr. Chairman and members of the committee, thank you for holding
today's hearing on smart growth issues.
It is my honor to co-chair the Senate Smart Growth Task Force with
Chairman Jeffords. We established this multi-regional bipartisan task
force in 1999 to provide Senators with a forum to consider and
coordinate efforts concerning sustainable growth patterns. The overall
goal of the Task Force is to determine and promote ways the Federal
Government can assist States and localities to address their own growth
management issues. As part of that effort we have jointly sponsored and
supported legislation that we believed would achieve this goal. Two of
these bills are the focus of today's hearing: The Brownfield Site
Redevelopment Assistance Act of 2001 (S. 1079); and The Community
Character Act (S. 975).
Mr. Chairman, under your leadership I am hopeful that these two
important community development bills can be enacted this year. They
will provide States and communities with the tools they need to better
plan for land use and development in order to improve the quality of
life of our citizens.
Brownfields redevelopment is one of the most important ways to
revitalize cities and implement growth management. The redevelopment of
brownfields is a fiscally sound way to bring investment back to
neglected neighborhoods, cleanup the environment, reuse infrastructure
that is already paid for and relieve development pressure on our urban
fringe and farmlands.
Under this committee's initiative and leadership, Congress recently
took the important step of increasing funding for brownfields cleanup
and providing necessary liability relief by enacting H.R. 2869 (S. 350)
the Small Business Liability Protection and Brownfield Revitalization
Act. That legislation will go a long way to help communities across the
country start cleaning up and reusing the thousands of brownfields
sites that now sit idle.
With THE big brownfields law enacted, it is tempting to think that
we have solved the brownfields problem. But States, regional councils
and local communities need financial assistance to make brownfields
redevelopment happen. One way to do this is to give communities more
tools to redevelop and promote the economic reuse of brownfield sites
once they have been cleaned.
S. 1079, the Brownfield Site Redevelopment Assistance Act would do
this. Senators Jeffords and I, along with Senators Baucus, Reid and
Lieberman introduced this bill to expand the Department of Commerce's
Economic Development Administration (EDA) efforts to assist communities
with economic development. The bill authorizes a program to provide
targeted assistance for projects that redevelop brownfield sites. The
bill will provide EDA with increased funding flexibility to help
States, local communities, Indian tribes and nonprofit organizations
restore these sites to productive use. The bill authorizes $60 million
each year for 5 years for brownfields redevelopment. It gives EDA the
authority to provide grants for brownfields redevelopment projects,
including:
<bullet> Development of public facilities
<bullet> Business development (including revolving loan funds)
<bullet> Technical assistance and Training
<bullet> Activities to help communities diversify their economies
and encourage infill development
<bullet> Collaborative economic development planning.
While EDA assistance has helped communities redevelop brownfields,
the agency lacks a specific authority and a dedicated source of funding
for brownfields. As a result, there is no guarantee that the agency
will be able to sustain the level of investment it has made in recent
years. The current ``cap'' on EDA appropriations at the authorization
level of $335 million will significantly affect the ability of the
agency to support future brownfield redevelopment activities.
This bill would provide EDA with the authority to facilitate
effective economic development planning for reuse; develop
infrastructure necessary to prepare sites for re-entry into the market;
and, provide the capital necessary to support new business development.
It would also make brownfields redevelopment a priority for EDA. Our
nation's population is growing and we need to find creative ways to
accommodate growth while improving the lives of our residents and
protecting our land, air and water. With limited Federal resources
available to help communities with these important goals, it is
critical that we encourage the reuse of our land. We recycle cans,
bottles and newspaper B we must also recycle our land.
In communities across Michigan and across the country, the
prevalence of brownfields sites is an obstacle to development. When
redeveloped, these sites offer new opportunities for businesses,
housing and green space. Undeveloped brownfields sites force expansion
into green areas and open spaces, and many communities need support in
order to reuse these sites. This bill would help to provide additional
resources to communities and States to assist their brownfields
conversion efforts.
The U.S. Conference of Mayors estimated that brownfields
redevelopment could generate more than 550,000 jobs and up to $2.4
billion in new tax revenues. This legislation aims to support local
communities and States in their efforts to reclaim brownfields by
providing economic development resources to revitalize these sites.
Testimony to the critical need for this additional brownfields
redevelopment funding is the support for the bill of the following
organizations: National Association of Counties, National Association
of Towns and Townships, National League of Cities, the U.S. Conference
of Mayors, the Council for Urban Economic Development; Enterprise
Foundation, National Association of Business Incubators, National
Association of Development Organizations, National Association of
Installation Developers, National Association of Regional Councils,
National Congress for Community Economic Development, and Smart Growth
America.
I am pleased the committee is taking up this legislation. It
clearly complements the resources and liability clarifications enacted
in H.R. 2869 (S. 350). It is a logical next step to provide communities
with the financial assistance needed to leverage private investment in
brownfields and accelerate reuse.
______
Brownfield Site Redevelopment Assistance Act of 2001
Section-by-Section
Section 1. Short Title.--Brownfield Site Redevelopment Assistance
Act of 2001
Section 2. Purposes.--To provide targeted assistance through the
Department of Commerce's Economic Development Administration for
projects that promote the redevelopment and economic recovery of
brownfield sites in order to bring new income and private investment to
distressed communities.
Section 3. Definitions.--Defines brownfield site (same definition
as in the Small Business Liability Protection and Brownfield
Revitalization Act). Permits the Secretary of Commerce in consultation
with the EPA Administrator to include other pollutant or contaminants
in the definition of brownfields. Other pollutants may include
petroleum, lead and asbestos. EDA funding can current be used for
remediation of these contaminants.
Section 4. Coordination.--Recommends that the Secretary of Commerce
coordinate brownfields redevelopment activities with other Federal
agencies, States, local governments, consortia of local governments,
Indian tribes, nonprofit organizations and public-private partnerships.
Section 5. Grants for Brownfield Site Redevelopment.--Makes grants
available through EDA for brownfields projects that alleviate excessive
unemployment, underemployment, blight and infrastructure deterioration.
Projects include: development of public facilities, development of
public services, business development, planning, technical assistance
and training. Grants may also be made available for activities
identified by a community negatively impacted by brownfields. These
activities include: diversifying the economy; carrying out industrial
or commercial redevelopment projects; promoting smart growth through
infill development that conserves environmental and agricultural
resources; and carrying out collaborative economic development
planning.
Section 6. Authorization of Appropriations.--Authorizes $60 million
for each fiscal years 2002 through 2006.
Senator Jeffords. What limits does EDA currently have
regarding their ability to do brownfields redevelopment?
Senator Levin. As I indicated, they could, if they put a
priority on it, use their money for this purpose, but they have
a cap on those funds. We would designate the money in this bill
specifically for this purpose. Also until this year, they have
at least identified brownfields redevelopment as a priority for
their funding, and this year they left that out, which means
that in their view it is not a priority. So we do two things--
we add funds that otherwise are not designated for this
purpose, and, we add emphasis and we add a targeting, a
priority to the EDA which apparently is not otherwise assured.
It is there some years, other years not. So we would guarantee
that a priority and an emphasis be given to this particular
purpose, as well as additional funding for it.
Senator Jeffords. Senator Chafee.
Senator Chafee. Thank you, Senator Levin.
What is your experience in Michigan on these lines? Are
there many brownfield sites in Michigan?
Senator Levin. There are huge numbers, and actually my
State has taken some very important initiatives in the
brownfields area. To the extent that we have been able to, we
have eliminated those really almost bizarre liability problems,
which have so often deterred the cleanup and the reuse of
brownfields, making subsequent owners liable to people, making
banks who would subsequently lend money on mortgages liable for
any damages which had previously been caused. I mean, you're
not going to get people to undertake a piece of land, clean it
up, and reuse it if they are going to be liable for previous
damages which were caused to people before they took over the
land.
Michigan has done everything that it could do in that area
and has promoted significant brownfields redevelopment, and I
want to give credit to the Governor and the legislature in
Michigan for doing that.
Our bill was your bill I think a year or two ago when we
took on the liability issue, then removed some of EPA's hurdles
which it had placed to brownfields redevelopment based on some
of those I consider to be irrational, almost, liability
problems. So at a national level, with the adoption of that
bill we removed some additional hurdles. Even before that
Michigan had done everything it could do, I think, reasonably
to remove the hurdles at the State level in terms of State law
for people who were willing to undertake brownfields reuse.
Senator Chafee. OK, similar to my State of Rhode Island,
I'm sure, a little industrial background, and we want to get
them back on the tax rolls. They sit fallow and not providing
revenue to our municipalities, which, of course, then we can
put those property taxes to good use building schools or fixing
roads, all the demands upon those officials in these
communities. We removed, as you said, a lot of the liabilities
in the previous bill, but your bill gives us the juice now to
do it.
Senator Levin. Thank you.
Senator Jeffords. Senator Wyden.
Senator Wyden. What kind of employment, Carl, do you think
is created by legislation that will help redevelop these
brownfields? It seems to me that, in addition to all the pluses
that you've already stated about your bill, which I strongly
support, there's also a good component as an economic catalyst.
What's your sense there?
Senator Levin. Well, the Conference of Mayors has estimated
that brownfields redevelopment could generate more than a half
million jobs, and, as Senator Chafee has pointed out, also
generate up to $2.4 billion in new tax revenues. So the jobs
point, which is an important point, is there.
The revenue for local communities, which are really
strapped now, particularly in a recession--I mean, we've got
local communities that have been pushed to the brink and over
the brink as a result of this recession that really need this
kind of tax revenue. So from both aspects it is a huge plus, as
well as a number of other benefits in terms of reusing land
instead of leaving it lie fallow from a purely social
perspective and a community perspective.
Senator Wyden. I don't have any other questions, but I just
think you're making a very big contribution with your bill, and
I literally go back to the Scoop Jackson days that I touched
on, when not only was this not regarded as constructive, but
somehow this was seen as preempting local authorities.
I think if you look at the kind of bills that we are
advancing now as part of the Smart Growth Task Force and your
legislation and Senator Chafee's legislation, in no way are we
preempting local prerogatives. What your legislation does is
puts the Federal Government in the business of being a good
partner on the brownfields legislation. That's what we did on
TEA-21 and the bill that I authored with Senator Chafee's dad
and Senator Moynihan, so godspeed for your cause, and we'll
help any way we can.
Thank you, Mr. Chairman.
Senator Jeffords. Thank you.
Senator Levin. Thank you. Can I just add one comment?
Senator Jeffords. You can say anything you want.
Senator Levin. One thought, because you mentioned Scoop
Jackson and you mentioned your Dad, both of whom are great
heroes of mine, as a matter of fact, and great champions of
communities. I probably shouldn't get too sentimental here,
other than to say the invocation of both of those former
colleagues and friends of mine is very meaningful to me.
Senator Jeffords. Thank you very much. We look forward to
working with you.
Our next witness is Dr. David Sampson, Assistant Secretary
for Economic Development at the U.S. Department of Commerce.
Both of the bills being discussed here today would come under
the jurisdiction of the Economic Development Administration.
Dr. Sampson, thank you for being here today. We look
forward to your statement.
STATEMENT OF DAVID SAMPSON, ASSISTANT SECRETARY FOR ECONOMIC
DEVELOPMENT, U.S. DEPARTMENT OF COMMERCE
Mr. Sampson. Thank you, Chairman Jeffords. Senator Chafee,
good to see you both again.
I appreciate the opportunity to appear before the committee
regarding the Economic Development Administration's role
supporting brownfields revitalization and development planning.
I do have a written statement that I would ask be entered into
the record, and with your permission would like to summarize
that testimony at this time.
Senator Jeffords. It will be entered and you may summarize.
Mr. Sampson. Thank you.
The Administration, the Department of Commerce, and the
Economic Development Administration recognize the need for
brownfield revitalization and strategic land use planning
objectives that are the focus of S. 1079 and S. 975. EDA has an
established track record of working with local stakeholders to
redevelop and reuse brownfields and has partnered with the
Environmental Protection Agency to provide assistance similar
to what is outlined in these bills.
The President has announced that his fiscal year 2003
budget will double the funds available through EPA from $98
million in 2002 to $200 million in the 2003 budget to help
States and communities around the country cleanup and
revitalize brownfields sites; however, given the demands on the
Federal budget to fight the war on terrorism and safeguard our
national and homeland security, the Administration cannot
support the additional funding beyond the increased funding
already in the President's budget for this item.
The Economic Development Administration has a longstanding
role in supporting economic redevelopment of abandoned, idled,
and contaminated industrial and commercial sites. As a matter
of fact, since 1997 EDA has invested over a quarter of a
billion dollars in 250 brownfield redevelopment projects, and
last year, alone, EDA invested $55 million in 58 brownfield
projects around the country. That's close to the level
authorized in S. 1079.
EDA's flexible economic development programs, as you have
referenced earlier--you and Senator Chafee both in your opening
comments--have provided a wider range of tools that local
communities can use through EDA to facilitate the
redevelopment.
EDA has been a long-time supporter of the Environmental
Protection Agency's brownfields initiative and was the first
Federal Agency to enter into a partnership agreement with EPA,
signing a memorandum of understanding in 1995, and a
reauthorization of that memo is prepared and is awaiting the
signatures of Secretary Evans and Administrator Whitman at this
time.
Now, as the President stated upon signing EPA's landmark
brownfields legislation in January, we believe the key to
effectively and efficiently addressing the brownfields
redevelopment challenges is for the Federal Government to
pursue a more cooperative, common-sense approach. This
brownfields legislation was passed with bipartisan support, and
the legislation recognizes and supports State efforts directed
at regulatory relief and market-based incentives for
redevelopment.
An example of an effective market-based incentive that we
strongly support but was not included in EPA's legislation is
the brownfields tax incentive. This incentive allows for
environmental cleanup costs to be fully depreciated in the year
they are incurred, rather than being amortized and depreciated
over the life of the property.
Under current law, favorable tax treatment for the
contamination cleanup costs will expire at the end of 2003. As
proposed in the President's fiscal year 2003 budget, the
Administration believes that the brownfields tax incentive
should be made permanent. According to Government estimates,
the $300 million annual investment in the brownfields tax
incentive will leverage approximately $2 billion in private
investment and return 4,000 brownfields to productive use.
Now, while there are many parallels between S. 1079 and
EDA's current efforts to support brownfield revitalization
efforts, portions of the bill represent a broad departure from
EDA's mission. For example, the legislation calls for EDA to
create parks, playgrounds, and recreational facilities. This
type of development falls outside of EDA's principal mission as
authorized by Congress.
Finally, we are concerned that S. 1079 calls for resources
that are not included in the President's budget. We believe
that the objectives of this legislation can be best attained
within current budgetary resources through improved
coordination of existing programs, a market-based incentive
approach, and a locally driven development process.
Now, the committee also asked me to comment on the
Community Character Act. Certainly in recent years concerns
have been raised regarding the kinds of development occurring
in America's suburban communities. We certainly believe that
comprehensive, market-based local and regional planning is an
essential component of successful, sustainable economic
development, and for almost 40 years economic development
planning has been a cornerstone of EDA's development programs.
As a matter of fact, EDA is currently involved in and committed
to local planning through its partnership planning program,
which supports 325 multi-county economic development districts
and 59 American tribes and Alaska Native villages.
Since 1997, EDA has provided planning assistance matching
the level of funding that would be provided through the
Community Character Act.
This process supports local planning by encouraging
development of a regional comprehensive economic development
strategy, or CEDS. The CEDS process is designed to guide the
economic growth of an area through an inclusive and dynamic
process that coordinates the efforts of community
organizations, local governments, private industry, and
economic development leaders. These grants can be used to
enhance or update local land use plans, if that is the priority
of participating local jurisdictions. While not prescriptive,
local communities developing CEDS are encouraged by EDA to
address economic issues and opportunities in a manner that
promotes economic development, fosters effective transportation
access, enhances and protects the environment, and balances
resources through sound management.
Again, the Administration cannot support S. 975 because it
calls for resources that are not included in the President's
budget to support activities that can be accomplished through
existing authorities and appropriations.
This Administration will continue to work for the American
people to protect the quality of our air, land, and water,
while building on the premise that environmental protection and
economic prosperity go hand in hand. By working together with
State and local communities and leveraging the Federal
Government's current resources and coordinating the efforts
among agencies, we can work effectively to create a market-
based approach to develop and revitalize communities across the
Nation.
Thank you very much, Mr. Chairman and Senator Chafee for
your leadership on these issues so important to us all. EDA
appreciates your support and looks forward to working with you
as we continue to achieve commonly held objectives. I would be
happy to address any questions that you may have.
Senator Jeffords. Thank you for your testimony.
In your testimony you note that the Administration is
seeking $200 million in fiscal year 2003 for EPA's brownfield
program. How will EDA in a collaborating role keep up with
EPA's activity without additional funding?
Mr. Sampson. Well, first of all, we intend to renew the MOU
that we have with EPA on those joint efforts, and, second, I
would point out that in our recently published final notice of
funding availability in the ``Federal Register,'' we do specify
public works dollars will be used to support both tech-lead
economic development and brownfield redevelopment projects, and
so that is included in our final notice for public works
projects for the coming year.
Senator Jeffords. In your testimony you comment that your
brownfields activities are under existing statutory authority.
Does EDA have specific authority to engage in brownfields
redevelopment work? Is this authority adequate?
Mr. Sampson. I believe that we do, sir, and I believe that
it is. As a matter of fact, in my short time at the helm at
EDA, I've visited a number of brownfield redevelopment sites
that EDA has worked on, and I think they are model
redevelopment projects around the Nation.
Senator Jeffords. How has EDA supported local development
planning in the past? How can EDA improve that work, especially
in the rural areas?
Mr. Sampson. Well, EDA has a very long history of working
with economic development districts around the country. In our
40-year history, planning has been the cornerstone of EDA's
economic development strategy.
As I mentioned, since 1997 EDA has funded approximately
$100 million to economic development districts, and last year,
alone, we funded over $20 million to these economic development
districts around the country, and we anticipate that that
funding level will be maintained in next year's budget.
Senator Jeffords. Thank you.
Senator Chafee.
Senator Chafee. Thank you, Senator.
Welcome, Dr. Sampson.
Mr. Sampson. Thank you very much, Senator Chafee.
Senator Chafee. Good to see you again.
Senator Jeffords mentioned a lot of growth is occurring in
the western States. I think Nevada and Idaho have seen some of
the sharpest population growth--and Arizona, New Mexico--of any
States--Montana. As Senator Wyden said earlier, planning used
to be considered almost a communist thought, especially in the
west, but now these communities are saying, ``We've got to
prepare. We've got to organize the growth and have the
industrial growth where the people want the industry, and we
want retail where our citizens want retail, and residential,
all the zoning, where the people of our community want it.''
We very carefully want to have the Federal Government
involved in that, understanding that there is some reluctance
to have the Federal Government involved, so this bill, the
Community Character Act, would just make available the funds.
My question is: does your Department have the capacity to
dispense these funds if this bill were to be successful?
Mr. Sampson. Senator, if the bill were passed and the funds
were appropriated to us, EDA would obviously be careful
stewards of that money and would ensure that any funds are
expended wisely and are used effectively.
As a former economic development professional at the State
and local level in Texas, I am well aware that there are
problems associated with the stress that growth brings on
communities. In my travels around the country, I think that the
primary concern that I've heard from State and local officials
has been the lack of growth or stagnant growth in terms of job
creation and the fear of losing core industries in States, and
that's why in this year's notice of funding availability we
have placed our first priority on assisting those communities
that are going through economic dislocation or transition that
are caused by changing economies.
But certainly for those communities that are experiencing a
unique distress caused by rapid growth, the existing planning
dollars that we use through our partnership planning program
can be used by those local economic development districts, and
especially the rural areas that might not have as many
resources, for the comprehensive land use planning as outlined
in the bill.
Senator Chafee. I would argue further that economic
development would go hand-in-hand with a well-planned community
where we don't--as I mentioned in my opening statement, my home
town of Warwick, in the post-World War II boom--there was farm
land in my home community, and it spilled out of the main city
of Providence down there, and, as I said, strip malls and
industry and retail and commercial and residential all--because
there was no zoning to direct it, and we certainly--I would
argue it inhibits economic development to have that kind of
growth. As we see these western communities--Las Vegas; Boise,
ID--just growing at a breakneck speed, I think everybody wants
to have some kind of organization to it to promote economic
development and good jobs and proper growth.
Mr. Sampson. Senator, I certainly would concur that high
performance and development standards generally yield premium
return on investment for the development community, and my
experience as an economic development professional is that the
development community is as concerned as anyone about high
development standards and performance standards so that they
know that their investment is going to be protected over the
long term.
Further, the development community generally prefers to
work in those communities where the rules of the game are
clearly laid out so that they know that they can--if they come
in and abide by those rules and development standards, that
their development will proceed in a timely fashion.
I do believe that, if you look around the country today,
there is a very strong case that can be made that a locally
centered, market-based approach that incorporates high
performance and development standards does yield aesthetically
pleasing, environmentally sensitive communities in which people
want to live, work, and raise their families, and I think that
those efforts at the local level are very appropriate.
Senator Chafee. Good ringing endorsement. Thank you.
Senator Jeffords. Thank you very much, Doctor. That was
excellent testimony, and we look forward to working with you.
Mr. Sampson. Thank you very much.
Senator Jeffords. Our next witness is Elizabeth Humstone.
Elizabeth is executive director of the Vermont Forum on Sprawl
located in Burlington. She is co-author of a new American
Planning Associations book, ``Above and Beyond.'' She comes
here both as a Vermonter and as a representative of the APA.
Welcome, Ms. Humstone.
STATEMENT OF ELIZABETH HUMSTONE, EXECUTIVE DIRECTOR, VERMONT
FORUM ON SPRAWL, BURLINGTON, VT, REPRESENTING THE AMERICAN
PLANNING ASSOCIATION
Ms. Humstone. Good morning, Chairman Jeffords and Senator
Chafee.
I am Elizabeth Humstone. I am the executive director of the
Vermont Forum on Sprawl and vice chair of the Burlington, VT,
Planning Commission. I am here as a Vermonter and on behalf of
the American Planning Association. I offer our vision for smart
growth and support for the legislation under consideration by
the committee, particularly S. 975, the Community Character
Act.
I know firsthand the daily struggle to achieve growth that
supports environmental quality, rural working landscapes,
healthy town centers, and community values of sharing, access,
and equity.
Americans are increasingly aware and concerned that
unplanned growth and its byproducts--loss of open space,
congestion, limited housing options, decline of neighborhoods,
duplicative and costly infrastructure, empty shopping malls,
and loss of ecological biodiversity--are major problems. This
is not just a suburban phenomenon. It is impacting cities,
rural areas, and tribal lands, as well.
An alternative is smart growth, a movement taking root
across the Nation as citizens seek ways of reversing decades of
policies that have led to what is commonly referred to as
``sprawl.'' Smart growth is a set of policies designed not to
stifle growth, as some critics would have it, but to promote
development in ways that create efficient communities of
balanced consumer choice and lasting value.
Smart growth is a broad-based, grassroots-driven,
bipartisan movement. Every political barometer--polls
legislation executive orders, budget proposals, and ballot
initiatives--indicates that planning reform and smart growth
are major concerns.
In Vermont, affordable housing advocates, businesses,
developers, environmentalists, historic preservationists,
community development specialists, planners, and social equity
organizations are all working toward smart growth.
Planning is essential to achieve smart growth. The plan and
the process of planning helps communities move boldly forward
with a clear vision and articulate agenda for shaping their
future. In spite of the importance of planning, many States
still rely on model planning laws developed by then Commerce
Secretary Herbert Hoover in the 1920's. While useful and
innovative for their time, these ordinances are woefully
inadequate today. Many communities that want to plan are
inhibited by these outmoded statutes.
Even the States that have good planning laws are losing the
battle to sprawl due to budget shortfalls, poor enabling
statutes, and inability and failure to implement what they
have. For example, in Vermont, despite, Mr. Chairman, your
incredible efforts for smart growth in our State, we are known
for interest and concern about growth issues but we still have
sprawl, and it is getting worse. In Vermont we have no State
planning office, no funds to enforce our Growth Management Act,
and extremely limited resources to provide technical assistance
to our many small towns.
The American Planning Association believes that the
Community Character Act would be an effective and beneficial
tool for promoting smart growth and improving planning, while
respecting local and State land use prerogatives. We are not
alone. Broad-based coalitions working to strengthen communities
and neighborhoods through improved built and natural
environments have joined in support of this legislation.
The bill provides flexible grants that could be used for a
variety of planning and smart growth programs. States
implementing reforms or seeking to bolster planning would be
eligible for funding.
The Community Character Act also is designed to promote
locally driven planning innovation through resources, technical
assistance, and capacity building. Many areas, particularly
rural regions and small towns--as, Mr. Chairman, you indicated
in your opening remarks--suffer from a lack of planning
resources and expertise.
At the Vermont Forum on Sprawl, we hear daily from citizens
and local officials asking for help with local planning issues,
and we are very hard pressed to meet this tremendous demand.
In Vermont, the Community Character Act could help us to
review our existing State planning statutes, and, with the
involvement of diverse interest groups and citizens, propose
ways to make them more effective. It could support a State-wide
local planner training program, or it could help regional
planning commissions and local governments arrive at better
regional approaches to smart growth.
All levels of government--Federal, State, regional, county,
and local--have a proper role and responsibility in improving
communities and supporting smart growth. Local governments have
long and rightly been the principal stewards of land and
infrastructure resources, yet Federal and State governments
play important roles, as well.
We believe Federal incentives and assistant for smart
growth are appropriate for you to consider. There are a variety
of Federal tools that could help Vermont and organizations like
mine pursue smart growth. I have focused this morning on the
Community Character Act. There is also the Brownfields Site
Redevelopment Assistance Act and the Post Office Community
Partnership Act, and, Mr. Chairman, your planned legislation to
provide grant support for community visualization and
decisionmaking technologies would also greatly aid smart growth
planning efforts.
We are committed to working with you, Mr. Chairman, and
this committee in making the promise of smart growth a reality.
This concludes my testimony. I thank you and the committee
for the opportunity to be here today.
Senator Jeffords. Well, thank you for an excellent
statement.
Our next witness is Deb Anderson. Deb Anderson is director
of Wood Partners located in Durham, NC. She is representing the
National Multi Housing Council, a national association
representing the interests of the Nation's most prominent
apartment firms.
Ms. Anderson, thank you for joining us today.
STATEMENT OF DEB ANDERSON, DIRECTOR, WOOD PARTNERS, DURHAM, NC,
REPRESENTING THE NATIONAL MULTI HOUSING COUNCIL
Ms. Anderson. Thank you. Chairman Jeffords and Senator
Chafee, my name is Deb Anderson and I am the director of Wood
Partners, a multi-family apartment, real estate development
firm located in the Raleigh-Durham area of North Carolina. I am
here today on behalf of the National Multi Housing Council and
the National Apartment Association, both trade associations
representing the Nation's multi-family property developers,
owners, managers, and financiers.
NMHC and NAA commend the members of this committee for
their work on the important issue of strengthening America's
communities. As I'm sure you already know, in recent years the
concept of smart growth has taken the country by storm. In
November 2000, more than 200 ballot initiatives were passed on
suburban sprawl and open space preservation. While this is
largely a State and local issue, there is also an important
role for the Federal Government.
We believe that the Community Character Act under
consideration today fits that role by providing the funding and
incentives needed to help State and local governments develop
sound and comprehensive land use plans. Tired of struggling
with traffic, pollution, long commutes, and over-crowded
schools, Americans are calling for more livable communities.
They are looking for pedestrian-friendly neighborhoods with
more open space and better traffic flow. They are seeking
communities with walkable distances between homes and nearby
shopping, schools, and entertainment.
Understanding that growth is inevitable, many State and
local policymakers are searching for ways to expand without
sacrificing quality of life. I know from my own experience in
dealing with land use policymakers on the State and local
levels that they face complex decisions as they endeavor to
integrate all of the ingredients of a successful community into
a specific land use decision.
Increasingly, these decisionmakers are coming to appreciate
that smart planning will require new ways of thinking and new
regional approaches. Many are expanding their community
development tool boxes to include important but often
overlooked assets such as high-density housing.
As a developer of high-quality apartment homes, I believe
that apartments are an integral piece of the smart growth
solution. Apartments conserve land to help preserve open spaces
and create pedestrian-friendly neighborhoods. They also use
municipal infrastructure more efficiently. For example,
apartment households generate 30 to 40 percent fewer vehicle
trips than single-family homes. Apartments place less burden on
local schools and regional transportation systems. They help
revitalize neglected neighborhoods, they create new jobs, and
they provide local, State, and Federal tax revenues.
Apartment homes are increasingly becoming the housing type
of choice for a new demographic, representing both the aging in
our population and the boom in younger households for the first
time in 20 years.
Many local governments still have barriers in place to
higher-density housing, such as zoning programs that do not
permit compact development. The end result is that apartment
developers like myself, eager to design and deliver new
pedestrian-friendly neighborhoods that citizens are calling
for, are often blocked from doing so.
This is where Congress can play a role. NMHC and NAA
support S. 975's creation of a Federal grant program to provide
States with the additional financial resources they may need to
support and encourage local authorities to update their land
use planning activities. The bill wisely relies on incentive-
based measures rather than command and control systems. The
bill also properly recognizes the need to explore regional land
use planning. Smart growth issues often span the jurisdictional
coverage of several communities, particularly in areas of
transportation and economic development.
While the need for regional planning is almost universally
recognized, there are few effective models. S. 975 specifically
states that multi-State land use planning should be facilitated
through the grant program. This incentive will go a long way to
jump-starting a fresh approach to regional planning.
NMHC and NAA also strongly support the legislation's
direction that a range of affordable housing options be
included as a requirement by States before receiving Federal
moneys. Communities that exclude apartments and other
affordable housing jeopardize their own continued prosperity.
In doing so, they squeeze out a segment of the population that
is vital to local businesses, as both customers and employees.
Communities that offer a diversified work force and a wide
range of housing options are more likely to attract and retain
top employers. An adequate supply of affordable housing,
therefore, can be essential to a municipality's economic
growth.
The fact that S. 975 encourages consideration of affordable
housing options will encourage communities to take a fresh look
at their approach to this issue and consider ways they can
support more affordable housing.
This is particularly important in high-cost areas, where
the price of land and the associated development costs have
diminished the ability of the private market to create
affordable housing on its own.
NMHC and NAA support the Community Character Act with the
understanding that the bill does not endorse by oblique
reference any one particular land use planning standard. We are
specifically concerned that the American Planning Association's
recent publication, ``Growing Smart Legislative Guidebook,''
not be viewed as the definitive land use guide. APA's guidebook
contains many sound provisions, but it does not enjoy universal
support among stakeholders. Dissenting comments pointing out
where the book is unbalanced in its approach are attached to
this testimony for your review.
The important principle here is that we believe State and
local jurisdictions must be free to study and employ a variety
of planning tools as they deem appropriate. The Federal
Government should encourage land use planning, but it should
not specify the plan. Land use decisions should properly remain
in the precinct of the local jurisdiction.
We believe the provision to encourage pilot projects of new
land use planning activities developed by local policymakers
will help create smarter answers to our Nation's growth
challenges. We also endorse the use of funds to develop
voluntary educational programs, new technologies, and new
electronic data bases to support land use planning and local
policymakers who do not always have access to these resources.
In summary, NHMC and NAA believe the role of the Federal
Government in land use planning should be limited to funding
through grants. As the Nation moves forward to strengthen its
communities and accommodate changing demographics, local land
use statutes will need to be responsive to the communities'
needs. This bill is intended to provide support for State and
local land use planning activities without undermining local
land use control.
Thank you very much.
Senator Jeffords. Thank you.
Our next witness is Don Chen, who is the director of Smart
Growth America, a coalition of advocacy organizations working
on growth management issues at the national, State, and local
levels.
Welcome, and please proceed.
STATEMENT OF DON CHEN, EXECUTIVE DIRECTOR, SMART GROWTH
AMERICA, WASHINGTON, DC.
Mr. Chen. Thank you very much. Mr. Chairman, Senator
Chafee, thank you for holding today's hearing on smart growth.
I am the executive director of Smart Growth America, a
nationwide coalition of over 70 groups, including the American
Farmland Trust, the Natural Resources Defense Council, the
League of Women Voters for Smart Growth, the National Low
Income Housing Coalition, and the Enterprise Foundation.
Together we promote smart growth, an approach to development
that makes efficient use of natural resources and
infrastructure, revitalizes neighborhoods, keeps housing
affordable, protects farmland and open space, and provides more
transportation choices.
Smart growth is a local issue, driven by the decisions of
individuals and families, so people often ask if there is a
Federal role. The answer is unequivocally yes. For decades the
Federal Government has influenced the shape of America's
communities through programs like the interstate highway system
and FHA's home mortgage insurance program. The real question
is: what is the appropriate role?
There are four key roles: No. 1, to share information about
best practices, tools, and research; No. 2, to provide
financial assistance to help States and localities use
resources more efficiently; No. 3, to identify ways in which
smart growth can help communities meet Federal requirements;
and, No. 4, to lead by example and be a good neighbor.
Let me briefly elaborate.
First, information sharing is a critical Federal
responsibility, because States and localities do not have the
capacity to conduct extensive research on innovations. The
Department of Housing and Urban Development's new report on
modern rehabilitation codes, for instance, shares information
about an innovation which has boosted rehab investment in
Newark, NJ, Jersey City, and Trenton by 68, 83, and 40 percent
respectively.
These innovations also include smart growth planning tools
that model the fiscal and environmental outcomes of different
growth scenarios, and software tools that enable the public to
better visualize change. These tools have been applied with
great success in places like Lancaster, PA; Salem, OR; San
Diego, CA; and Kingston, RI.
Mr. Chairman, I'm delighted to learn of your interest in
these community decisionmaking tools and would welcome the
opportunity to work with you to develop them further.
Second, the Federal Government should provide financial
assistance to support efforts to use economic and environmental
resources more efficiently. For example, EPA recently provided
a grant to the Envision Utah project. Using state-of-the-art
demographic and land use projections, local leaders estimated
that a smart growth scenario would save 171 square miles of
open space, tremendously reduce traffic and commute times, and
save the region $4.6 billion in infrastructure costs.
Third, the Federal Government should identify ways in which
smart growth can help communities meet Federal requirements. A
great example is the Atlantic Station Development in Atlanta,
GA, which applied smart growth principles to meet Federal air
quality standards. At the request of the developer, EPA's
technical staff determined that the project would reduce
regional travel by 50 million miles per year because of its
excellent public transit access, walkability, and compact
street design.
Fourth, the Federal Government should strive to be a good
neighbor to States and localities that are pursuing smarter
growth by, for example, locating its facilities in existing
business districts and more efficiently disposing of HUD-
foreclosed, abandoned buildings.
Several trends underscore the need for Federal action. As
Senator Chafee noted, communities nationwide are grappling with
rapid growth. As a result, housing affordability remains a dire
and persistent problem. According to the congressionally
established Millennial Housing Commission, 28 million Americans
do not have access to decent, affordable housing.
Traffic problems are stifling the economies of regions all
across America. Last year, congestion cost Americans $78
billion in lost time and wasted fuel.
Consumer housing preferences are also changing. According
to a new study published by the Fannie Mae Foundation, aging
baby boomers will drive a substantial shift in homebuyer
preferences in which 31 to 55 percent of active homebuyers will
prefer compact, walkable neighborhoods during the coming
decade.
As a response to these trends, Americans are demanding
better choices for their communities. In recent years, voters
have approved hundreds of measures to preserve open space and
farmland. A poll released in 2000 by Smart Growth America found
that Americans overwhelmingly support smart growth measures,
from affordable housing production to increased public transit
spending. Such support is also found at the local level. This
week a poll by the University of Toledo will report that metro
Toledans support similar measures very strongly.
S. 975 and S. 1079 will help communities respond to the
impacts of rapidly changing growth patterns that have resulted
in the abandonment of some communities and over-crowded schools
and over-burdened infrastructure in others.
The Community Character Act offers assistance to State and
tribal governments that have identified a need to update
planning legislation but lack the capacity to do so.
Appropriately, S. 975 is not a mandate; rather, it helps State
and tribal governments cover the costs of incurring public
participation, developing land use plans, and acquiring
technology.
S. 975 will help communities apply smart growth principles
to future development, including reinvestment in existing
communities. This committee has already shown great leadership
on this issue. Senator Chafee, I congratulate you and the
entire committee on the passage of the Small Business Liability
Relief and Brownfields Revitalization Act. Smart Growth America
was one of the first organizations to endorse S. 350, and we
were delighted to see President Bush sign the final bill into
law.
Despite such gains, cleaning up brownfields is only the
first step to economic recovery, particularly for impoverished
communities. S. 1079 complements the recently signed
brownfields law by targeting assistance toward public
facilities and services, planning, business development, and
training to help communities reclaim not just their land, but
also their livelihood.
Smart growth is about providing better choices for our
communities and our Nation. Across the Nation, families are
demanding more convenient and affordable transportation and
housing options. Communities need tools to handle rapid change,
and business and civic leaders want greater predictability in
the development process.
The Community Character Act and the Brownfield Site
Redevelopment Assistance Act will help deliver these goals.
Smart Growth America supports both bills and looks forward to
working with the committee to see their timely passage.
Mr. Chairman, Senator Chafee, thank you for the opportunity
to share the experiences of communities from across the Nation.
I'm happy to answer any questions.
Thank you.
Senator Jeffords. Thank you very much.
Our next witness is Gary Garczynski, the president of the
National Association of Home Builders. He is a builder and
developer in northern Virginia.
Mr. Garczynski, we appreciate your sharing with us your
thoughts.
STATEMENT OF GARY GARCZYNSKI, PRESIDENT, NATIONAL ASSOCIATION
OF HOME BUILDERS, WASHINGTON, DC.
Mr. Garczynski. I hope you'll feel that way when we're
finished, Senator.
Senator Jeffords. I'll let you know.
Mr. Garczynski. Mr. Chairman and Senator Chafee, I, like
both of you, have been laboring in the vineyards of smart
growth for the last 4 years as the senior officer with
oversight over the smart growth initiative and have been a co-
founder of the Smart Growth Alliance for Metropolitan
Washington, and am currently working with former Administrator
of the EPA, Carol Browner, on an Aspen Institute initiative on
smart growth, so we have been there.
My remarks today are centered, first of all touching on
Senator Levin's S. 1079. We feel that what we've reviewed of
the bill, that NAHB could soon very well be a supporter of that
initiative, following up with what Senator Chafee did last
year, although we would have liked to have seen petroleum
included, we think it is a step in the right direction.
While we appreciate the efforts of the committee and the
chair regarding S. 975, NAHB is opposed to the Community
Character Act. We know that this country is going to grow, and
we have been working for years on making sure that ``where do
we grow from here'' is growing smart. There's a demand, no
matter who you talk to--a demographer, an economist--that there
is going to be 1.6 million households formed in this country
continuously over the next decade, and there's really not an
option of halting growth. It's going to be how is that growth
molded.
Unfortunately, we feel the Community Character Act's effort
to address the short-term pressures of growth is too much of a
prescriptive intrusion into the local land use process, and for
that reason, is unacceptable to the home building industry. We
believe the legislation promotes a top-down approach and
negates the critical role of a local and a regional approach in
planning, regulating, and managing land resources.
Specifically, the act authorizes the Secretary of Commerce
to make subjective determinations about inadequate or outmoded
land use planning legislation and areas that are experiencing
significant growth. Unfortunately, the Secretary is authorized
to make a subjective judgment in an area where the Secretary
can claim no special expertise, at least that we see at this
point.
We believe strongly that local citizens and local
governments and regional initiatives are the best arbiters of
what is an appropriate design for local and regional land use
plans, and not the intrusion of the Federal Government.
We are pleased that in S. 975 that you have alluded to a
balance of affordable housing options, which we think are
important to any smart growth plan. In particular, the
provision about the Secretary of Commerce favoring grant
applications which include approaches to land use planning that
are consistent with established professional land-use planning
standards, we believe, gives off the perception, especially in
criteria No. 6, that the bill could be tied to, from a
perception basis, to the APA's No. 1 legislative priority, and
that's its growing smart initiative.
S. 975 also authorizes grant funding for the use of
integrating State, regional, tribal, local land use plans with
Federal land use plans. I think in your opening statements it
should be the reverse, as you both alluded to. There needs to
be better coordination from the Federal Government with the
local agencies, rather than local back to the Federal. Again,
it is that top-down approach that we are concerned with.
You know, ultimately we have adopted a policy at the
National Association of Home Builders that is fundamentally
opposed to statewide planning and Federal intrusion into the
process. Our overall experience in facing the challenges of
``where do we go from here'' is that that challenge is best met
by the stakeholders at the local and regional level, and not on
the State level. I have been hearing for 30 years from the
Commonwealth of Virginia what Richmond was going to do to help
northern Virginia. I've yet to evidence any help.
It is that premise that has led us to our compact with the
National Association of Counties, working on compacts with the
National League of Cities and the U.S. Conference of Mayors
that planning belongs at the local and regional level. For that
reason, at this time, we could not support S. 975.
Thank you.
Senator Jeffords. Thank you for your view.
Our next and last witness is Mary Lou Bentley. Mary Lou
Bentley is executive director of the Western Nevada Development
District in Carson City, NV. She is representing the National
Association of Development Organizations, which advocates for a
regional approach to community, economic, and rural
development.
Thank you for traveling this great distance in coming to
share your thoughts with us today.
STATEMENT OF MARY LOU BENTLEY, EXECUTIVE DIRECTOR, WESTERN
NEVADA DEVELOPMENT DISTRICT, CARSON CITY, NV, REPRESENTING THE
NATIONAL ASSOCIATION OF DEVELOPMENT ORGANIZATIONS
Ms. Bentley. Thank you, Mr. Chairman and members of the
committee, for the opportunity to testify today. It was an
interesting trip across our great country yesterday, and I will
be returning this afternoon.
I am the executive director of the Western Nevada
Development District, which is headquartered in Carson City. If
you're not aware, it is the State capital of Nevada. We
represent a seven-county region in the very northwest portion
of the State.
Incorporated in 1983, WNDD is one of the 325 designated and
funded economic development districts that Dr. Sampson referred
to earlier in his testimony. We are, however, a Nevada not-for-
profit association of local governments, and we are governed by
a policy board that consists of county and city elected
officials, along with tribal representatives, business leaders,
and citizen representatives from our region.
The National Association of Development Organizations, or
NADO, provides training, information, and representation for
regional planning and development organizations that serve over
82 million people who live in small metropolitan and rural
America. Founded in 1967 as a public interest group, NADO and
its members are part of the intergovernmental partnership among
Federal, State, and local governments.
Mr. Chairman, NADO strongly supports the goals of the EDA
brownfields redevelopment legislation for three main reasons.
First, Mr. Chairman, the EDA program would significantly
strengthen the current portfolio of Federal brownfield
programs. While the Environmental Protection Agency has an
exceptionally effective and very important program, it is
targeted almost exclusively toward helping urban communities
assess and cleanup brownfields. The EDA program would establish
a unique and a far more flexible set of tools to help local
governments, regional development organizations, and nonprofits
transform former brownfield sites into productive facilities.
As highlighted in two recent reports by the NADO Research
Foundation, there have been a number of impediments
historically to successful brownfields work in small metro and
rural areas. These include a lack of local professional staff
expertise and time, limited project implementation funds,
liability concerns, and property ownership issues.
In addition, redevelopment activities are very costly, with
a typical project costing over $5 million.
While the recently enacted EPA brownfields legislation
aggressively addresses many of these impediments, such as the
liability concerns and funding for assessment and cleanup,
there is still a significant void in funding for redevelopment
activities, including planning and technical assistance.
By establishing the new EDA program, local organizations
would have potential support for activities that extend beyond
the traditional cleanup efforts. Local communities could pursue
strategies for taking previously productive industrial and
commercial facilities and returning them to viable economic
centers.
This, in turn, represents the best of both worlds, creating
jobs and increasing local revenue, while also raising community
pride, promoting sustainable development practices, and
encouraging reinvestment in older areas.
Second, Mr. Chairman, the EDA brownfields program would
help regional development organizations and local governments
incorporate redevelopment efforts into their comprehensive
economic development strategies. Currently, EDA provides seed
funding for local communities, predominately through the 325
economic development districts, to prepare the comprehensive
strategies that balance the environment and economic growth.
We believe that the legislation takes the right approach by
providing supplemental planning assistance, instead of simply
mandating another requirement in the current planning process.
It also makes sense to use economic development districts
for planning and capacity building. This model builds
professional expertise on a regional basis, instead of working
individually with cities and counties. The national network of
districts serves over 2,000 counties and 15,000 small cities
and townships.
Third, Mr. Chairman, the proposed legislation would allow
EDA to continue its successful brownfields redevelopment work
without depleting its resources that are so desperately needed
for the infrastructure needs of many of our small communities.
Since 1997, EDA has invested more than a quarter of a billion
dollars in over 250 brownfield redevelopment projects
nationwide. However, we have little reassurance that the Agency
can sustain this level of investment, especially given the
existing appropriations and authorization caps.
By establishing a specific program for brownfields
redevelopment, the Agency would be given the stability and the
sustainability required to meet the growing needs of all
communities, including both urban and rural areas.
By separating the program, the Agency would also be better
positioned to assist distressed communities with their very
pressing needs, whether it is recovering from a natural
disaster, responding to a plant closing, or expanding existing
businesses.
While many of the Nation's urban and suburban areas have
enjoyed economic prosperity in recent years, there are still
hundreds of small communities struggling to enter or re-enter
the economic mainstream. Oftentimes, EDA is the only Federal
Agency that can truly help these smaller distressed
communities.
Over the past 35 years, EDA has developed a very successful
track record in partnering with other Federal agencies and
local communities, including regional development
organizations, to revitalize, upgrade, and expand former
commercial sites into industrial facilities. This work has
resulted in the creation of quality jobs and expanded tax base
for local governments, and a better quality of life for our
area residents.
In conclusion, Mr. Chairman, we strongly believe that the
expanded brownfields program would be a valuable addition to
the EDA tool box. The legislation would significantly
strengthen the current portfolio of Federal brownfields
programs, and it would allow regional development organizations
and their partners to incorporate brownfield redevelopment
efforts into the identified projects through the comprehensive
economic development strategy, and it would allow EDA to
continue its brownfields work without depleting resources for
its other job creation programs.
Mr. Chairman and members of the committee, thank you for
the opportunity to testify today on behalf of NADO, and I would
welcome any questions you might have.
Senator Jeffords. Thank you.
We thank all of you for very excellent testimony, and some
disagreement, which is good. That's how we get things done in a
better and more efficient way.
I'm going to pick on my good Vermonter first here. Ms.
Humstone, can you tell me about the polling you have done
evaluating citizen awareness of sprawl and desire for changing
those growth patterns? What are the implications of that data?
Ms. Humstone. Mr. Chairman, we have been doing polling
since 1998, pretty much on an annual basis, with the University
of Vermont helping us, and what we've found is the percentage
of Vermonters who have heard of Sprawl development has
dramatically increased to well above 70 percent, and,
interestingly, in the Northeast Kingdom, which, as you know, is
one of our most under-populated areas and economically
depressed, that percentage has really leaped during those 3
years of polling.
In terms of the need to take action against sprawl, when
asked that question, ``Do you feel there's a need to take
action against sprawl,'' we have found very consistently that
around 60 to 66 percent of Vermonters feel there is need to
take action against sprawl in our polling.
In addition, if you look at some of the national polling by
the American Planning Association, I believe it is around 78
percent feel that it is important at the Federal level that
steps be taken to promote smart growth, as well.
So we feel that there is a strong grassroots support for
what we are working on in the State, and we also see that in
our legislature, as well. They've very much supported a
development cabinet in the Governor's office that would
coordinate State investments. They also have supported a
downtown program that would provide incentives for more growth
downtown and, in addition, have continually supported our
Vermont Housing Conservation Board, which provides money for
affordable housing and land conservation, even in very lean
times. So we see that there is strong support reflected both
among citizens and the legislature, as well.
Senator Jeffords. How do you respond to the perception that
small States like Vermont don't really have any problems with
sprawl?
Ms. Humstone. That is a continual problem, and actually
that's one reason why I wrote the book ``Above and Beyond,''
because we wanted to show through aerial photography that we
have problems with sprawl. It is different. It's not going to
look like Atlanta. It's not going to look like Long Island.
Rural sprawl tends to be fragmentation of natural resources,
the breaking up of farmland into large lots, or linear
commercial development along highways that causes congestion
and ruins the scenic beauty of our State. When people come to
Vermont, they come there for the scenic beauty and our
wonderful small towns, and what we found is that with sprawl
we're losing the vitality in these small towns and our highways
are becoming congested and certainly not as pretty as they once
were.
Senator Jeffords. Thank you.
Ms. Anderson, you mentioned in your testimony that higher-
density housing has often been overlooked. Why do you think
that is?
Ms. Anderson. Anecdotally, I can give you information from
the area that I come from, which is Raleigh-Durham. We have an
MSA there of well over a million people, and yet there are as
many as a dozen jurisdictions in which I might be seeking a
rezoning or an approval for a higher-density project. So, as
you can imagine, when you take an area of that size and you
break it down into 10 to 15 local jurisdictions, they are often
working with land use plans that are maybe the first one
they've ever had since the beginning of time, or plans that
need to be updated, plans that need to think ahead.
As an example, we are trying to have a project of about 60
units to the acre approved in Durham, NC. We should have known
this, I suppose, but when we went to submit, we realized that
their zoning ordinance didn't contemplate any multi-family
housing in excess of 20 units to the acre. So to propose a
project at 60 took everyone by surprise, and we spent months
working with civil engineers, architects, planners to try to
help the city of Durham draft a new zoning ordinance which
would include high density.
So in many instances high density has been overlooked
because it has never really been contemplated, even in areas
where I think many of you might say, ``Well, Raleigh-Durham
surely has high-density housing,'' and, in fact, it does not.
So I believe this bill could help groups like these smaller
towns and municipalities create plans that effectively deal
with high density. Durham specifically tried to travel to other
cities to see what they were doing in other cities, but there
are time pressures, and once an application is submitted the
staff has to respond quickly.
So we now have an ordinance in Durham that will carry
capacity for 20, 40, 60, or even 80 units to the acre, but I'm
confident that those planners need to work on the specifics.
They were concerned about how to set open space requirements,
parking limits, setbacks, buffers. All of the minutia that went
into those higher categories were difficult for them to figure
out, and our project has been the test case and we'll see how
it works.
I think a lot of municipalities just don't have capacity in
their code for high density.
Senator Jeffords. We look forward to talking to you again
to see how it works.
Ms. Anderson. We do, as well. Thanks.
Senator Jeffords. Mr. Chen, many people have suggested that
smart growth and affordable housing are mutually exclusive.
Have you found that to be the case?
Mr. Chen. No, we have not found that to be the case. If you
look at the membership of our coalition, I think you will see
that there are a great number of people who advocate for smart
growth and affordable housing all working together.
This is actually an issue that has generated a great deal
of heat, and that's why I was so pleased to see the Brookings
Institution produce a report just last month that shed some
light on the issue.
For starters, the Brookings Institution looked only at the
academically juried research on this question of whether or not
growth management affects affordable housing, and they found
that overwhelmingly, the major factor that affects housing
prices is the market--in other words, market demand. If you
have a hot housing market, then prices will go up.
They found that growth management measures such as zoning
and planning and others tend to have a very small impact, if
any, on housing prices. In fact, they looked specifically at
Oregon, at a number of studies there, and found that the
increase of jobs and economic activity in the Portland area, in
particular, tended to raise housing prices in that area, and
that the urban growth boundary, did not have such an impact.
The study also concluded that, based on the research that's
out there, the current system of sprawl development does not
serve our purposes very well when it comes to affordable
housing. It tends to lead to exclusionary housing measures and
generally a very low supply of affordable housing.
The report's authors do argue that, in fact, well-
maintained, good growth management strategies can, in fact,
increase affordable housing production, and particularly if
measures such as Montgomery County's inclusionary housing
measure are implemented.
Senator Jeffords. With Federal, State, and local
governments facing tight budgets, is small [sic] growth really
an area that we should be venturing into right now?
Mr. Chen. Well, that's a great question. Smart growth, as
you may have heard from the couple of examples that I've
mentioned, is about the efficient use of natural and economic
resources. In Utah, for example, we saw a savings of $4.6
billion in infrastructure costs. Thanks to the scenario
planning that they've conducted down there, in Atlanta we see a
reduction in traffic and accompanying problems.
What is interesting about smart growth is that not only is
it very important to conserve these resources, but I think that
communities are really calling for tools that they can use to
more efficiently use their resources. The Community Character
Act certainly does that.
I also think that at this time, when we are in an economic
recession, we especially need economic stimulation of the right
kind, and, in particular, the brownfields bill that we are
discussing today offers that type of assistance.
Senator Jeffords. Mr. Garczyinski, do you believe that the
Federal role in land use planning is any greater in these bills
than the numerous tax credits, developer incentives, and
Federal grant programs already in existence that aid current
development patterns?
Mr. Garczynski. I think typically the restrictions in
Federal housing programs are imposed on builders through
insurance requirements or financing requirements and
regulations, but here you're getting into the very fundamental
question of land use policy, so that's where I think the
difference comes.
Senator Jeffords. Mary Lou, I am interested in hearing more
about the challenges you face in coordinating economic
development among the seven counties. What is your biggest
challenge? What tool or resources besides funding, which we
always know is one without asking, would make your job easier?
Ms. Bentley. Oh, my. Am I still limited to 5 minutes, Mr.
Chairman?
In our case in Nevada, we have not been directly, as an
organization, involved in a brownfields project for several
reasons. One, as I stated earlier in my testimony, we are
organized as a Nevada not-for-profit association. We are not a
501(C)(3), and there is no State legislation that recognizes or
grants our organization any particular standing. We are there
because our members see some benefit to having us there, and we
are there because we are a designated EDA planning district.
Because we don't have that kind of legal standing and
because we are not a 501(C)(3), we have not been able to get
into the EPA assessment program. One of our communities, our
board endorsed their application, and through the State of
Nevada they completed an assessment of a particular site that
they are dealing with right now. Legislation that would move
this into the EDA arena and would recognize the economic
development districts would allow our board then to take a look
at brownfields on a regional basis, without having to change
the legal status of the organization or change any legislation
at our State level that might be something they might regret
later.
Senator Jeffords. Senator Chafee.
Senator Chafee. Thank you, Mr. Chairman.
I second your motion that it is good to have dissenting
views. That's why we have hearings.
Hopefully we can improve the bills to meet some of your
criticisms and hopefully get your endorsement. I'm sure you
have been at public hearings, as I have, both kinds--those that
last until 1 o'clock or 2 o'clock in the morning by all the
angry neighbors out there ranting and raving until the wee
hours opposed to a project, whether it's the density or just
compatibility to their neighborhood, and then also been at
public hearings where there's one or two people carefully
looking at the plans and silently walking out of the room. I
think the difference there is that if there is a master plan
bought into by everybody, then when the projects come forward
that do concur with the plan then there's not a lot of
controversy, whether it is the density or the landscape design.
Senator Jeffords. Goodbye.
Senator Chafee [assuming chair]. Thank you. Very good
questions. Thank you.
It is a lot easier for both the developer and the
neighborhood to see growth in a community, and, as Mr. Chen
said, we want it to be smart growth, and that's the object also
with the Community Character Act. Whether it is Vermont, just a
rural area that's seeing growth, or whether, as I mentioned,
some of the western States that are just seeing enormous growth
and how it is planned, and so when the developer does come
forward there are some parameters that everybody is agreed to
in a planning process, and the developer knows that the next
fellow that comes 2 weeks later is going to have to conform
with those parameters, and it is much easier for them.
I have been at both kinds of hearings, and I can say it's a
lot easier to have the 45-minute hearing with not a lot of
raised voices and not the officials, whether it is on the
zoning board or the city council or whatever it might be,
perspiring in front of their angry constituents.
I would just look forward to working with you on that bill
and hopefully get your endorsement. I think Senator Jeffords
had some good questions, and I appreciate your testimony and
look forward to working with you and hopefully get a bill that
will get everybody's approval and pass the Senate and the House
and get the President's signature on both bills.
Thank you very much.
I guess I have the gavel, so I'm going to tape it. Thank
you.
[Whereupon, at 11 a.m., the committee was adjourned, to
reconvene at the call of the chair.
[Additional statements submitted for the record follow:]
Statement of Senator Ben Nighthorse Campbell, U.S. Senator from the
State of Colorado
Thank you Mr. Chairman.
As we know, Brownfields are an ongoing concern in this country and
specifically in my home State of Colorado. So far, this program has
been very successful in its goal of revitalizing abandoned, idled, or
under-used industrial and commercial facilities.
While these areas pose a low public health risk, they are often
avoided by developers because of cleanup costs and potential liability.
This designation has expanded as Superfund has, for the most part,
already cleaned up the worst hazardous waste sites in the Nation.
The Brownfields program is instrumental in achieving the goal of
cleaning up these less-hazardous areas by relieving the liability
burdens on contiguous property owners, prospective purchasers, and
innocent landowners. This is of increasing importance as cities expand
into these former industrial areas. My home State of Colorado is home
to Denver's Jefferson County, currently the third-largest growing in
the Nation. It is vital that we make these lands usable by reducing
potential health-risks to our citizens.
In fact, the city of Denver was recently named a Brownfield
Showcase Community. These Brownfield Showcase Communities have three
main goals:
1. To promote environmental protection, economic redevelopment, and
community revitalization through the assessment, cleanup, and
sustainable reuse of Brownfields.
2. To link Federal, State, local and non-governmental action
supporting community efforts to restore and reuse Brownfields.
3. To develop national models demonstrating the positive results of
public and private collaboration addressing Brownfield challenges.
I look forward to working with my colleague, Senator Levin, on this
bill (S. 1079), which addresses issues affecting our nation's
communities and seeks to aid their efforts to revamp abandoned
Brownfield sites by providing new incentives and needed reform to
expedite the process of mending these properties, especially since
Denver has an estimated 100 Brownfield sites.
Now that there is a new administration and a fresh outlook on our
environment and natural resources, I look forward to working with all
of the interested parties to form a consensus on this issue.
It is of great importance that we provide the necessary relief to
the many cities faced with the cleanup of Brownfields, and empower
States to assist in shepherding the cleanup effort.
Thank you Mr. Chairman.
__________
Statement of David A. Sampson, Assistant Secretary for Economic
Development, U.S. Department of Commerce
Chairman Jeffords, Senator Smith, members of the committee:
Thank you for this opportunity to appear before the Environment and
Public Works Committee regarding the Economic Development
Administration's role supporting brownfields revitalization and
development planning.
The Administration, the Department of Commerce (DOC), and the
Economic Development Administration (EDA) recognize the need for
brownfield revitalization and strategic land-use planning objectives
that are the focus of S. 1079, the Brownfield Site Redevelopment
Assistance Act and S. 975, the Community Character Act of 2001. EDA has
an established record of working with local stakeholders to redevelop
and reuse brownfields and has partnered with the Environmental
Protection Agency (EPA) to provide assistance similar to what is
outlined in these bills. The President has announced that his fiscal
year 2003 budget will double the funds available through EPA in fiscal
year 2002 from $98 million to $200 million--to help States and
communities around the country cleanup and revitalize brownfield sites.
However, given the demands on the Federal budget to fight the war on
terrorism and safeguard our national and homeland security, the
Administration cannot support the additional funding beyond the
increased funding already in the President's budget.
In addition, brownfield redevelopment and land use planning must be
addressed through community-driven, market-based approaches instead of
a centralized approach. We must focus our efforts on leveraging
existing resources and authorities at the Federal, State, and local
levels to support market-based solutions.
In the economic development arena, free markets, community
organizations, private industry, and local governments are the drivers
of successful long-term economic opportunity. It is the private sector
that has the financial resources necessary to revitalize our
communities and create jobs and wealth in America. Therefore, it is the
Federal Government's role to create an environment that allows local
governments to partner with private industry by encouraging market-
based solutions that attract private sector investment to revitalize
America's communities.
This strategy lies at the heart of EDA's mission to help our
partners across the Nation create wealth and minimize poverty by
promoting a favorable business environment to attract private capital
investment and create higher-skill, higher-wage jobs. This approach is
consistent with the Administration's vision that government should be
active, but limited; engaged, but not overbearing. Government has a
role to play in brownfields redevelopment and strategic economic
development planning by creating an environment where private sector
solutions can be realized.
Successful regions build on their inherited assets such as
geography, climate, population, research centers, companies,
governmental organizations, to create specialized economies that both
differ from other regions and offer comparative advantages to local
companies.
history of eda/doc brownfields redevelopment assistance
The Economic Development Administration (EDA) has a longstanding
role in supporting the economic redevelopment of abandoned, idled, and
contaminated industrial and commercial sites. Since 1997, EDA has
invested over a quarter of a billion dollars in more than 250
brownfield redevelopment projects. Last year alone, EDA invested $55
million in 58 brownfield projects, that is close to the level
authorized in S. 1079.
EDA's flexible economic development program tools have assisted
local governments, nonprofit organizations, and regional Economic
Development Districts in overcoming their brownfields revitalization
challenges. Under existing statutory authority, EDA provides assistance
to brownfields-impacted communities designed to achieve long-term
economic revitalization. In assisting with brownfields redevelopment
activities, EDA has used a variety of different program tools to
address various phases of brownfields redevelopment, including:
<bullet> Providing targeted planning and technical assistance
investments to support market feasibility studies and geographic
information system (GIS) inventories of brownfields;
<bullet> Assisting communities with infrastructure investments to
rehabilitate land and buildings, attract private capital investment
that in turn creates jobs; and
<bullet> Making investments to capitalize local revolving loan
funds used to provide gap financing in support of local business
development.
In my brief tenure at the helm of EDA, I have visited several
brownfield sites and have viewed first hand the powerful economic
transformation that can occur when previously constrained market forces
are unleashed. For example, at the former Fitzsimons Army Medical
Center in Denver, Colorado, a BRAC closure and brownfield site, EDA has
invested $9.4 million to replace the 4,000 jobs and $192 million in
annual expenditures lost to the Aurora community.
The site is currently being transformed into a new employment
center with 25,000 jobs anchored by a new medical campus for the
University of Colorado and a 160-acre bioscience research and
development park. The bioscience research and development park is the
first of its kind west of the Mississippi. The new work force already
exceeds 2,000 people, with a projected full replacement of jobs lost by
2004.
More than $500 million in construction is completed or underway,
and ten biotechnology companies have already located at Fitzsimons.
Major private investments include a $55 million gift for a clinical
complex and $18 million in venture capital for the largest biotech
company located in the business incubator on the site. Total private
investment to date is estimated to be well over $100 million.
EDA has been a longtime supporter of the Environmental Protection
Agency's (EPA) Brownfields Initiative and was the first Federal agency
to enter into a partnership agreement with EPA--signing a memorandum of
understanding (MOU) in 1995.
Pursuant to this partnership, EPA funds a Brownfields Coordinator
position in EDA headquarters to enhance communication and coordination
among the two agencies, and our prospective applicant beneficiaries.
This unprecedented level of cooperation between two Federal agencies,
with markedly different missions, has established a new model for
intergovernmental collaboration and effective delivery of assistance to
local communities.
Another part of the Department of Commerce, the National Oceanic
and Atmospheric Administration (NOAA), has also been involved in the
cleanup and redevelopment of brownfield sites. NOAA is the Nation's
primary coastal steward and the Agency has worked to improve our
Nation's coastal areas and resources in a number of areas. NOAA
programs are working at coastal brownfield sites to sponsor local
workshops focusing on brownfields restoration; revitalizing waterfronts
and redeveloping sites through effective coastal zone management; and
providing advice to communities on cleaning up and restoring
contaminated coastal areas. For example, NOAA is sponsoring a
Brownfields Showcase Community coordinator for the city of New Bedford,
MA to work on the joint EPA and NOAA issues. This coordinator is
assisting the local brownfields task force in cleaning up and restoring
brownfields sites in the city. NOAA works with a number of other local
communities to deliver tools and services that promote effective local
decisionmaking to revitalize local economies and communities. EDA and
NOAA are looking at ways to enhance what our two agencies, as part of
DOC, can bring to these communities.
Despite these efforts, we recognize the need for a more
comprehensive approach to dealing with brownfields redevelopment across
the Nation. Toward this end, the Department of Commerce and the
Environmental Protection Agency are drafting a memorandum of
understanding that empowers all DOC bureaus to partner with EPA to
comprehensively address brownfields redevelopment. This partnership
would allow DOC and EPA to provide additional assistance to
brownfields-impacted communities across the country.
current challenges in brownfield redevelopment
As the President stated upon signing EPA's landmark brownfields
legislation in January, we believe the key to effectively and
efficiently addressing the brownfields development challenges facing
our nation's communities is for the Federal Government to pursue a more
cooperative common sense approach. This brownfields legislation was
passed with the support from both Republicans and Democrats. Notably,
the legislation recognizes and supports State efforts directed at
regulatory relief and market-based incentives for redevelopment.
An example of an effective market-based incentive that we strongly
support, not included in EPA's legislation, is the brownfields tax
incentive. This incentive allows for environmental cleanup costs to be
fully deducted in the year they are incurred, rather than being
amortized and depreciated over the life of the property. Under current
law, favorable tax treatment for the contamination cleanup costs will
expire at the end of 2003. As proposed in the President's fiscal year
2003 budget, the Administration believes that the brownfields tax
incentive should be made permanent. According to government estimates,
the $300 million annual investment in the brownfields tax incentive
will leverage approximately $2 billion in private investment and return
4,000 brownfields to productive use.
The Administration believes brownfields redevelopment is about
reclaiming land and returning it to productive use by encouraging
private sector investments that will create jobs, rejuvenate local tax
roles, and support sustainable use of restored natural resources.
Public policy in this area should focus on incentives to encourage
entrepreneurs and developers to invest in and revitalize brownfields
sites. Furthermore, it is essential that we engage in collaborative
partnerships and leverage funding through existing programs to provide
assistance to brownfields-impacted communities.
Given the scope and complexity of brownfields throughout the United
States, one program, agency, or organization is not able to adequately
address the multitude of issues involved in brownfields redevelopment.
Therefore, the best approach to address this complex problem is through
an enhanced coordination between Federal agencies and leveraging
existing assets at the Federal, State, and local levels which create an
environment that attracts private sector investment. The collaboration
of all parties will result in the redevelopment of brownfields, new
jobs and a cleaner environment.
An example of Federal agencies coordinating their efforts and
assets is the national Brownfields Showcase Communities Initiative that
has provided technical assistance and resources from more than 20
Federal agencies to selected communities grappling with brownfields
issues.
addressing the brownfield site redevelopment assistance act of 2001 (s.
1079)
S. 1079 recognizes EDA's historic role in supporting national
brownfields revitalization efforts through planning, technical
assistance, infrastructure construction, and revolving loan fund
development tools. With EPA focused on the front-end assessment and
cleanup of brownfields, and EDA focused on the back-end redevelopment
and revitalization of sites, we believe this model partnership is the
proper vehicle to address the nation's brownfields challenges.
Recognizing the success of this partnership, EDA and NOAA will work to
strengthen collaboration with EPA and other partners on the
revitalization of brownfields-impacted areas.
While there are many parallels between this legislation and EDA's
current efforts to support brownfields revitalization activities,
portions of this bill represent a broad departure from EDA's mission.
For example, the legislation calls for EDA to ``create parks,
playgrounds, and recreational facilities.'' This type of development
falls outside of EDA's principle mission as authorized by Congress.
Finally, we are concerned that S. 1079 calls for resources that are
not included in the President's budget. We believe that the objectives
of this legislation can be best attained within current budgetary
resources through improved coordination of existing programs, a market-
based tax incentive approach, and a locally driven development process
where community and business leaders come together to address economic
and environmental needs.
the community character act of 2001 (s. 975)
The committee has also asked me to comment on the Community
Character Act. In recent years, concerns have been raised regarding the
kinds of development occurring in America's suburban communities.
Concern exists that development is occurring in a way that detracts
from quality of life as characterized by traffic congestion, air and
water pollution, and unfocused and unattractive development.
This problem is addressed through local community planning with a
focus on investments that look beyond the immediate economic horizon
and anticipate economic changes in the local regional economy and
embrace market-based rigorous development standards.
history of eda/doc support for local planning
Comprehensive market-based local and regional planning is an
essential component of successful economic development. Effective
planning creates a road map for communities to grow and develop with a
focused approach toward creating higher-skill, higher-wage jobs.
For almost 40 years, economic development planning has been a
cornerstone of EDA's development programs. During this time EDA has
found that effective economic development planning is accomplished at
the local level. Other than special circumstances such as coastal zone
management planning, as a general rule, States are too far removed from
local history, background, and circumstances involving land use
planning to reasonably find solutions to what are frequently unique
local circumstances. Local stakeholders are best able to effectively
identify and analyze local problems and opportunities, and implement
the vision of the community.
EDA is currently involved in and committed to local planning
through its Partnership Planning program, which supports 325 multi-
county Economic Development Districts and 59 American Indian tribes and
Alaska Native villages. Since 1997, EDA has provided planning
activities matching the level of funding that would be provided through
the Community Character Act. Last year alone, EDA provided over $18
million to Economic Development Districts and more than $2.5 million to
American Indian tribes through the Partnership Planning program. This
program provided approximately $100 million in assistance to support
regional development. Last year, EDA made 49 short term planning
investments totaling almost $3 million; 26 of these investments were to
regional planning districts, 14 to urban areas, and 9 directly to
States.
This process supports local planning by encouraging development of
a regional comprehensive economic development strategy (CEDS). The CEDS
process is designed to guide the economic growth of an area through an
inclusive and dynamic process that coordinates the efforts of community
organizations, local governments, and private industry concerned with
economic development.
While our CEDS process is a prerequisite for EDA infrastructure
construction assistance, its greater value to communities is the
development of a strategic vision as well as a capacity-building
program. While not prescriptive, local communities developing CEDS are
encouraged to address economic issues and opportunities in a manner
that promotes economic development, fosters effective transportation
access, enhances and protects the environment, and balances resources
through sound management.
Fundamental to the success of the CEDS process is that regional
strategies are market-based and recognize that each community or region
must craft an economic development plan that focuses on its unique
strengths. These local strategies then translate into a holistic
approach to local land use planning by considering multiple issues of
concern by community stakeholders, including job creation,
environmental protection, transportation options, and public works
investments, among others.
In addition, NOAA, under its Coastal Zone Management Act
responsibilities, has a 30-year history of working with coastal States
to support effective local planning. Coastal zone management plans
provide a framework for successful economic development and the
maintenance of environmental quality at the State and local level.
Thirty-three coastal States and territories, covering 99 percent of our
Nation's ocean and Great Lakes coasts, have approved coastal zone
management plans.
addressing the community character act of 2001 (s. 975)
The Community of Character Act proposes new funding to establish a
grant program to promote comprehensive land use planning at the State,
tribal, and local levels. The bill would authorize $25 million each
year, for 5 years at the State level for planning activities. The
Administration cannot support S. 975 because it calls for resources
that are not included in the President's budget to support activities
that can be accomplished through existing authorities and
appropriations, and a centralized approach to land use planning is not
the most effective solution to address issues of sprawl and unfocused
economic development.
Rigorous development standards in land use planning, which are
market-based, locally defined, and focused beyond the immediate
economic horizon, are good business. While quality of life issues
surrounding poor land use planning in America's suburbs are a growing
concern, the most effective approach to land use planning is to create
a locally devised plan that is market-based in its focus.
EDA's experience has proven local planning efforts work. As I
stated earlier in my testimony, EDA's planning grants require the
participation of local economic development stakeholders including
community organizations, local governments, and private industry.
Ultimately, this process must involve leveraging public, private and
community resources, to achieve a commonly held vision for the
community. This approach will allow for different local planning views
to be considered, resulting in market-based planning that is flexible
enough to accommodate innovation.
This market-based approach is currently addressing the concerns
about sprawl throughout the country. Developers are using cutting-edge
designs that mitigate the unpleasant aspects of sprawl, while
satisfying citizens' demands for clean and convenient communities.
Markets are naturally driving developers toward high-end development
standards demanded by consumer interest in development designs that
reflect their desire for pleasing aesthetic environments, convenience,
safety, and affordability. In the end, a market is more than a place;
it is a process.
EDA, for example, has been actively involved in supporting eco-
industrial development as a preferred redevelopment technique for
brownfields impacted areas and has supported many of the nation's early
efforts in this regard. Eco-industrial development emphasizes
synergistic corporate relationships and closed loop industrial systems,
where the waste product of one industry is used as input for another.
Eco-industrial development takes many forms, but the overarching goal
is to catalyze local economic growth through cost saving, performance
based long-term development approaches. Fundamental to this concept is
the use of high-end development standards.
There are several innovative approaches in the marketplace
addressing eco-industrial development. For example, The Londonderry,
New Hampshire Ecological Industrial Park is a successful example of the
eco-industrial concept. The anchor tenant for this industrial park is a
720 mega-watt combined cycle natural gas power plant that will use
treated wastewater from the neighboring city of Manchester for cooling
as part of a closed-loop industrial system. The industrial park is
located adjacent to several residential areas and was developed through
a market-based local planning process that included government,
private-sector, and community participants. As such, the park includes
100 acres of permanently protected open space and other aesthetic
amenities providing value added benefits to tenants and the surrounding
community.
Another innovation in the marketplace is the emergence of
environmentally sensitive development. This emerging market niche
marries real estate development with natural and rural amenities.
Typically, some portion of these ``eco-developments,'' as they are
known, is set aside as community space while the remainder is divided
up for commercial and residential uses. An example of this kind of
development is Prairie Crossing in Grayslake, Illinois located between
Chicago and Milwaukee. This development incorporates agricultural
production and open space preservation in a model that allows
developers to realize returns in the top quartile of the area real
estate market. Development in Prairie Crossing is holistically
integrated with the natural environment including 150 acres of
agricultural land and community gardens; 228 acres of lakes, wetlands,
meadows, and prairies; and 15 miles of hiking trails.
conclusion
This Administration will continue to work for the American people
to protect the quality of our air, land, and water, while building on
the premise that environmental protection and economic prosperity go
hand in hand. It is important to provide flexibility to States and
local communities to craft solutions that address their unique
situations. Further, legal obstacles to clean up brownfields should be
removed, brownfield tax incentives made permanent, and Federal
financial assistance made more effective by cutting red tape.
Brownfields cleanup, restoration, and redevelopment are important
because they revitalize communities by improving public health and
environmental conditions, boosting local property tax rolls, and
creating jobs.
In all aspects of its development and implementation, economic
development must be addressed at the local level if it is to be
successful in its objectives of creating wealth and minimizing poverty
by promoting a favorable business environment to attract private
capital investment and job opportunities.
By working together with State and local communities, leveraging
the Federal Government's current resources, and coordinating the
efforts among agencies, we can work effectively to create a market-
based approach to develop and revitalize communities across the Nation.
Thank you for allowing me to testify before you today. I would be
pleased to answer any questions that you may have.
______
Responses by David Sampson to Additional Questions from Senator
Jeffords
Question 1. In the past, EDA identified brownfields, and
Environmental Protection Agency (EPA) designated Brownfields Assessment
Pilots in particular, as strategic funding priorities in the agency's
Notice of Funding Availability (NOFA). I note this year, that
brownfields redevelopment is no longer listed as a funding priority.
Can you tell me why? Without brownfields redevelopment as a specific
priority, how does EDA plan to maintain its commitment to work with
communities, States and other Federal agencies on brownfields
redevelopment?
Response. Each year EDA establishes its investment priorities in
the Notice of Funding Availability (NOFA) based on a variety of
factors, including the exigencies of the nation's contemporary economic
conditions; the emergence of new effective models to address poverty
and economic distress; and Administration policy priorities. For
example, EDA's fiscal year (FY) 2002 NOFA prioritizes investments that
assist communities in developing and implementing economic adjustment
strategies in response to sudden and severe economic dislocations. Such
economic adjustment strategies leverage regional assets and support
community and faith-based social entrepreneurship.
Brownfields redevelopment remains a top priority of EDA and the
Administration. In EDA's fiscal year 2002 NOFA, we highlight
brownfields redevelopment together with technology-led development, and
eco-industrial development as one of three principal investment types
the Agency is interested in under its Public Works and Economic
Development Facilities Assistance program. Brownfields transactions, in
fact, have always been encouraged because from an economic efficiency
standpoint they take advantage of readily available infrastructure and
markets.
The EDA has a longstanding role in supporting the economic
redevelopment of abandoned, idled, and contaminated industrial and
commercial sites. Since 1997, EDA has invested over a quarter of a
billion dollars in more than 250 brownfield redevelopment projects.
Last year alone, EDA invested $55 million in 58 brownfield projects,
that is close to the level authorized in S. 1079. Furthermore, EDA has
been a longtime supporter of the Environmental Protection Agency's
(EPA) Brownfields Initiative and was the first Federal agency to enter
into a partnership agreement with EPA--signing a memorandum of
understanding (MOU) in 1995.
Pursuant to this partnership, EPA funds a Brownfields Coordinator
position in EDA headquarters to enhance communication and coordination
among the two agencies, and our prospective applicant beneficiaries.
This unprecedented level of cooperation between two Federal agencies,
with markedly different missions, has established a new model for
intergovernmental collaboration and effective delivery of assistance to
local communities.
Question 2. The objective of S. 1079 is to ensure that EDA is able
to help communities promote brownfields redevelopment and economic
revitalization and to improve coordination. It also allows a greater
number of community partners such as universities, non-profit
organizations, and regional councils, help spur revitalization. Funding
issues aside, would this authority help EDA work with communities on
brownfields redevelopment and job creation?
Response. Through its existing statutory authority and
appropriations, EDA currently has the ability and resources necessary
to support national brownfields revitalization activities including
community partners such as universities, non-profit organizations, and
regional councils. In fulfilling its mission, EDA is guided by the
basic principle that local communities must be the drivers of their own
economic development and revitalization strategies. Based on these
locally and regionally developed strategies, EDA responds to local
economic development needs that are consistent with the agency's
statutory requirements and established investment priorities. Under
EDA's highly responsive investment strategy, the Agency has naturally
been funding more brownfields revitalization activities as national
needs have increased. Since EDA already has the necessary flexibility
in its authorization to address Brownfields requirements, new
authorities in separate legislation would be redundant.
Question 3. EDA's NOFA this year includes seven new investment
criteria. How do you think these new investment criteria will influence
funding of brownfield projects at EDA? In what ways will the use of
these criteria impact the selection of the kinds of brownfield projects
that EDA has historically funded? I am concerned that many brownfields
are located in poor market areas and therefore these new criteria may
be a barrier to brownfields redevelopment. Do you anticipate a change
in the number of projects that will be funded, relative to previous
years, as a result of the use of these new criteria?
Response. Application of the guidelines will lead investment
decisions to be based on outcomes such as value-added employment and
private sector investment. The investment criteria will ensure that
those brownfields redevelopment projects selected for funding will have
a higher likelihood of success and provide a greater return on taxpayer
investment. EDA does not anticipate a significant change in the number
of brownfields projects that will be funded this fiscal year relative
to recent years; however, because EDA investments are based on locally
driven needs, the number and aggregate amount of funding does vary from
year to year. During the period from fiscal year 1997 through 2001 EDA
funded a high of 78 projects totaling $79 million (1998) and a low of
31 projects totaling $35 million (1997). We expect that future EDA
investments will fall within this range. Furthermore, we believe that
in conjunction with the resources requested in the President's fiscal
year 2003 Budget for the EPA, and as a result of developers ability to
continue taking advantage of the Brownfields Tax Incentive through
fiscal year 2003, that EDA will be able to identify numerous
prospective brownfields investments that meet the Agency's new
investment criteria.
Question 4. Could you please provide an example from EDA's current
brownfields projects that you believe meets these new investment
criteria, and an example of a project that you feel does not,
explaining why in both instances.
Response. The redevelopment of the Fitzsimons Army Medical Center
is an example of a project that meets EDA's Investment Policy
Guidelines. At this BRAC closure and brownfield site, EDA has invested
$9.4 million to replace the 4,000 jobs and $192 million in annual
expenditures lost to the Aurora community. The site is currently being
transformed into a new employment center with 25,000 jobs anchored by a
new medical campus for the University of Colorado and a 160-acre
bioscience research and development park. The new work force already
exceeds 2,000 people, with a projected full replacement of lost jobs
lost by 2004. More than $500 million in construction is completed or
underway, and ten biotechnology companies have already located at
Fitzsimons. Major private investments include a $55 million gift for a
clinical complex and $18 million in venture capital for the largest
biotech company located in the business incubator on the site. Total
private investment to date is estimated to be well over $100 million.
An early EDA brownfield redevelopment investment that meets EDA's
Investment Policy Guidelines is the Cornerstone Partnership Project in
Wellston, Missouri. Many of the community's WWII-era employers left a
legacy of environmental contamination from their former industrial
activities including significant levels of PCBs. EDA investments in
Wellston began in 1984, and have totaled over $8.9 million for
infrastructure and rehabilitation of an existing building to create the
Advanced Metals Technology Training center. A principal goal of the
training center is to assist 5,000 displaced defense workers and 600
defense contractors in transitioning from jobs supporting defense
functions to jobs in global commerce. Since inception in 1998 over 500
students have enrolled and the average placement wage of all graduates
is $10.77 per hour. In 2000, there were 87 placements at an average
wage of $11.51 per hour.
While it is likely that EDA has made past brownfields redevelopment
investments that would not have been selected under EDA's Investment
Policy Guidelines, the majority of past investments would likely
qualify under the guidelines. However, generally EDA is not interested
in funding projects that lack solid market fundamentals and have
limited likelihood of supporting the future growth of the regional
economy. This would include speculative projects with no clear plan for
future development or very long development lead times. As a general
rule, EDA is also not interested in funding projects that have a
minimal impact on securing jobs and leveraging private investment or
have undefined purposes. I believe such cleanup activities are most
appropriately handled by State and Federal agencies with this
responsibility.
Question 5. You expressed concern about the S. 1079 provision to
provide funding for publicly owned parks or cultural centers. Healthy
economies need healthy communities and public facilities are an
important component for spurring reinvestment in distressed
communities. Studies show that public facilities and green space in
urban areas can serve as a catalyst for economic development as
businesses like to provide these amenities to workers. In the past, I
believe that EDA has funded these types of public facilities. Why do
you feel it is inconsistent with the Agency's effort to encourage
economic investment?
Response. As noted previously, EDA's authorizing legislation and
mission is to invest in projects that create jobs and attract private
investment. Such projects provide a high return on taxpayer investment.
Without question, publicly owned parks and cultural centers encourage
reinvestment in economically disadvantaged areas. As a general rule,
however, these types of activities do not provide for the long-term,
higher skill, higher wage jobs that EDA seeks to encourage with its
limited capital pool. Creation of parks and recreational facilities is
best left to the purview of State and local governments and other
Federal agencies that are more suited to advancing and overseeing this
kind of activity.
Question 6. In your testimony, you note the fiscal constraints on
the Federal Government. However, you also speak of the tremendous
return on investment from brownfields redevelopment. Don't you agree
that examples, like the former Fitzsimons Army Medical Center in
Denver, make a compelling case for Federal investment in brownfields
redevelopment?
Response. The revitalization of Fitzsimons Army Medical Center is
an excellent example of the role that the Federal Government can play
in supporting brownfields redevelopment. Moreover, the Fitzsimons Army
Medical Center is an example of the type of project that EDA would look
to fund out of our existing program resources in the future. It is a
market-based investment that capitalized on the regions existing
regional infrastructure to build comparative advantages for future
business investment. EDA's $9.4 million investment in the facility
advanced innovation and productivity by transforming the facility into
a new employment center with 25,000 jobs.
Fitzsimons is anchored by a new medical campus for the University
of Colorado and a 160-acre bioscience research and development park as
a part of a long term regional strategy that has resulted in ten
biotechnology companies that have already located at Fitzsimons. This
strategy, developed by a concerted effort of local officials, has
resulted in a new work force that already exceeds 2,000 people, with a
projected full replacement of lost jobs lost by 2004. Furthermore, this
project is maximizing the return on taxpayer investment by stimulating
$500 million in construction that is completed or underway. Major
private investments include a $55 million gift for a clinical complex
and $18 million in venture capital for the largest biotech company
located in the business incubator on the site. Total private investment
to date is estimated to be well over $100 million. This will result in
the replacement of $192 million in annual expenditures lost to the
Aurora community by the base closure.
As I stated in my testimony, brownfields redevelopment remains a
top priority of EDA and the Administration. We highlight brownfields
redevelopment in our fiscal year 2002 NOFA as one of three principal
investment types the Agency is interested in under its Public Works and
Economic Development Facilities Assistance program. Last year alone,
EDA invested $55 million in 58 brownfield projects and look to continue
funding competitive proposals that redevelop abandoned, idled, and
contaminated industrial and commercial sites. Finally, EPA will look to
enhance our coordination with the EPA through a more comprehensive MOU
to leverage the resources of both agencies more effectivley.
Question 7. Please tell me about the success of tools such as
market feasibility studies and geographic information system (GIS)
inventories.
Response. Geographic Information System: In addition to the
infrastructure investments that EDA commonly makes in support of local
brownfields redevelopment efforts, many communities have found that
EDA's economic adjustment, planning and technical assistance programs
can be effectively leveraged to support their redevelopment efforts
using tools such as market feasibility studies and geographic
information system (GIS) inventories. Many communities, for example,
have used EDA planning grants to support the development of local or
regional GIS inventories of idled, abandoned, or under-used industrial
sites (i.e., brownfields) or other vacant land in support of regional
economic development activities. These inventories are useful to both
local decisionmakers, for purposes of planning where community growth
and development will take place; and for private developers and
corporations making location decisions by assisting them in identifying
a site that has necessary characteristics. For example, a developer or
corporation might need a certain size site with both highway and deep-
water port access. Characteristics such as these are easily input and
identified in a GIS system, frequently in a graphical manner with many
associated layers of data (e.g., property titles, infrastructure maps,
etc.), allowing prospective employers to easily locate sites.
Market Feasibility: Some local communities have used EDA local
technical assistance grants to determine the market feasibility of a
particular brownfield site for adaptive reuse or other purposes. Market
feasibility studies are an effective tool to determine what uses the
market will support on a particular site. While these local technical
assistance grants are typically small in size and scope, they can
prevent costly mistakes and misguided investments that are sometimes
made when they are not conducted. This stems from the fact that
economically distressed communities sometimes have a pre-disposition
toward the same types of industries that have historically been
employers in an area, while market forces may be moving in another
direction all together. Costly infrastructure investments to support
obsolete industries are not an efficient and effective use of public
resources, and will not support the long-term economic interests of
local communities. Targeted market feasibility studies can help
communities overcome these hurdles and identify tomorrow's higher-
skill, higher-wage employers.
Question 8. How could EPA and EDA strengthen their collaboration
under current brownfields redevelopment authority?
Response. As noted previously, EDA has been a longtime supporter of
the Environmental Protection Agency's (EPA) Brownfields Initiative and
was the first Federal agency to enter into a partnership agreement with
EPA--signing a memorandum of understanding in 1995. Since 1997, EDA has
invested over a quarter of a billion dollars in more than 250
brownfield redevelopment projects. Last year alone, EDA invested
approximately $55 million in 58 brownfield projects.
Recognizing the need to buildupon this historic relationship and
foster a more comprehensive approach to brownfields redevelopment, EDA
is exploring new mechanisms to enhance coordination between Federal
agencies and leverage existing assets at the Federal, State, and local
levels. The Department of Commerce and the EPA are developing a
memorandum of understanding to strengthen the partnership between the
agencies, and replicate successful brownfields redevelopment
partnerships such as the Brownfields Showcase Communities Initiative.
Question 9. How can the Federal Government do a better job of
creating the market-based solutions that attract private sector
resources to distressed areas?
Response. To attract private sector resources to distressed areas
the Federal Government must foster an economic and regulatory
environment that allows the private sector to do what it does best--
grow the economy and create jobs. In some cases, this means that the
government must streamline its efforts to assist communities, in others
it involves preventing the government from inhibiting markets, in still
others it entails directly assisting the private sector to overcome
market barriers.
Brownfields redevelopment is an area where government clearly has a
role to play, by supporting private sector efforts to clean up and
reuse contaminated former industrial and commercial land. In this
regard, the Administration advances a two-pronged approach to national
brownfields revitalization efforts--a permanent brownfields tax
incentive and enhanced collaboration and cooperation among Federal
agencies, through existing programs and appropriations, in support of
local market-driven redevelopment efforts.
Under current law, favorable tax treatment of contamination cleanup
costs will expire at the end of 2003. As proposed in the President's
fiscal year 2003 budget, the Administration believes that the
brownfields tax incentive should be made permanent. According to
government estimates, the $300 million annual investment in the
brownfields tax incentive will leverage approximately $2 billion in
private investment and return 4,000 brownfields to productive use.
Furthermore, we believe that EDA's new investment criteria will
help to target EDA investments in such a way that leveraging of private
sector resources in distressed areas will be maximized. These new
criteria channel EDA capital toward market-based, pro-active
investments that will help to diversify local economies, attract
private capital, promote higher wage jobs, maximize the governments
return on investment, and have a high probability of success.
Question 10. I note where the Commonwealth of Massachusetts has
established a Brownfields Redevelopment Access to Capital program. In
the last 2 years it has resulted in over 70 Brownfield cleanups and
some $400 million in loans and cleanup. The key component of this
program is State funded subsidized environmental insurance that for the
most part secures loans and cleanup costs. Has the EDA looked at this
program, and more importantly, can EDA grant funds to States or local
governments be used to establish a similar program? If yes, will you
work with my State to see if a program can be piloted this year to
determine if it is feasible to do on a national basis?
Response. EDA is aware of the Commonwealth's Brownfields
Redevelopment Access to Capital (BRAC) program and its record assisting
parties that purchase, cleanup and develop brownfields in
Massachusetts, as well as the lenders who finance them. Programs such
as BRAC both leverage limited existing public resources and help
attract private sector capital. As you know, the goal of this
innovative program is to use market-driven tools to create a positive
financing environment for brownfields cleanup and redevelopment by
leveraging a small amount of public funds (in the form of an insurance
loan pool) into a large amount of private capital for revitalization
efforts. In essence, through State-subsidized insurance allowing
developers to more easily access capital needed for development
projects the program transfers the environmental risks associated with
brownfields redevelopment transactions to the insurer. The results have
been impressive. Since inception, developers and lenders working
through the BRAC program have invested over $600 million ($400 million
in 2001 alone) while creating or retaining some 5,800 permanent, full
time jobs in the State. Nevertheless, we believe that additional
research regarding the specific components of the program, and legal
opinions from our counsel are prudent next steps in our exploration of
this development tool.
______
Response by David Sampson to Additional Question from Senator Smith
Question. I was very pleased that you included eco-industrial
development (EID) in your testimony. As you know, I have a strong
interest in EID, an economic development concept that partners growth
with conservation and efficiency. I believe it fits well with the
mission of EDA.
I have tried to incorporate this concept into a few of the bills I
have worked on, including the Appalachian Regional Commission Act and
the Water Investment Act. In the two bills before the committee today,
I see great potential to further develop the EID concept.
I understand that you have concerns with these two bills, however,
if the committee proceeds with them and your concerns can be addressed,
do you see a means to buildupon EID through them and to foster a better
understanding of this important development tool?
Response. EDA has been actively involved in supporting eco-
industrial development as a preferred redevelopment technique for
brownfields impacted areas and has supported many of the nation's early
efforts in this regard. Eco-industrial development is also an example
of an area where EDA has coordinated closely with EPA and other
partners to achieve local development objectives. EDA will continue to
support this innovative development concept through its existing
programs and appropriations. As noted previously, eco-industrial
development was identified together with brownfields redevelopment and
technology-led development as one of three primary investment types
that EDA is interested in under its Public Works and Economic
Development Facilities Assistance program this fiscal year.
I believe there is ample opportunity to advance this innovative
development technique under EDA's existing authorities and
appropriations. I look forward to working with you and the other
members of the committee to find new and better ways to promote eco-
industrial development issues.
__________
Statement of Elizabeth Humstone, Executive Director, Vermont Forum on
Sprawl and Vice Chair, City of Burlington, Vermont Planning Commission
Good morning Chairman Jeffords, Ranking Member Smith, and members
of the committee, I am Elizabeth Humstone, Executive Director of the
Vermont Forum on Sprawl and Vice Chair of the Burlington, Vermont
Planning Commission. I appear today both as a Vermonter and on behalf
of the American Planning Association.
The American Planning Association represents 32,000 professional
planners, planning commissioners, and citizen activists interested in
shaping the vision for the future of their communities. APA's members
are involved in formulating planning policies and land-use provisions
at all levels of government. APA has a long history of promoting public
policies to improve quality of life in the nation's communities and
neighborhoods through better planning.
APA has long promoted smart growth and believes strongly that good
planning is essential to achieving it. We are here this morning to
offer our vision for smart growth and support for the legislation under
consideration by the committee, the Community Character Act and the
Brownfields Site Redevelopment Assistance Act.
As one engaged daily in the struggle to achieve growth that is
consistent with Vermont values of environmental quality, rural working
landscape, healthy town centers and community values of sharing, access
and equity. My organization, the Vermont Forum on Sprawl, works to
assist citizens and communities throughout the State in achieving
compact settlement surrounded by rural landscape while encouraging
community and economic development consistent with this vision.
We are not alone in this quest. In Vermont, ten non profit
organizations, including affordable housing, social equity, planning,
historic preservation and environmental groups, have embraced a common
set of smart growth principles and banded together to work
cooperatively on these issues. The Forum also is part of the national
Growth Management Leadership Alliance, a collection of grassroots
organizations promoting smart growth in States and communities.
My work as Vice Chair of Burlington's Planning Commission and
nearly 30 years of experience working with communities on land use
issues means that I know first hand how planning informs development
patterns, the challenges that communities face in achieving development
that builds value while promoting high quality of life, and the
importance of local land use authority as an instrument to reflect the
vision of local citizens. However, I have also developed a keen
understanding of the absolutely vital role that the State and Federal
Governments play in the development process.
I applaud you Mr. Chairman, Ranking Member Smith and members of the
committee for demonstrating the vision and leadership to hold this
hearing, which is, I believe, the first time a congressional committee
has specifically examined the issue of smart growth. I would also like
to thank Senator Chafee for his strong efforts in introducing and
supporting the subject of today's hearing, the Community Character Act.
My home region is certainly well represented today.
Americans are increasingly aware and concerned about unplanned
growth and its byproducts-loss of open space, congestion, limited
housing options, decline of neighborhoods, empty strip development, and
loss of ecological biodiversity-as clearly indicated by surveys and the
passage of numerous local ballot initiatives to address these issues.
This hearing is an important step in advancing the public discussion
about how the Federal Government can appropriately and effectively
support State and local smart growth activities that seek to address
these problems.
importance of smart growth
Smart growth refers to a citizen-led movement taking root across
the Nation as citizens seek ways of reversing decades of policies that
have led to what's commonly referred to as sprawl. Sprawl is the all-
too-familiar pattern of strip development and spread-out, auto-
dependent, low-density development in the countryside that leads to a
gradual decline in community life and values, and the erosion of the
economic base in cities and towns.
Smart growth, by contrast, is a set of public policies designed not
to stifle growth, as some critics would have it, but to promote
development in ways that create communities of balance, consumer
choice, and lasting value. Smart growth is planning, designing,
developing, and revitalizing communities to promote a sense of place,
preserve natural and cultural resources, minimize public outlays, and
equitably distribute the costs and benefits of development. Smart
growth enhances ecological integrity over the short-and long-term, and
improves the quality of life by expanding the range of transportation,
employment, and housing choices in a fiscally responsible manner.
Compact, pedestrian-oriented, mixed-use development patterns epitomize
smart growth and achieve more sustainable communities.
Smart growth is a broad-based, grassroots-driven, bipartisan
movement. Every political barometer--polls, legislation, executive
orders, budget proposals and ballot initiatives--indicates that
planning reform and smart growth are major concerns. A recent APA
analysis of planning reform activity in the States during the past 3
years confirms that planning reform and smart growth are among the top
political concerns in statehouses across the Nation. More than 2,000
planning bills were introduced between 1999 and 2001, and approximately
20 percent of them were approved.
In Vermont in the past 4 years, our legislature, with the support
of Governor Dean, has passed bills that provide significant new
incentives for downtown development, direct State agencies to manage
their investments and programs to support smart growth, and reinforce
the importance of town plans in State permit proceedings.
Activity has been bipartisan; of the 24 smart growth executive
orders issued between 1992 and 2001, 12 came from Republican Governors
and 12 from Democratic Governors; 27 Governors--15 Republicans, 10
Democrats, and 2 Independents--made specific planning and smart growth
proposals in 2001. The President's own cabinet reflects this support
with former Governors Whitman, Thompson, and Ridge along with former
County Executive Martinez all having taken leading roles in support of
planning and smart growth during their tenure in State or local
government. This bipartisan interest and support for smart growth is
further reflected in the work of this chamber's Senate Smart Growth
Task Force. Mr. Chairman, we thank you for your leadership of this
effort as co-founder and co-chairman of the Task Force.
In Vermont, affordable housing advocates, businesses, developers,
environmentalists, historic preservationists, community development
specialists, planners and social equity organizations are all working
toward smart growth. For example, the Vermont Forum on Sprawl is allied
with the Vermont Business Roundtable, a policy organization of 125
chief executive officers of large and small Vermont companies, to
develop new models for commercial and industrial development more
reflective of smart growth principles. The Coalition for Vital
Downtowns--including the State homebuilders and realtors associations,
League of Cities and Towns, State chamber of commerce, a regional
chamber of commerce, developers, the Preservation Trust of Vermont, and
our organization--developed and successfully lobbied for more
incentives for downtown development. More recently, the Vermont Smart
Growth Collaborative, so far made up of 10 diverse organizations, is
pooling its resources and technical expertise to promote better State
agency planning, to assist communities, and to build public awareness
of the issues with sprawl and the opportunities with smart growth.
Smart growth provides a framework for growth and development that
assists all types of communities: inner cities, first ring suburbs,
exurban communities, small towns, and rural America. Importantly, smart
growth recognizes and promotes multijurisdictional cooperation and
regionalism in planning as means of coordinating development that leads
to greater efficiencies, reduced public expenditures, enhanced quality
of life, and protection of natural resources.
Many people believe that smart growth does not apply to rural areas
or that curbing sprawl in small towns means ``no growth.'' My
experience in Vermont demonstrates that the opposite is true. We are
slowly destroying our valuable farm and forest land with wasteful,
large lot development often dictated by well-intended local
regulations. Our once scenic highways are becoming congested as the
roadsides fill up with fast food restaurants, gas stations, strip
centers and big box stores. Vermont communities are experimenting with
alternatives, such as the Richmond (2000 population: 4,090) housing
project, a relatively dense, but attractive, pedestrian-oriented,
affordable housing complex that fits well with the historic village
character. A new two-story Filene's department store in downtown
Burlington shows that 150,000 square feet of retail space can fit into
a built-up area and does not have to go on a corn field.
In addition to citizen concerns about eroding quality of life, one
of the major catalysts for smart growth and improved planning is the
recognition of the increasingly high costs, for government and
individual taxpayers, related to existing patterns of development.
There is growing awareness that poorly planned development is a hidden
tax on citizens and communities alike.
States and communities are dealing with the growing fiscal
implications of unmanaged growth facing metropolitan areas, suburbs and
neighboring towns. Planning reforms and smart growth provide long-term
savings by eliminating inefficiencies caused by inconsistent and
uncoordinated planning and widely scattered development. With planning,
communities can focus development where infrastructure is already
located avoiding duplication and costly waste. The fiscal situation is
becoming more acute as more States face deficit budgets. These deficits
not only make smart growth planning more necessary to control costs
over the long term. At the same time, ironically, financially strapped
State and local governments are hard pressed to implement better
planning in the short term. In the current State fiscal environment,
Federal resources--financial and technical--are critically needed.
Indeed, some data resources needed for good planning and new planning
technologies (e.g., Geographic Information Systems, or GIS) can only be
provided through the Federal Government. This situation makes Federal
assistance in the form of the Community Character Act more timely and
necessary than ever.
The Vermont Forum on Sprawl has carefully examined the potential
savings resulting from implementation of smart growth and improved
planning. Our research has shown that sprawl patterns can cost from 3
to 4 times more than compact patterns of development. More compact and
carefully planned development patterns can lower costs for roads, bus
and transit service, water and sewer service, school bus
transportation, police and emergency services, thus saving on Federal,
State and local governments' infrastructure expenditures. Developers
also can save on land costs, installation costs for road, sewer, water,
electric and gas lines, sidewalks, curbing, landscaping and other
improvements, thus lowering the housing costs for homebuyers and
renters.
role of planning in promoting smart growth
Planning is essential to achieving smart growth. Plans help a
community establish a common vision of development and a means of
realizing that vision. The plan and the process of planning helps
communities move boldly forward with a clear and articulate agenda for
shaping their future. Within a planning framework of diverse interests,
a regional perspective and a vision of place, the interests of
preservation, environmental conservation, economic development, fair
housing, transportation and development can all move forward more
effectively. A plan is the foundation of a smart growth agenda. Various
smart growth policies--from open space acquisition to urban
revitalization--are only effectively realized in the context of a plan.
Although planning is essential to achieving the smart growth
vision, many States still rely on model ordinances developed by then-
Commerce Secretary Herbert Hoover in the 1920's. These statutes, the
Standard City Planning and Zoning Enabling Acts, were designed to
support the rise of zoning and were almost universally adopted. While
useful and innovative for their time, ordinances and planning for turn-
of-the-20th-Century America are woefully inadequate for America at the
turn of the 21st Century. It is the updating of these enabling statutes
and the implementation of those reforms that the Community Character
Act most seeks to support. But unlike the Hoover model, the Community
Character Act does not suggest imposing a single model on all the
States but rather supports reform and implementation that is developed
based on the unique needs and context of individual States and
communities.
The pace of reform activity is astonishing. A recent APA report,
``Planning for Smart Growth: 2002 State of the States,'' found that
reform is increasing in terms of the level of activity and the number
of places focusing on the issue. Twenty 5 percent of the States are
implementing moderate to substantial statewide comprehensive planning
reforms, and nearly one-third of the States are actively pursuing their
first major statewide planning reforms for effective smart growth.
Fifteen Governors issued executive orders related to planning and smart
growth during the past 2 years, compared to nine in the previous 8
years combined. Eight States issued legislative task force reports on
smart growth, compared to ten such reports during the entire decade of
the 1990's. Reform efforts also can no longer be characterized as an
East Coast--West Coast phenomenon. The movement is clearly spreading
across the Nation with inland States representing 13 of the 25 total
States actively engaged in reform efforts.
Unfortunately, too many States and communities still lag behind.
Approximately one-quarter of the nation's States have made few or no
updates to the original 1920's model planning statute. These States,
like the rest of the Nation, are struggling with issues like congestion
and loss of agriculture land but lack the planning tools to cope
effectively. Many counties and municipalities have no legal access to
some of the most rudimentary planning techniques. New planning
strategies and approaches are needed so growth and development can be
managed in a way that maintains and improves quality of life.
Even the States that have good planning laws are losing the battle
to stop sprawl due to budget shortfalls, poor enabling statutes and
inability and failure to implement what they have. For example, the
State of Vermont for over 30 years has attempted to maintain its
historic settlement pattern of compact community centers separated by
rural countryside by adopting a State land development law (Act 250),
in which Chairman Jeffords had a major role, and a State growth
management law (Act 200), as well as providing incentives through the
Vermont Housing and Conservation Board grants program and the Downtown
Program. These laws and programs have generated strong interest in
community planning, preserved 100,000's of acres of prime farm and
forest land, provided over 6,000 units of perpetually affordable
housing, and revitalized downtowns and village centers.
Yet, despite many years of interest and concern about growth issues
among the major political parties in Vermont, we still have sprawl, and
it is getting worse. Why? There are many reasons, but among them are
State public investments that work against State growth policies, poor
local planning due to lack of training and technical expertise, lack of
awareness of alternative ways to grow, and failure to coordinate
planning among separate jurisdictions. In Vermont we have no State
planning office, no funds to enforce our growth management act,
extremely limited resources to provide technical assistance to our many
small towns, and a regional planning system that has been ineffective
in managing growth. The Vermont Forum on Sprawl is working to draw
attention to these problems, but we need your help.
the community character act
APA believes that the Community Character Act would be an effective
and beneficial tool for promoting smart growth and improving planning
while respecting State and local land-use prerogatives. I am greatly
encouraged by today's hearing and hope that it is but the first step
toward enacting this important legislation.
APA is not alone in our support for the Community Character Act (S.
975). Like smart growth in general, a broad-based coalition working to
strengthen communities and neighborhoods through improved built and
natural environments has joined in support of this legislation, and I
am pleased to include this coalition's letter of endorsement with my
testimony this morning. Likewise, the measure enjoys support among
grassroots organizations like mine. In Vermont, eight groups comprised
of citizens concerned about smart growth have endorsed the Community
Character Act.
The reason for the measure's strong support is that it responds to
widespread citizen interest in smart growth by providing critical
resources to help State and local leaders, business and environmental
interests, and concerned citizens bring about positive change in their
communities through better planning. It provides an incentive for
better planning while maintaining flexibility for States and
localities. Without legislating local or State planning policy, the
bill would be a landmark in encouraging planning that achieves some key
smart growth objectives, such as linking planning to implementation,
encouraging regionalism and public participation, supporting housing
choice and affordability, making more efficient use of land and
infrastructure, and conserving vital resources.
S. 975 encourage States to create a framework for smart growth
planning without mandating local land-use policy. The bill provides
support for innovative and updated tools needed by States and
communities working to manage the many challenges presented by growth.
Communities would not be forced to pursue smart growth strategies, but
S. 975 would provide assistance to those that choose to do so.
The bill supports planning reform and implementation through grants
that could be used for a variety of planning and smart growth programs.
Grant funding is designed to be flexible and responsive to local needs
and vision. States could pass grant funding directly to local
governments for planning activities. Grants could also be applied to
activities other than statutory revision, such as research and
development activities for State, regional or local planning, public
meetings, policymaker workshops and coordination of local plans and
Federal land management. Funding could also be used to acquire
information technology and equipment to improve planning, such as GIS
systems, and public understanding of the consequences of current
development patterns, as well as envisioning alternatives.
Mr. Chairman, your planned legislation to provide grant support for
community visualization and decisionmaking technologies would greatly
aid smart growth planning efforts. That legislation, in combination
with the support possible through the Community Character Act, would
greatly enhance planning and public participation in crafting a vision
for the community. We look forward to continuing to work with you on
behalf of both bills.
Program eligibility would be broad and not limited to States
revising enabling statutes. A major focus of the bill is promoting the
reform of State planning statutes; however, States implementing reforms
or seeking to bolster comprehensive planning would also be eligible for
funding. S. 975 establishes criteria for grants that recognize
statutory reform as an important priority but lays out other criteria
under which any State could apply, including economic development,
environmental protection and regionalism.
The Community Character Act is designed to promote locally driven
planning innovation through resources, technical assistance and
capacity building. Many areas, particularly rural regions and small
towns, suffer from a lack of planning resources and expertise.
According to a survey of county governments conducted last year, only
39 percent of rural governments do comprehensive planning versus more
than 70 percent of metropolitan governments. At the Vermont Forum on
Sprawl we hear daily from citizens and local officials asking for help
with local planning issues. Several thousand citizens have requested
our Way To Grow! planning guides and nearly 25 percent of Vermont
communities have been represented in our training courses. We are hard-
pressed to meet the tremendous demand for help. S. 975 sets up a grant
for local or regional planning pilot projects to promote smart growth
and continued planning innovation. The measure also establishes a
technical assistance and capacity building program that would support
improved planning in a variety of ways, including expanded research,
training programs, new data resources for local planning and improved
intergovernmental cooperation.
With such tremendous need for planning resources and the many
opportunities for Community Character grants to make a substantial
impact, the singular drawback to legislation before the committee is
the limited amount of funding authorized. We recognize the fiscal
limitations of the moment but hope that funding levels might ultimately
be increased. APA has found through various studies that any investment
in planning will pay dividends many times over in money saved on
unnecessary waste, duplication and inefficiency. Quite simply, we
cannot afford not to help communities plan.
This legislation is also a long overdue step toward assisting
tribal governments with comprehensive planning and promoting improved
cooperation on land-use planning between Federal land management
agencies and State and local land-use planning officials. The bill
correctly notes that tribal governments routinely lack adequate
resources for planning and that improved land-use planning would
enhance environmental protection, housing opportunities and
socioeconomic conditions for tribes. Some funding would be reserved for
use by tribal governments. The bill also seeks to encourage improved
consultation on land-use decisions among Federal agencies, State
governments, local governments and nonprofit organizations.
In Vermont the Community Character Act could help us review our
existing State planning statutes and, with the involvement of diverse
interest groups and citizens, propose ways to make them more effective.
It might even generate interest in the return of our State planning
office. It could support a statewide local planner training program
that would improve the development and implementation of local plans
reflecting community visions. Or it could help regional planning
commissions and local governments arrive at better regional approaches
to smart growth.
But the reach of the Community Character Act certainly is not
limited to my State. Potential uses of the legislation include helping
States with formal State smart growth commissions, such as Kentucky,
Colorado, Florida, and New York; easing the implementation of planning
reform in States like Pennsylvania, Wisconsin, New Jersey, and
Tennessee; or simply aiding the local and regional innovations in
States across the Nation.
need for a federal role
Some will argue that because planning and land use are local
responsibilities, the Federal Government should play no role. APA
recognizes that all levels of government, as well as the nonprofit and
public sectors, play an important role in creating and implementing
policies that support planning and smart growth. The complex array of
incentives, assistance, regulations, and financial considerations
already in place affect and drive development practices. The current
patterns of development do not occur in a vacuum.
All levels of government--Federal, State, regional, county, and
local--have a proper role and responsibility in improving communities
and supporting smart growth. Local governments have long, and rightly,
been the principal stewards of land and infrastructure resources
through implementation of land-use policies. Smart growth respects that
tradition, yet recognizes the important roles that Federal and State
governments play as leaders and partners in advancing and implementing
smart growth principles.
In fact, the Federal Government has often contributed to sprawl in
the past. The Federal Government remains the nation's largest landlord.
While we often think of the vast Federal tracts of land in West, we
might also consider all the post offices, courthouses, and Federal
buildings that dot the landscape in almost every town and county in the
Nation. All too often in the past, Federal facility regulations or
outright exemptions from planning and land-use policies have led to
Federal agencies harming downtowns while simultaneously aiding and
abetting sprawl.
In Vermont, right now, to meet Federal design specifications, a new
Immigration and Naturalization Service building in Chittenden County
will be forced to locate on a greenfield because no existing downtown
buildings or sites can qualify. Numerous communities, such as
Westminster and Enosburg Falls, are fighting to keep their post offices
in their town centers, but many have already lost the battle. We are
most appreciative of the leadership of Chairman Jeffords and Senator
Baucus in addressing the problem of ``postal sprawl'' with Federal
legislation, S. 897.
Similarly, other Federal policies, seemingly unconnected to land-
use and development patterns, have had a profound, if unintended,
impact. Post World War II policies ranging from the mortgage interest
tax deduction to water and sewer extension aid were major factors in
shaping patterns of development. Few would argue the benefits
associated with expanding homeownership and providing needed
infrastructure. However, we are now at a moment in our nation's history
where, as good stewards of our resources, we must address how we can
better plan and coordinate development if we hope to maintain the
quality of life and quality of community demanded by citizens. If the
Federal Government has been part of the problem, surely it can now be
part of the solution.
I believe that Federal incentives and assistance for smart growth
are appropriate for you to consider because promotion of smart growth
is squarely in the national interest and demands a national response. I
am not alone. A national public opinion survey conducted for APA found
that 78 percent of voters in the last election believe Congress should
provide incentives to help promote smart growth and comprehensive
planning. This same survey found that more than three-quarters of those
surveyed believe it is ``important for the 107th Congress to help
communities solve problems associated with urban growth.'' These
findings were underscored by almost identical support levels in a
survey conducted by my panel colleague this morning, Don Chen and Smart
Growth America, as well as surveys conducted on behalf of the Forum on
Sprawl.
Many who oppose assistance for planning today will be back tomorrow
looking for tax breaks and infrastructure assistance to support the
development status quo. If we are prepared to support tax incentives or
other forms of assistance for specific types of development in specific
places, however beneficial, why then can we not offer assistance to
communities for better planning and coordinating that development? I
would say to my friends who might oppose an incentive for planning, how
is one more intrusive of local prerogatives than the other? Should they
not work together?
Some interest groups will wrap themselves in the mantle of smart
growth, crowing about its importance, yet consistently oppose any real
legislative reform. These organizations view any incentive or
assistance, however modest or voluntary, as somehow ``Federalizing''
land use. Nothing in the legislation before the committee this morning
contains anything of this sort. Support for planning and smart growth
must be more than rhetorical exercises intended to respond to public
opinion polls.
The types of incentives envisioned in both the Community Character
Act and the Brownfields Site Redevelopment Assistance Act are in the
national interest because each would provide broad environmental
enhancement outcomes and would do so without relying on regulations and
enforcement. In addition, the kind of strategic planning, investment
coordination, and public participation envisioned in both bills would
leverage a wide range of existing Federal investments, from Community
Development Block Grants to an array of new or expanded Federal land
conservation programs. The Federal Government offers many programs
aimed at economic and community development. However, all too often
these programs provide little or no support for planning. An investment
in planning would increase the ultimate impact of the Federal
investment.
The Environmental Protection Agency under both the Clinton and Bush
administrations has recognized the need for a Federal role in promoting
planning and smart growth. Administrator Whitman recently made the
Administration's support clear: ``Addressing new environmental
challenges requires us to manage all of our resources better--economic,
social, and environmental--and manage them for the long term. That is
why Smart Growth is so important--it is critical to economic growth,
the development of healthy communities, and the protection of our
environment all at the same time. The Bush Administration--and the EPA
especially--understands the importance of Smart Growth.''
Administrator Whitman was echoing comments offered by Housing and
Urban Development Secretary Martinez during his confirmation hearing
when he indicated that smart growth issues would be a priority at HUD.
He called for ``a national dialog on the challenges of growth and its
impact on quality of life'' in his testimony, and in response to a
question on what HUD's role should be in smart growth, Martinez
answered that managing growth is part of HUD's mission. He also
stressed that a Federal response to growth issues goes beyond HUD and
would involve other agencies and departments.
There is also a strong need to promote multi-state cooperation on
these issues. The Community Character Act specifically attempts to do
this by enabling grants for multi-state regional cooperation on
planning. Fostering regional cooperation and education is essential
because natural resources, watersheds, city borders, and development
impacts do not stop at artificial political boundaries. This is
certainly the case in New England, where all the States in the region
recognize the need to learn from each other and collaborate in order to
produce sustainable, smart growth outcomes throughout the region. We
know we cannot go it alone in Vermont and be successful without
engaging other States. We have worked with New Hampshire in assisting
them with analyses of State expenditure patterns as part of a State
sprawl report. Additionally, we have conducted joint training and
planner exchange programs with the Maine State Planning Office, and a
similar program has been requested by people in Massachusetts.
But New England is not the only place in the Nation where this type
of multi-state cooperation on planning is needed. Federal action is
sorely needed to help overcome the obstacles of working across State
lines. Grants through the Community Character Act for precisely this
kind of activity would provide a valuable incentive for improving
regional communication and collaboration, resulting in improved land
use throughout an entire region.
brownfields site redevelopment assistance act
APA and other proponents of smart growth were delighted by the
final passage of brownfields reform last year and equally pleased to
see the Bush Administration's budget request for brownfields programs.
Mr. Chairman, you and the members of this committee deserve great
praise for leading the long effort to seeing brownfields reform become
law.
Now is the time to build on that success with targeted assistance
for the planning and redevelopment of brownfields sites. Earlier
efforts focused on solving liability problems and providing resources
for site identification, evaluation and clean-up. These were critically
important first steps. But in order to realize the full economic,
environmental, and social potential of brownfield redevelopment, we
must go beyond a focus on remediation alone to an approach that places
brownfields within the larger context of community reinvestment and
revitalization. This is precisely what S. 1079 does.
By providing resources for planning, development of public
facilities and services, revolving loan funds for business development,
and general technical assistance associated with brownfield sites, this
legislation allows communities to not only cleanup sites but also make
these sites part of a broad economic development plan and strategy. In
essence, this bill would function as a ``multiplier'' effect for
current Federal investments in brownfield remediation and further
leverage private sector investments in these communities.
As one familiar with the particular challenges facing small towns
and rural areas, I am pleased that this legislation recognizes that
brownfields are not limited to urban America. Provisions focusing on
communities experiencing difficulties related to economic
restructuring, outmigration, and infrastructure deterioration will make
this a valuable resource for small towns.
The planning provisions in the bill are positive steps forward. By
promoting consistency between plans and brownfield projects, this
legislation helps ensure that grants would not just provide isolated
assistance but would be a catalyst for broader economic and community
development. Additionally, the legislation rightly articulates the
importance of community participation and visioning in planning for
brownfields-related redevelopment. Such provisions help answer long-
standing concerns about environmental justice in distressed
neighborhoods.
Finally, the bill envisions assistance for brownfield redevelopment
projects that ``conserve environmental and agricultural resources.''
This focus directly responds to the demand for smart growth plans and
projects. By including assistance for adaptive reuse, development of
land and abandoned property, and the of creation parks and recreational
opportunities, the bill can be an incentive for improved planning and
smart growth.
conclusion
Planners are heartened by this hearing and the important step
forward it represents. We are further encouraged by the legislation
contemplated this morning that would offer vital assistance to numerous
States and communities struggling with the consequences of change,
whether rapid growth and development or economic decline. These bills
recognize that the Federal Government can, and should, be a
constructive partner with communities seeking innovative solutions to
improving local quality of life through better planning and land use.
The Community Character Act and the Brownfields Site Redevelopment
Assistance Act are a modest investment that will bring substantial
dividends in improving the livability of cities, towns, neighborhoods,
and rural areas throughout the Nation. We hope this hearing is but a
first step toward their enactment.
We are committed to working with you, Mr. Chairman, and this
committee in making the promise of smart growth a reality.
Mr. Chairman, this concludes my testimony. I thank you and the
committee for the opportunity to be here today, and I would be pleased
to answer your questions at the appropriate time.
______
March 4, 2002.
Hon. James Jeffords, Chairman,
U.S. Senate,
Washington, DC.
Hon. Robert Smith, Ranking Minority Member,
U.S. Senate,
Washington, DC.
Dear Chairman Jeffords and Senator Smith: The undersigned
organizations, representing a broad array of interests and professions
working to strengthen communities and neighborhoods through improved
built and natural environments, applaud your leadership in holding a
hearing on smart growth and, particularly, the Community Character Act
(S. 975). We endorse this bipartisan legislation introduced by Sen.
Lincoln Chafee and urge you, and your committee colleagues, to consider
and approve S. 975.
This hearing is an important step in advancing the public
discussion about how the Federal Government can appropriately and
effectively support State and local smart growth activities. S. 975
provides an opportunity to assist and complement State and local
efforts to promote smart growth and is a perfect example of how to
support local planning efforts without undermining local control of
land use. With most State and local governments facing dire fiscal
situations, the need for limited Federal assistance is greater than
ever.
Americans are increasingly aware and concerned about unplanned
growth and its byproducts--loss of open space, congestion, limited
housing options, strip malls, and loss of ecological biodiversity--as
clearly indicated by surveys and the passage of numerous local ballot
initiatives to address these issues. S. 975 responds to these concerns
by authorizing voluntary funding assistance to State, tribal, and local
governments that request help in planning and implementing their
respective visions of sustainability.
The legislation recognizes that land use planning should not stop
at arbitrary jurisdictional boundaries and promotes coordinated,
regional land use planning. Further, S. 975 seeks to address the
tremendous need for planning and community development by the nation's
tribal governments. Other provisions allow grants for acquiring new
information technology to improve local planning, pilot projects to
support innovative planning, and technical assistance. This legislation
promotes smart growth principles and encourages States and localities
to create or update the framework necessary for good planning. It
creates a partnership with communities through incentives, not
mandates. This program is a modest investment that will bring
substantial dividends in improving the quality and character of cities,
towns, and neighborhoods.
Good planning and design make good business sense, in addition to
minimizing some of the harmful impacts that unmanaged growth can have
on local and regional ecosystems. Long-term planning and design help to
create communities with character and a variety of options for living
and working. As people are drawn to such places--as tourists or
residents--the economy thrives.
Again, thank you for your leadership and vision in holding this
important hearing. We ask that you continue to demonstrate your support
for smart growth by supporting and adopting S. 975.
Sincerely,
Lisa Blackwell, Managing Director, Government
Affairs, American Institute of Architects;
W. Paul Farmer, AICP, Executive Director,
American Planning Association; Marcia
Argust, Director, Legislative and Public
Affairs, American Society of Landscape
Architects; Mark Shaffer, Senior Vice
President, Defenders of Wildlife; Robert
Sokolowski, Executive Director, National
Association of Regional Councils; Deron
Lovaas, Deputy Director, Smart Growth
Policies, Natural Resources Defense
Council; Gordon Kerr, Director,
Congressional Affairs, National Trust for
Historic Preservation; John Kostyack,
Senior Counsel, National Wildlife
Federation; Meg Maguire, President, Scenic
America; Debbie Sease, Legislative
Director, Sierra Club; Don Chen, Executive
Director, Smart Growth America.
______
March 4, 2002.
Hon. James Jeffords, Chairman,
U.S. Senate,
Washington, DC.
Hon. Robert Smith, Ranking Minority Member,
U.S. Senate,
Washington, DC.
Dear Chairman Jeffords and Senator Smith: The undersigned
organizations, representing a broad array of interests and professions
working to strengthen communities and neighborhoods through improved
built and natural environments, applaud your leadership in holding a
hearing on smart growth and, particularly, the Community Character Act
(S. 975). We endorse this bipartisan legislation introduced by Sen.
Lincoln Chafee and urge you, and your committee colleagues, to consider
and approve S. 975.
This hearing is an important step in advancing the public
discussion about how the Federal Government can appropriately and
effectively support State and local smart growth activities. S. 975
provides an opportunity to assist and complement State and local
efforts to promote smart growth without undermining local control of
land use. With most State and local governments facing dire fiscal
situations, the need for limited Federal assistance is greater than
ever.
Vermonters, like many Americans, are increasingly aware and
concerned about unplanned growth and its byproducts--loss of open
space, congestion, decline of neighborhoods, limited housing options,
strip malls, and loss of ecological biodiversity. According to our 2001
poll, nearly two thirds of Vermonters think that current development
trends will lead to sprawl and that there is a need to take action to
stop it. S. 975 responds to these concerns by authorizing voluntary
funding assistance to State and local governments that request help in
planning and implementing their respective visions of sustainability.
Many communities find that they cannot develop or implement their
visions due to outmoded State planning and zoning enabling laws. The
legislation will offer assistance to States that want to update their
laws and find better ways to provide assistance to communities. Other
provisions allow grants for acquiring new information technology to
improve local planning, pilot projects to support innovative planning,
and technical assistance. S. 975 recognizes that land use planning
should not stop at arbitrary jurisdictional boundaries and promotes
coordinated, regional land use planning. This program is a modest
investment that will bring substantial dividends in improving the
quality and character of cities, towns, and countryside.
Good planning and design make good business sense, in addition to
minimizing some of the harmful impacts that unmanaged growth can have
on local and regional ecosystems. Our work with the business community
in Vermont demonstrates their commitment to long-term planning and
better design that will create communities with character and a variety
of options for living and working. As people are drawn to such places--
as tourists or residents--the economy thrives.
Again, thank you for your leadership and vision in holding this
important hearing. We ask that you continue to demonstrate your support
for smart growth by supporting and adopting S. 975.
Sincerely,
Elizabeth Humstone,
Executive Director, Vermont
Forum on Sprawl.
Virginia Rasch,
Executive Director,
Association of Vermont
Conservation
Commissions.
Mark Sinclair,
Senior Attorney and Vice
President, Conservation
Law Foundation.
Brian Dunkiel,
Attorney for Friends of the
Earth.
Paul Bruhn,
Executive Director,
Preservation Trust of
Vermont
Curt McCormack,
Director of Advocacy,
Vermont Public Interest
Research Group.
Elizabeth Courtney,
Executive Director, Vermont
Natural Resources
Council.
Sharon Murray,
President, Vermont Planners
Association.
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Statement of Deborah Anderson, Director Wood Partners, LLC
Chairman Jeffords, Senator Smith, and distinguished Members of the
Environment and Public Works Committee, my name is Deborah Anderson. I
am a Director of Wood Partners a multifamily real estate development
firm located in Durham, North Carolina. I am here today on behalf of
the National Multi Housing Council and the National Apartment
Association, trade associations representing the nation's multifamily
property developers, owners, managers and financiers.
NMHC and NAA commend the members of the committee for their work on
the important issue of strengthening America's communities. As I am
sure you already know, in recent years the concept of ``smart growth''
has taken the country by storm. In November 2000, more than 200 ballot
initiatives were passed on suburban sprawl and open space preservation.
While this is largely a State and local issue, there is also an
important role for the Federal Government. We believe that the
Community Character Act under consideration today fits that role by
providing the funding and incentives needed to help State and local
governments develop sound and comprehensive land use plans.
Tired of struggling with traffic, pollution, long commutes and
overcrowded schools, Americans are calling for more livable
communities. They are looking for pedestrian friendly neighborhoods
with more open space and better traffic flow. They are seeking
communities with walkable distances between homes and nearby shopping,
schools and entertainment.
Understanding that growth is inevitable, many State and local
policymakers are searching for ways to expand without sacrificing
quality of life. I know from my own experience in dealing with land use
policymakers on the State and local levels that they face complex
decisions as they endeavor to integrate all of the ingredients of
successful communities into specific land use decisions. Increasingly,
these decisionmakers are coming to appreciate that smart planning will
require new ways of thinking and new regional approaches.
Many are expanding their community development toolboxes to include
important, but often overlooked, assets, such as higher density
housing. As a developer of high quality apartment homes, I believe that
apartments are an integral piece of the smart growth solution.
Apartments conserve land to help preserve open space and create
pedestrian-friendly neighborhoods. They also use municipal
infrastructure more efficiently. For example, apartment households
generate 30 to 40 percent fewer vehicle trips than single-family homes.
Apartments place less burden on local schools and regional
transportation systems. They are an important driver of economic
development. They help revitalize neglected neighborhoods, create new
jobs and provide local, State and Federal tax revenues. Apartment homes
are increasingly becoming the housing type of choice for the new
demographic representing both the aging of our population and the boom
in younger households for the first time in 20 years.
Despite the newfound appreciation of apartment living among
consumers, many local governments still have barriers in place to
higher density housing, such as zoning programs that do not permit
compact development. Some rules require housing and non-housing uses to
be separated. The end result is that apartment developers, like myself,
eager to design and deliver the new pedestrian-friendly neighborhoods
citizens are calling for, are often blocked from doing so.
This is where Congress can play a role. NMHC and NAA support S.
975's creation of a Federal grant program to provide States with the
additional financial resources they may need to support and encourage
local authorities to update their land use planning activities. The
bill wisely relies on incentive-based measures, rather than command and
control systems.
The bill also properly recognizes the need to explore regional land
use planning. Smart growth issues often span the jurisdictional
coverage of several communities, particularly in the areas of
transportation and economic development. While the need for regional
planning is almost universally recognized, there are few effective
models. S. 975 specifically states that multi-state land use planning
should be facilitated through the grant program. This incentive will go
a long way to jump-starting a fresh approach to regional planning.
S. 975 also strikes an important note with its recognition that
economic development is an important consideration in land use
planning. According to an Urban Land Institute study, real estate
capital represents approximately 20 percent of the nation's total gross
domestic product. On the local level, real property taxes constitute
approximately 70 percent of all tax revenue. These facts support the
idea that the economic consideration posed by development are properly
considered in land use planning.
NMHC and NAA also strongly support the legislation's direction that
``a range of affordable housing options'' be included as a requirement
by States before receiving Federal moneys (Sec. 4(b)(1)(F)).
Communities that exclude apartments and other affordable housing
jeopardize their own continued prosperity. In doing so, they squeeze
out a segment of the population that is vital to local businesses as
both customers and employees. Communities that offer a diversified work
force and a wide range of housing options are more likely to attract
and retain top employers. An adequate supply of affordable housing,
therefore, can be essential to a municipality's economic growth. The
fact that S. 975 encourages consideration of affordable housing options
will encourage communities to take a fresh look at their approach to
this issue and consider ways they can support more affordable housing.
This is particularly important in high cost areas where the cost of
land and associated development costs have diminished the ability of
the private market to create affordable housing on its own.
NMHC and NAA also support the legislation's position that the
States, and not the Federal Government, are responsible for choosing
how the grant money is to be used (Sec. 4(c)). We believe that land use
is, and should remain, a local decision. Each unique jurisdiction has
its own goals and priorities, and land use planning should reflect
that.
As a developer, I have worked with local planning boards and town
councils in several States. While our discussions often focus on common
elements--roads, schools, playgrounds and water treatment facilities--
the answers to those questions vary with each locale. There is simply
no ``one-size-fits-all'' approach to land use planning.
NMHC and NAA support the Community Character Act with the
understanding that the bill does not endorse, by oblique reference, any
one particular land use-planning standard. We are specifically
concerned that the American Planning Association's (APA) recent
publication, Growing Smart Legislative Guidebook not be viewed as the
definitive land use guide. APA's Guidebook contains many sound
provisions, but it does not enjoy universal support among stakeholders.
Dissenting comments pointing out where the book is unbalanced in its
approach are attached to this testimony for your review. The important
principle here is that we believe State and local jurisdictions must be
free to study and employ a variety of planning tools, as they deem
appropriate. The Federal Government should encourage land use planning,
but it should not specify the plan. Land use decisions should properly
remain the precinct of the local jurisdiction.
We applaud the fact that S. 975 allows grant funds to be used for
education and consultation with policymakers (Sec. 4(d)). We believe
there is need for greater dialog and information sharing between
academicians, policymakers and the public on matters such as
infrastructure needs; economic sustainability; and how growth policies
affect the ability of the private market to provide affordable housing.
We believe the provision to encourage Pilot Projects of new land
use planning activities developed by local policymakers will help
create smarter, answers to our nation's growth challenges. We also
endorse the use of funds to develop voluntary educational programs, new
technologies and new electronic data bases to support land use planning
(Sec. 5(b)) to support local policymakers who do not always have access
to these resources.
In summary, NMHC and NAA believe the role of the Federal Government
in land use planning should be limited to funding through grants. As
the distinguished Senator from Rhode Island aptly stated when
introducing the bill, ``[t]hrough enactment of transportation, housing,
environmental, energy, and economic development laws and requirements,
Congress has created a demand for State and local planning. In fact,
the Community Character Act should be viewed as providing the Federal
payment for an unfunded mandate whose account is overdue.''
As the Nation moves forward to strengthen its communities and
accommodate changing demographics, local land use statutes will need to
be responsive to community needs. This bill is intended to provide
support for State and local land use planning activities without
undermining local land use controls. Thank you.
______
ATTACHMENT: Dissenting Comments on the APA Growing Smart
Legislative Guidebook
Comments of Paul S. Barru on Behalf of the American Road and
Transportation Builders Association; International Council of Shopping
Centers; National Apartment Association; National Association of Home
Builders; National Association of Industrial and Office Properties;
National Association of Realtors; National Multi Housing Council; and
Self Storage Association
preface
As the member of the Growing Smart Directorate representing the
``built environment'', I speak for the citizens who own land and who,
in any proposed use of such land, would be subject to the rules and
processes proposed in the Guidebook if adopted by States, regions,
counties, or municipalities. I submit this on behalf of the
homebuilders, office and industrial developers, real estate agents,
general contractors, road builders, engineers, architects, and others
who are generally classed as the built environment.
Clearly, I will not presume to comment on the whole of this
monumental work, but only briefly on three things: (1) assumptions that
either do or should underlay the process; (2) a major disappointment in
the Guidebook; and (3) a selected group of specific issues of such
major import to the whole enterprise of Smart Growth and its twin,
Smart Process, that if not implemented and managed properly, have the
potential to undermine much of the value that has been achieved.
assumptions
Smart Growth means planning for growth, not slowing growth or no
growth. The Guidebook is successful in reaching its objective of Smart
Growth and its twin, Smart Process, in some specific areas. However, on
the whole, it falls far short of what might have been achieved. This is
hardly a surprise when you consider the current state of growth
management and the constant battleground it has become. I feel the
process began to come undone as it moved ahead with a broad vision of
Smart Growth, because working assumptions and definitions were not
constantly revisited to see if they had continuing validity. In the
end, the process sought to satisfy two or more visions, often imposed
from outside of the staff and Directorate, by presenting alternatives
rather than doing the harder job of reaching consensus on a common
vision. Alternative choices for managing growth--within a common vision
of Smart Growth that means planning for growth as needed, not stopping
it--are what is needed to meet the needs of divergent communities.
Any approach to Smart Growth must be comprehensive. This means that
it must include concerns for the environment, the economy, and social
equity or justice. These three elements must be balanced. Like a three-
legged stool, if the legs are not the same length, it will not provide
a solid base to stand on; and if one leg is too long, the stool will
tip over.
The natural environment needs strong protection, but protection
comes in many forms. Some lands need to be preserved in public
ownership, while others are best protected by environmentally sensitive
development. Still other lands are suitable for intense development to
allow a community to accommodate its projected development needs. The
Guidebook falls short in identifying various types of land that require
protection and criteria to judge the best protection techniques. While
limited in scope, the Guidebook focuses on limiting development in
``sensitive areas'' with little guidance on defining what they are and
the best ways to protect them.
The absence of an economist on the Directorate or of any
significant economic or tax studies is an indication that the economics
of Smart Growth were only peripherally addressed. When essential
economic issues began to emerge, there was little willingness to
indicate at the very least that they were important and needed to be
considered, even if they were not included in any depth within the
Guidebook. To deal with the economy seriously, beyond the Guidebook's
modest efforts, you must include a consideration of economic
development and job generation, especially how they interact in
creating land use demand. Other related topics that need to be
understood include how taxation policy drives land use decisions,
favoring job generation without always addressing the provision of
adequate housing to match those jobs; how housing, commercial, and
retail markets interact in creating growth pressure; how you plan for,
build, and finance infrastructure in a timely and cost-effective
manner; among many other items that affect the economy.
In the simplest terms, social equity is concerned with how well
people can live in a community on the wages they are able to earn in
jobs created by economic development and the degree to which growth
benefits all segments of society. The Guidebook gives considerable
protection from the adverse consequences of growth but does not
adequately address the equity issues inherent in a community's failure
to ensure that affordable housing for all income segments is available.
The inclusions in the Guidebook are not sufficient.
To judge APA adversely for not having predicted that
``comprehensive planning'' for Smart Growth included such a broad array
of issues is unfair. This is an area of inquiry that grows as the
interrelatedness of many issues and their importance to the whole
emerges. While it might have been impossible to include all of these
within the scope of the original enterprise, the work suffers by not
indicating that these gaps exist. I hope that if the Guidebook
undergoes revisions in future years, the APA will consider analyzing
some of these areas and that broad advisory input from affected
interest groups will be incorporated in such revisions. In the
meantime, the absence of these issues in this Guidebook compromises its
goal of providing pathways for Growing Smart.
Growing Smart requires a blueprint or comprehensive plan that, when
adopted, becomes public policy.--The process for developing any
effective public policy must be inclusive, deliberate, and, to the
greatest degree possible, achieved by consensus. It cannot be a top-
down process, with public officials and staff driving and controlling
the process. Rather, they need to enable the broadest possible
community of voices and viewpoints to be heard and to participate. This
should also include private sector business people, who are often
excluded from the public debates. After all, they are the ones who take
many of the risks involved in implementing the growth plan. The goal is
to achieve a community vision that balances as many needs and desires
of the community as possible. This vision takes tangible form as public
policy known as an adopted comprehensive plan. Elected officials then
need to legislate the most effective structure for the efficient,
timely, and cost-effective implementation of this public policy.
Smart growth requires a smart process to fully implement what the
community seeks from its smart growth public policy. When a landowner
or any other citizen seeks to use their land or any other outcome in
strict conformity to the provisions of the master plan/public policy,
they have a right to expect a process that allows only directly and
significantly affected parties to participate. Unforeseen and
unexpected negative consequences of the proposed implementation need to
be dealt with equitably. The benefits to the community and the
applicant will be fidelity to the community's growth vision, the
elimination of unnecessary risk and time, and significant cost savings
to all parties, not the least being for taxpayers/consumers.
A basic philosophical premise of smart growth should be that
comprehensive plans be implemented, not nullified in piecemeal fashion
through the development review process. Issues settled during the
comprehensive plan debate should not be reopened for a period of time
following adoption if the plan and the process are to be meaningful.
major disappointment
At best, this is a complex document that requires a good deal of
knowledge to even begin to use. A solid index is only a partial and
incomplete solution. The cross-referencing list now included at the
beginning of each chapter is a good start, but to make this work truly
useful requires extensive cross-referencing within the text itself,
section-by-section, subsection-by-subsection. This is a major but
absolutely essential task for effective and complete use.
specific issues in the guidebook
My objections and recommendations relate to the eight most critical
areas of concern: standing and reopening of settled issues,
supplementation of the record, sanctions on local government for
failure to update plans, exhaustion of remedies, moratoria, vested
rights, third-party initiated zoning petitions, and designation of
critical and sensitive areas.
Standing and Reopening of Settled Issues
After embracing the traditional standard of ``aggrievement'' as the
basis for standing to petition for judicial review of a land use
decision (September 2001 Draft of the Guidebook, hereinafter
``September 2001 Draft''), the most recent draft (hereinafter, the
``October 2001 Draft'') inexplicably dilutes the definition of
``aggrieved'' and adds other options that effectively allow any person
with any ax to grind to pursue a court challenge, whether or not he or
she will actually suffer any special harm or injury, has appeared at or
offered evidence during a public hearing, or even lives in the impacted
community. This expansive approach to standing fundamentally alters the
system now in place across the Nation, which requires a party
challenging a land use decision to take part in the approval process
and offer comments, to actually live in the community in question, and
to demonstrate that the proposed use will cause special injury or harm
to them over and above its impact upon the public generally. These
liberal standing provisions will increase the amount of litigation that
communities will face and it is more likely the government will be sued
rather than a developer.
The objectionable provisions of the Guidebook with respect to
issues of standing seem to be motivated by a desire to be inclusive,
that is, to apply a liberal standard that is easily met. Section 10-
607(4) no longer includes an aggrievement test when determining who can
petition the courts on a land use matter, and Section 10-607(5) is
acknowledged in the commentary to afford standing to persons who
haven't even participated in the agency's hearings. Perhaps this
approach follows from the current trend of greater public participation
in planning. I wholeheartedly support the idea of extensive public
participation in planning. However, it does not follow from this that
broad public participation in development review or in judicial review
of site-specific development proposals is a good thing. On the
contrary, such participation would be detrimental and open the door to
undermining the work of the greater citizenry that helped to produce
and articulate the broad public policy themes of the comprehensive
plan. Liberal standards of public involvement are appropriate at the
level of planning, policy, and broad regulatory enactments such as
comprehensive zoning and zoning ordinance text amendments. But the
standards should become stricter as we move down to levels of post-
zoning implementation, such as site-specific project review, and
judicial review.
The public generally shares this view as evidenced by the
overwhelming rejection of Amendment 24 in Colorado and of Proposition
202 in Arizona in the November 2000, elections. A specific development
proposal that is consistent with the comprehensive plan and development
regulations is also consistent with the greater public's ``vision'' for
the future. It does violence to this vision when we open the appeal
process liberally to active special interests, no matter how well
intentioned, and permit them to derail worthy projects that do not
comport with their particular vision. A community cannot achieve its
vision of ``smart growth'' without a smart process that preserves and
protects its adopted vision from naysayers in the community.
Major issues decided at the comprehensive planning and zoning
stage, such as use, density or intensity, should not be revisited in
the post-zoning site-specific proceeding unless the application does
not comply with these decisions. It is critical that this principle be
recognized in the Guidebook. Otherwise, there will be no protection or
political cover for decisionmakers from the onslaught of entrenched
growth opponents who reside in areas planned for growth. They could
stop the proposed growth allowed in the Master Plan, oppose adopted
public policy and create costly delays.
legal analysis of the guidebook's approach to standing
<bullet> After previously acknowledging that ``aggrieved'' status
(with the twin elements of special harm or injury distinct from any
harm or injury caused to the public generally) should be the primary
criterion in determining one's standing to petition for judicial review
of a land use decision, the final draft Guidebook guts any such
requirement. First, the definition of ``aggrieved'' in Section 10-101
has been revised to make both ``special'' and ``distinct from any harm
or injury caused to the public generally'' optional. The principal
definition now requires merely an undefined generalized showing of
``harm or injury'' in order for one to have standing. (This is similar
to the discredited ``may be prejudiced'' test advanced in prior drafts,
and is also contrary to the understandings reached at the Directorate's
final meetings on September 23-24, 2001.)
<bullet> Second, Section 10-607(4) now broadly allows ``all other
persons'' who participated by right in an administrative review or who
were ``parties to a record'' to seek judicial review without any
showing of aggrieved status. This appears to be based upon comments by
the Staff in an October 12, 2001, Memorandum to Directorate members
suggesting that a showing of aggrievement on judicial review is
unnecessary in a record appeal when the challenger has already been
deemed to be aggrieved by the local government agency (October 12,
2001, Memorandum, p. 5). This view is contrary to established legal
precedent, since it is within the purview of the court (not the
administrative agency whose decision is under review (to determine
whether or not the challenger is aggrieved. The court's authority
cannot be usurped by an agency determination regarding aggrieved
status. See, e.g., Sugarloaf Citizens Assn. v. Department of
Environment, 686 A.2d 605 (Md. 1996), discussing the difference between
administrative standing before an agency and the requirement for
standing to challenge the agency's decision in court. While the former
rule is not very strict, ``judicial review standing'' requires that one
be both a party before the agency and ``aggrieved'' by the agency's
final decision (i.e., specifically affected in a way different from the
public at large). Determination of judicial review standing is
exclusively a judicial function and the court need give no deference to
the agency's finding in this regard. Id. Section 10-607(4) is a legally
flawed criterion, which effectively allows the administrative agency
whose decision is under review to determine who shall be ``aggrieved.''
<bullet> Third, Section 10-607(5) allows ``any other person,''
including persons who have skipped the agency proceedings altogether,
to seek judicial review merely upon a showing that they are
``aggrieved'' under the expansive new definition of that term in
Section 10-101.
<bullet> Treatise writers favor the traditional aggrievement
standard. As can be seen from the following examples, the views
expressed herein regarding Sections 10-101 and 10-607 (4) and (5) are
shared almost universally by treatise writers and courts.
<bullet> L``Almost all State statutes contain the `person
aggrieved' provision but only a minority extend standing to
taxpayers . . . Under the usual formulation of the rule, third-
party standing requires `special' damage to an interest or
property right that is different from the damage the general
public suffers from a zoning restriction. Competitive injury,
for example, is not enough. This rule reflects the nuisance
basis of zoning, which protects property owners only from
damage caused by adjacent incompatible uses. Although the
special damage rule is well entrenched in zoning law, a few
courts have modified it. New Jersey has adopted a liberal
third-party standing rule that requires only a showing of ``a
sufficient stake and real adverseness.'' Daniel M. Mandelker,
Land Use Law Sec. 8.02 at 337 (4th ed. 1997) (emphasis added)
(citations omitted).
<bullet> LThe requirement that a person must be `aggrieved' in
order to appeal from the board of adjustment to a court of
record was originally included in the Standard State Zoning
Enabling Act and has been adopted by most of the States. See
Kenneth H. Young, Anderson's American Law of Zoning Sec. 27.09
(4th ed. 1997).
<bullet> L``To be a person aggrieved by administrative
conduct, it is necessary to have a more specific and pecuniary
interest in the decision of which review is sought. A
Connecticut court said that in order to appeal, plaintiffs are
required to establish that they were aggrieved by showing that
they had a specific, personal and legal interest in the subject
matter of the decision as distinguished from a general interest
such as is the concern of all members of the community and that
they were specially and injuriously affected in their property
or other legal rights.'' Id., Sec. 27.10 at 523-24 (Citations
omitted.) (Emphasis added.)
<bullet> Case law in many jurisdictions is in accord with the
special injury rule. See, e.g., Hall v. Planning Comm'n of Ledyard, 435
A.2d 975 (Conn. 1980); DeKalb v. Wapensky, 315 S.E.2d 873 (Ga. 1984);
East Diamond Head Ass'n v. Zoning Bd. Of Appeals of City and County of
Honolulu, 479 P.2d 796 (Haw. 1971); Sugarloaf Citizens Ass'n v.
Department of Env't, 686 A.2d 605 (Md. 1996); Bell v. Zoning Appeals of
Gloucester, 709 N.E.2d 815 (Mass. 1999); and Copple v. City of Lincoln,
315 N.W.2d 628 (Neb. 1982).
<bullet> In view of these and other long established precedents for
establishing aggrievement as the standard for participating in the
proceedings of local government agencies and thereafter, for
challenging their decisions in court, it is disappointing that gaping
loopholes have been inserted in the Guidebook that (a) allow persons
who are not aggrieved to gain standing before agencies and thereafter
in court to contest an agency decision (Sec. 10-607(4)), and (b) allow
other persons, including adjacent residents (thus prima facia aggrieved
(to bypass the agency proceeding altogether and hold their challenge
for court (Sec. 10-607(5)).
recommended solution
Avoiding Reopening of Settled Issues
To avoid reopening issues settled in the adoption of a
comprehensive plan, a ninth item should be added to Section 10-207
(Record Hearings) to state that when any site specific development
application is submitted for review under this section within 6 years
of the adoption or amendment of the plan, major issues such as land
use, density or intensity shall not be reargued or reconsidered. The
only limited exceptions to this prohibition should be if the proposed
use of the site is not in accordance with the plan, or if the density
or intensity proposed for the site exceeds that in the plan and
applicable zone.
This is based on the sound premise that the site-specific
proceeding should not become a forum to reopen debate on the
community's already decided broad land use and growth policies. See J.
Tryniecki, Land Use Regulation: A Legal Analysis and Practical
Application of Land Use Law 323 (American Bar Assn. 1998).
Standing to Seek Judicial Review
Items (4) and (5) of Section 10-607 (Standing and Intervention)
should be deleted and new Sections 10-607 (4) and (5) should be added
to provide that only those persons who both participated in the record
hearing and are aggrieved (i.e., will suffer special harm or injury
distinct from that caused to the public generally) by the land use
decision has standing to intervene in the land use decision.
Supplementation of the Record
In a proposal that closely mirrors expanded standing, an optional
provision in the Guidebook would allow for expansion of the record by
the court that hears a land use challenge. Parties would be able to
introduce new studies, new testimony and new exhibits that were never
made available to the local jurisdiction that issued the land use
decision in the first place. Neither would the applicant have had an
opportunity to challenge, verify, or modify them in a deliberative
process. Such a proposal would turn courts into planning and zoning
appeals boards, allowing them not only to second guess a local
decision, but to make a decision entirely on their own with no
deference to local concerns.
In the final meeting of the Directorate, it was my understanding
that the commentary would be modified to include a statement that
remand is preferable to supplementation where the evidentiary record is
inadequate. The statement added to the October 2001 Draft of the
Guidebook leaves the issue ambiguous and open to interpretation that is
destructively broad.
Section 10-613 and the commentary preceding it address the pros and
cons of courts supplementing the record. The commentary mentions such
factors as time, fairness, cost, experience, etc. that should be
weighed but neglects one very important consideration that I believe
may override the others. That is the importance of maintaining a
separation of power between the legislature and the judiciary. It is
acknowledged that local legislative bodies may be subject to political
pressure, but that is the essence of representative democracy. In our
system of government, it is the job of legislative bodies to debate
public policy and in the end to make decisions that reflect the
dominant view. In contrast, the job of the judiciary in record appeals
from decisions of local government legislative and administrative
bodies is to review the decisionmaking process to ensure fairness, to
see that the decision is in accordance with the law, and to review the
record based upon a reasonableness standard (i.e. substantial evidence/
nor clearly erroneous), but not to substitute its judgment for that of
the local government decisionmaker.
I believe subsections 10-613(1)(d) and 10-613(2) blur the
distinction between the acts of local government legislatures and
administrative bodies on the one hand and the judiciary on the other
and permit the judiciary to usurp the proper role and powers of these
bodies. Land use decisions are by nature political decisions, thus the
proper places for the resolution of competing views are the local
legislature, planning board, or board of appeals, not the courtroom.
If, upon review of the record, it is found that the decisionmaker did
not consider essential information, the judge should remand the case
back to it with instructions to consider the missing information and
then make the decision. In our view judges should strongly resist the
urge to rule on the substantive merits of a land use controversy.
Unlike other cases that come before a judge, there may be no ``right''
or ``wrong'' in land use. Instead, the question is likely to be, ``what
decision provides the greatest good for the greatest number?'' and that
is the business of the local legislative body.
legal analysis of supplementation issues
<bullet> Courts conducting ``record reviews'' of land use decisions
should exercise judicial restraint, particularly with respect to agency
findings of fact on evidentiary matters, and should not allow the
record to be supplemented with additional substantive evidence on
appeal, or take other actions that would usurp the traditional
authority of local government in the land use approval process. The
Guidebook would broadly allow supplementation of the record by
reviewing courts, a dangerous precedent as it would make the court--not
the local government--the final decisionmaker in land use cases.?
<bullet> The most objectionable provision is Optional Section 10-
613(1)(d), which states that a reviewing court ``may supplement the
record with additional evidence'' if it relates to ``matters
indispensable to the equitable disposition of the appeal.'' This is an
open-ended invitation to abuse.
<bullet> Treatise writers and court decisions have narrowly
construed the role of courts on judicial review.
<bullet> L``The local government, not the court, should be the
final decisionmaker in land use cases. Generally, the judge's
role in land use litigation is ``to provide a forum for serious
and disinterested review of the issues, sharply limited in
scope but independent of the immediate pressures which often
play upon the legislative and administrative decisionmaking
processes.'' Williams, American Land Planning Law Sec. 4.05 at
100 (1988 Revision) (emphasis added).
<bullet> LHistorically, reviewing courts have emulated the
Uniform Administrative Procedure Act by limiting their review
of an agency action to the question of whether that action was
arbitrary, capricious, unreasonable or illegal. Where the
agency record is inadequate to support its action, the proper
practice is to remand the matter to the agency for rehearing
and redetermination. Carbone v. Weehawken Township Planning
Bd., 421 A.2d 144 (N.J. Super. 1980). See also, Yokely's Law of
Subdivisions Sec. 69(c) (2d ed. 1981). See also, Kenneth H.
Young, Anderson's American Law of Zoning Sec. 27.29 at 605 (4th
ed. 1997): (``Reviewing courts say they are not superzoning
boards and that they will not weigh the evidence.'')
<bullet> These authorities and numerous other reported cases
reflect the overwhelming consensus that an appellate court or a trial
court should not be second-guessing an administrative finding.
<bullet> LFederal Circuit.--SFK USA Inc. v. United States, No.
00-1305, 2001 WL 567509 (Fed. Cir. May 25, 2001) (Where an
administrative agency defends its decision before reviewing
court on the grounds it previously articulated, the court's
obligation is clear: it reviews the agency's decision under
Administrative Procedure Act (APA) and any other applicable
law, and based on its decision on the merits, it affirms or
reverses, with or without a remand. 5 U.S.C.A. Sec. 551 et
seq.);
<bullet> LState Courts.--Numerous State courts, including
courts in California, Connecticut, Maryland and Pennsylvania,
hold that the scope of judicial review is narrow; that remand
is the appropriate remedy when an agency has applied the wrong
legal standard; and that the court should not substitute its
judgment for that of the agency.
Recommended Solution.--Delete optional Sec. 10-613(1)(d) and
Sec. 10-613(2) as authority for a court to supplement the record.
Sanctions for Inconsistency and Lack of Periodic Review
The desire for some ``stick'' to compel local governments to comply
with State statutes regarding consistency of regulations with plans and
for periodic reviews of plans and regulations is understandable.
However, I have made known my opinion on several occasions that the
sticks proposed--voiding and loss of the presumption of reasonableness
of local land development regulations--are poor ones. This approach
unfairly jeopardizes the status of development approvals already issued
or under review, threatens the stability of the land development
process, and introduces unacceptable risk into development financing.
legal analysis of sanction provisions
<bullet> Unwise sanctions are imposed for failure of local
governments to timely meet statutory milestones, i.e., failure to:
adopt regulations consistent with the comprehensive plan
(Sec. 8-104);
review development regulations (Sec. 8-107);
update development standards (Sec. 8-401); and
record the comprehensive plan and regulations in the GIS Index
(Sec. 15-202).
<bullet> Missing these milestones has the effect of making local
government regulations or comprehensive plans ``void,'' ``voidable,''
``not effective;'' or subject to losing their ``presumption of
reasonableness.'' These are strong terms with serious legal
implications that can place the regulatory framework in legal limbo and
undermine the process by which land development is reviewed and
financed. The following statements illustrate why.
<bullet> L``We recognize the uncertainty and possible chaos
that might accompany invalidation of the County's existing
zoning scheme.'' Pennington County v. Moore, 525 N.W.2d 257,
260, n.3 (S.D. 1994).
<bullet> LVoid conditions are subject to collateral attack at
any time. Elkhart County Bd. of Zoning Appeals v. Earthmovers,
Inc., 631 N.E.2d 927, 931 (Ind. Ct. App. 1994); Sitkowski v.
Zoning Bd. of Adjustment of Borough of Lavalette, 569 A.2d 837
(N.J. Super. Ct. App. Div. 1990).
<bullet> LAvoidable provision is ``valid until annulled and is
``capable of being affirmed or rejected at the option of one of
the parties.'' Black's Law Dictionary 1569 (1979).
<bullet> L``The importance of the presumption [of validity] is
that it formally fixes the responsibility for planning policy
in the legislature, and prompts a reviewing court to exercise
restraint. Anderson's American Law of Zoning Sec. 3.13 at 117
(4th ed. 1996).
<bullet> LChing v. San Francisco Bd. of Permit Appeals (Harsch
Inv. Corp.), 60 Cal. App. 4th 888 (Cal. Ct. App. 1998) (statute
imposed 90-day limitations period for attacking a local zoning
decision).
L``The clear legislative intent of this statute is to
establish a short limitations period in order to give
governmental zoning decisions certainty, permitting
them to take effect quickly and giving property owners
the necessary confidence to proceed with approved
projects.'' Id. at 893. (Emphasis added.)
<bullet> The October 2001 Draft has addressed these concerns with
respect to Section 8-107. However, the same defects in Sections 8-104,
8-401, and 15-202 remain unaddressed.
Recommended Solution: The section entitled Consistency of Land
Development Regulations with Local Comprehensive Plan states that
actions not consistent with the comprehensive plan shall be voidable.
This section should not provide that a failure to comply with
timeframes for updating comprehensive plans will affect the validity of
any land development regulation or land use action of the local
government.
The Section on Uniform Development Standards should not provide
that the failure of State planning agencies to conduct a timely general
review and report of uniform development standards will result in the
standards loosing their presumption reasonableness. This section should
state that failure to file a timely report as required by this section
shall not affect the validity or presumption of reasonableness of
existing uniform development standards, nor of permits issued pursuant
to such standards.
Section 15-202 (Recordation Requirements) should not suggest that
the failure to comply with recording requirements will render
comprehensive plan, subplans, and land development regulations ``not
effective.'' Instead, this section should state that the failure to
comply with the recording requirements of this Chapter shall not affect
the validity, effectiveness or presumption of correctness of any plan
or land development regulation.
Exhaustion of Remedies
An essential element of smart process is a means of establishing
when the approval process has run its full course and a land
development decision is final. If the decision process is open-ended
and lacks closure, then it is also unpredictable. Unpredictability adds
delay and risk, and the costs associated with risk and delay are
ultimately paid by consumers as well as by taxpayers.
I applaud the authors of the Guidebook for the needed and
progressive reform proposed in Section 10-603 on the finality of land
use decisions. Unfortunately, this important reform is contradicted and
negated by the provisions of Section 10-604, Exhaustion of Remedies. To
support the provisions on finality the Guidebook should have provided
here for streamlined qualification for appeals and made clear that in
normal circumstances an applicant need only apply for remedies that are
actually available. The Guidebook also fails to consider and include
among its criteria for finality important guidelines from the Supreme
Court's recent decision in Palazzolo v. Rhode Island.
legal analysis of administrative exhaustion
<bullet> The well-conceived ripeness reforms (Sec. Sec. 10-201, 10-
202, 10-203, 10-210, and 10-603) may have been undone by overly complex
requirements for exhaustion of remedies. The Model requires an
applicant to exhaust three additional remedies after the initial agency
decision before seeking judicial review (Sec. 10-604). (This has always
been a ``ripe'' area for abuse of process.)
<bullet> LUnless the administrative remedy is futile or
inadequate, applicants must:
Lappeal for administrative review (Sec. 10-209);
Lapply for a conditional use (Sec. 10-502); and
Lseek a variance (Sec. 10-503).
<bullet> LExhaustion of these ``remedies'' could add years to
the review process and effectively gut the ripeness reforms.
This, on top of a growing trend in State courts to apply the
draconian ripeness standards used in Federal courts. See Daniel
R. Mandelker, Land Use Law Sec. 8.08.10 (4th ed. & Supp. 2000).
Professor Mandelker, although a self-described ``regulatory
hawk'', has long been a critic of abusive practices in agencies
and courts regarding the finality doctrine as espoused in
Williamson County Regional Planning Commission v. Hamilton
Bank, 473 U.S. 172 (1985). See Testimony of Daniel R. Mandelker
regarding H.R. 1534 before the House Judiciary Committee,
Subcommittee on Courts and Intellectual Property, September 25,
1997. See also Amicus Brief of the American Planning
Association in Suitum v. Tahoe Regional Planning Agency, 117 S.
Ct. 1659 (1997). This portion of APA's brief was later
``repudiated'' by APA in its testimony to Congress opposing
H.R. 1534. See letter of September 16, 1997, from APA
President, Eric Damian Kelly, to the Honorable Henry J. Hyde,
Chair, House Judiciary Committee. These practices have made it
virtually impossible for Fifth Amendment Takings claimants to
gain access to Federal courts. See J. Delaney and D. Desiderio,
Who Will Clean Up The Ripeness Mess? A Call for Reform so
Takings Plaintiffs Can Enter the Federal Courthouse, 13 Urb.
Law. 195 (1999).
LPublic agency abuse of the land use review process has long
been a concern. An excellent discussion and compilation of some
of the numerous commentaries on this serious problem may be
found in the June 2001 issue of Zoning and Planning Law Report.
See Rodney L. Cobb, Land Use Law: Marred by Public Agency
Abuse, Zoning and Planning Law Report, Vol. 24, No. 6.
<bullet> Palazzolo: The Supreme Court's Latest Statement on
Ripeness
In Palazzolo v. Rhode Island, 121 S.Ct. 2448 (2001), which is not
mentioned in the October 2001 Draft's commentary on Section 10-604, six
members of the U.S. Supreme Court provided important direction on the
issue of ripeness. The Court stated:
L``While a landowner must give a land-use authority an
opportunity to exercise its discretion, once it becomes clear
that the agency lacks the discretion to permit any development,
or the permissible uses of the property are known to a
reasonable degree of certainty, a takings claim is likely to
have ripened.''
Recommended Solution.--At the final meeting of the Directorate, I
understood that the final draft would be amended to add that an
applicant should not have to seek approval of a conditional use when
such a use would not be practical for the applicant. Instead, Section
10-604(1) uses the more ambiguous term ``applicable'' regarding both
conditional uses and variances. The explanatory language states that
``if there is no conditional use provision applicable to the property''
as zoned, the applicant does not have to seek a conditional use before
commencing judicial review. This is not the problem I was concerned
about. For example, an applicant seeking approval of a 10-lot
residential subdivision would not be interested in having to file for a
group home or medical clinic--even if available in the zoning
ordinance. To avoid abuse and unnecessary filing of applications, as
discussed in Palazzolo, Section 10-604(1) should be revised to delete
the requirement to seek approval of a conditional use (as provided in
Sec. 10-502) and to limit the exhaustion requirement to a practical
remedy, which might be either an appeal for administrative review
(Sec. 10-209) or filing for a variance (Sec. 10-503).
Moratoria
Moratoria are indicators of planning failure. Clearly, absent some
catastrophe or unforeseeable event, a reasonable planning process
should not lead to a pass where growth is brought to a stop by fiat.
But, catastrophes and unforeseen events do occur from time to time, and
the law in most States allows for temporary moratoria to protect public
health and safety. However, when the difficulty arises because of a
failure to plan or inadequate planning, those responsible should not
escape the consequences of their failure. Nor should the building
industry and housing consumers suffer from the failure of others to do
their jobs properly.
It is recognized that local communities are often challenged by the
impacts of growth, particularly impacts on infrastructure. That is why
it is so important to plan for infrastructure at the same time the
community is planning for the expansion of population, jobs, and
housing. While it is one thing to create a plan for the provision of
public facilities, it is another thing to finance and implement that
plan. Not every community does a good job getting infrastructure built.
Other spending priorities and pressure to keep taxes low make it
difficult to keep up with infrastructure demands. Nonetheless, getting
infrastructure built is a public sector responsibility. It is too easy
to use moratoria to escape this responsibility.
The October 2001 draft deletes the provisions in the Guidebook that
would have permitted moratoria to be imposed on the grounds of ``any
significant threat to the . . . environment,'' and in lieu thereof
inserts protection of the ``general welfare'' as an additional ground
for imposing moratoria. While ``general welfare'' is an improvement
over singling out ``the environment'' as one element of public policy
that should be allowed to trump other pressing public needs, such as
affordable housing and jobs, it is a broad standard that can be used to
allow moratoria to be imposed for virtually any reason. At the final
Directorate meeting, it was agreed that the ``or the environment''
standard would be excised wherever it appeared in the Guidebook. This
has apparently not been done. See, e.g., optional Sec. 8-604(4), which
was the section under discussion, let alone other possible sections in
the Guidebook.
The Guidebook also permits moratoria while the government prepares,
adopts or amends comprehensive plans, historic preservation plans or
land development regulations, absent any looming threat to public
health or safety (Section 8-604 (3)(b) and (c)). The provisions for
potentially indefinite, open-ended moratoria (see for e.g., Sections 8-
604(3)(b) under Alternative 2, 8-604(8) and 8-604(10)) are
inappropriate. Moratoria should be for a definite, fixed period, in no
case to exceed 1 year.
Moratoria are serious, last-resort measures that should be
judiciously applied. When the legal criteria for moratoria are
difficult to satisfy, an incentive is created to plan more carefully.
The whole point of the Growing Smart exercise is to change and improve
the level of planning, and incentives have a role in bringing that
about.
Accordingly, a strict standard of ``danger to public health and
safety'' that must be established before a moratorium may be declared
would be fitting. This standard, observed by several States, reflects a
public policy that moratoria are serious matters not to be used as a
convenience, but as a last resort. While a moratorium may stop the
issuance of development permits, it has no effect on housing demand.
Its effect may thus be to direct growth outside the boundaries of the
government that declared the moratorium and thereby contribute to
sprawl. For this reason, States may wish to limit local governments'
power to use this tool by adopting a strict standard. In addition,
States may wish to adopt a strict standard to ensure that local
governments take seriously their responsibility to plan for and build
infrastructure. If the standards for use of moratoria are set too low,
then there is less incentive to do a good job of planning. With proper
planning, most conditions that might give rise to use of moratoria
should be avoidable. In rare cases, where even good planning cannot
prevent an unforeseen danger to public health and safety, the statutory
language in this alternative would permit limited use of a moratorium.
legal analysis of moratoria provisions
The Guidebook authorizes moratoria on a virtual open-ended basis
(up to 1.5 years or more), and ``planning moratoria'' (up to 2 years or
more) are also authorized (Sec. 8-604). In addition, no meaningful
restrictions on moratoria are provided in designated growth areas.
<bullet> In designated Smart Growth areas, moratoria should be:
Llimited to circumstances in which a serious threat to public
health or safety exists;
Llimited as to duration; and
Lthe government entity imposing the moratorium should be
required to immediately address and resolve the problems giving
rise to the moratorium. See Westwood Forest Estates v. Village
of S. Nyack, 244 N.E.2d 700 (N.Y. 1969).
<bullet> Moratoria are not part of the planning and zoning process.
Rather, they are often the result of a failure to properly plan.
<bullet> L``Planning moratoria'' should generally be
prohibited or severely limited.
L``Even construing the provisions of the [enabling act]
liberally, we find that the power to enact a zoning ordinance,
for whatever purpose, does not necessarily include the power to
suspend a valid zoning ordinance to the prejudice of a land
owner . . . More significantly, the power to suspend land
development has historically been viewed in this Commonwealth
as a power distinct from and not incidental to any power to
regulate land development. Accordingly, as the [enabling act]
is silent regarding land planning through the temporary
suspension of development, we decline to condone a
municipality's exercise of such power.'' Naylor v. Township of
Hellam, 773 A.2d 770 (Pa. 2001) (emphasis added).
<bullet> Moratoria raise takings issues as well. See D.R. Mandelker
and J.M. Payne, Planning and Control of Development, Cases and
Materials 642 (5th ed. 2001).
<bullet> Significantly, on June 28, 2001, the U.S. Supreme Court
granted certiorari in the case of Tahoe-Sierra Preservation Council v.
Tahoe Regional Planning Agency, 228 F.3d 998 (9th Cir. 2000), cert.
granted, 121 S.Ct. 2859, 150 L. Ed. 2d 749 (U.S. June 28, 2001).
Certiorari was granted on the question ``[w]hether the Court of Appeals
properly determined that a temporary moratorium on land development
does not a constitute a taking of property requiring compensation under
the takings clause of the United States Constitution.''
Recommended Solution.-- Delete Alternative 1 in Sec. 8-604(3), as
it would authorize moratoria to be imposed for virtually any reason.
Delete Alternative 2 in Sec. 8-604(3), particularly Sec. Sec. 8-
604(3)(b) and (c), allowing planning moratoria of 2 years (or more).
Planning moratoria should not be allowed, and if allowed, should never
exceed 6 months.
Revise Sec. 8-604(8) to limit extensions of moratoria (other than
planning moratoria, which should not be extended (to not more than one
6-month period, and only upon a finding of ``compelling need'' as
defined in Sec. 8-604 Alternatives (2)(d) and (3)(b).
Delete Sec. 8-604(10)(a) and (b) which allow State or local
governments to impose additional ``temporary moratoria'' upon already
issued permits or to adopt ``temporary policies'' against approving
zoning map amendments. Alternatively, these additional restrictions
should only be imposed upon a finding of ``compelling need'' as defined
in Sec. Sec. 8-604(2)(d) and (3)(b).
Vested Right to Develop
Traditional late vesting rules in effect in most States are out of
date and unfair. These require issuance of a building permit and
commencement of construction (or other acts of reliance) in order for
rights to vest. Late vesting rules do not recognize the complexity of
the modern regulatory environment, or the difference between a single
building project on the one hand, and long-term land development or
multi-building projects on the other. Statutory reform is urgently
needed in this area and the Guidebook has taken steps to provide it.
Vesting of development rights should be recognized earlier in the
process, such as at the time of subdivision or site plan approval, or
at the time of filing of a complete application for subdivision/site
plan approval.
A legally vested right to develop land is essential to the
stability of development processes and real estate markets. The
Guidebook, in Section 8-501, provides two alternatives. The first
alternative is a vesting model that establishes a vested right to
develop (which includes design, planning and preparation of the land
for development, as well as construction) as soon as a complete
development application is filed. The second alternative has been
modified from the previous second alternative that required the
issuance of a permit and ``substantial and visible construction'' to
one that allows vesting based upon ``significant and ascertainable
development'' pursuant to a development permit. This is much more
equitable than the original second alternative since it appears to
recognize expenditures (and other acts of reliance) based on the
development of the property, rather than merely on construction of one
or more buildings. The development process, from design to approval to
construction, is significantly more complex today than it was 50 years
ago.
Although the proposed first alternative allowing vesting to occur
upon submission of a complete application is laudable and is recognized
in some States, it may be more reform than some other States are
willing to undertake. Thus, the second alternative proposed in the
October 2001 Draft is also appropriate if it is interpreted as
recognizing vested rights based upon development work pursuant to
appropriate approvals, rather than upon construction of a building or
buildings pursuant to a building permit. (See Legal Analysis.)
legal analysis of vesting provisions
<bullet> In today's world, the land use regulatory process has
become increasingly elongated and complex, with environmental
permitting often overlaying the traditional review process, regulations
proliferating, more reviewing agencies in the mix, and more public
hearings. All of these factors, and the increasing uncertainty that
accompanies them, have led to a serious problem, particularly for long-
term, multi-building projects, which must receive many development
approvals before the first building permit is obtained. The design and
approval phases of any development, particularly one which involves
multiple buildings, is time consuming and expensive. Before a single
footing is poured, architects and experts must be hired, attorneys
retained, engineering started, a series of regulatory systems
navigated, equipment leased, materials ordered, financing arranged and
site development work commenced. Thus, it is appropriate that
``development'' activity pursuant to government approvals, and not
merely ``construction'' of a building or buildings pursuant to a
building permit, be the criterion for recognizing vested rights.
<bullet> However, it must be noted that the Guidebook's definition
of ``development permit'' lists a number of approvals, including a
``building permit'' (Sec. 10-101), could be interpreted to apply solely
to a building permit. If this were to be the interpretation, the
language would have the exact opposite effect of what was intended,
which was to suggest an early vesting rule that recognizes the huge
expense and commitments required to prepare a development plan and
proposal. Thus, the revised second alternative in Section 8-501, if it
were to be interpreted to be applicable only to a building permit,
could also be construed as authorizing a late vesting rule (similar to
the common law vesting rule in effect in approximately 30 States (that
would not confer vested status on a project until after a building
permit has been issued and significant and ascertainable construction
thereunder has occurred. This would be a draconian imposition of the
rule in today's multi-layered regulatory environment because it ignores
the often numerous development approvals that a project may have
previously received and implemented. If applied in this manner, the
revised section relating vested status to significant and ascertainable
development pursuant to a development permit would not affect
meaningful reform and instead would only embalm the status quo.
(Unfortunately, the Guidebook's definition of ``development permit''
does not include preliminary subdivision plans.)
<bullet> Approximately 12 States have enacted vesting laws, several
of which recognize one's right to proceed with development under the
law in effect at the time of approval of a site-specific application,
such as a preliminary subdivision plan. Other States' laws (e.g.,
Connecticut) allow vesting even earlier, such as at the time of
submission of the initial development application. Both of these
approaches are reasonable.
<bullet> Maryland is cited in the Guidebook as a primary source of
the late vesting rule, which is as it should be, since Maryland's
``very late'' vesting rule is among the most inflexible in the country.
Indeed, Maryland courts have not recognized vested rights under this
rule even in circumstances where the landowner's failure to acquire the
requisite building permit and commence construction is the result of
previously adjudicated or acknowledged unlawful conduct of the
government. See, e.g., Sycamore Realty Co. Inc. v. People's Counsel of
Baltimore County, 684 A.2d 1331 (Md. 1996); Rockville Fuel & Feed Co.
v. Board of Appeals, 291 A.2d 672 (Md. 1972).
Recommended Solution.--Retain Alternative 1 and revise Alternative
2 to clarify that vesting upon commencement of ascertainable
development does not require that the project must have received a
building permit. Amend the definition of ``development permit'' in
Section 10-101 to include preliminary subdivision plans or plats.
Commonly, most of the detailed (and expensive) engineering design work
must be accomplished in preparation at the preliminary plat stage.
Third-party Initiated Zoning Petitions
I strongly object to subsections 8-103(1)(d) and (e), which allow
new land development regulations (and zoning changes) to be initiated
either by petition of owners of record lots constituting ``51 percent
of the area that is to be the subject of the proposed ordinance,'' or
by petition of a stated minimum number of ``bona fide adult residents
of the local government [sic].'' At the final Directorate meeting, it
was indicated that the text would include a statement that petitions of
this nature should be disfavored.
The language that has been added does not adequately convey that
the initiative process is extremely destabilizing to orderly planning
and social equity and undermines settled planning and zoning decisions.
It is all the more so when it can be accomplished by a mere plebiscite
of a neighborhood. Neighborhood plebiscites to effect zoning changes
are unlawful in many States. See, for example, Benner v. Tribbit, 57
A.2d 346 (Md. 1948). There is an excellent discussion of this problem
in the case of Township of Sparta v. Spillane, 312 A.2d 154 (N.J.
Super. 1973). The fact that a minority of States authorizes the
initiative process through their constitutions or State enabling laws
by no means establishes the wisdom of this process, or its value in
achieving the goals of Smart Growth. It is helpful that the final draft
has been amended to recognize this point.
legal analysis of third party zoning petitions
<bullet> The Guidebook acknowledges that some States authorize land
development regulations to be initiated:
<bullet> LBy 51 percent or more of record lot owners ``in the
area that is to be the subject of the proposed ordinance''
(Sec. 8-103(1)(d)), or
<bullet> LBy ``petition of a minimum percentage of bona fide
adult residents'' of the jurisdiction (Sec. 8-103(1)(e)).
Allowing local land use regulations to be enacted via voter
initiative or by a neighborhood plebiscite can completely destabilize
the land use regulatory process and promote exclusionary zoning. The
fact that the local legislative body would make the final decision
regarding enactment of the proposed legislation does not ameliorate the
mob hysteria that often accompanies such initiatives. See, e.g., City
of Eastlake v. Forest City Enterprises, 426 U.S. 668 (1976), United
States v. City of Black Jack, 508 F.2d 1179 (8th Cir. 1974), cert den.,
422 U.S. 1042 (1975). Neighborhood plebiscites are often used to affect
the civil rights or property rights of others.
<bullet> Of course, initiatives that are authorized by State
Constitutions are likely beyond the reach of remedial legislation.
However, the Model should not encourage the use of initiatives as they
have been almost universally criticized as antithetical to good
governance and good planning. See, e.g., David Broder, Democracy
Derailed--Initiative Campaigns and the Power of Money (Harcourt)
(author is a senior columnist for the Washington Post).
<bullet> Criticism of the initiative as a tool for planning and
zoning has been particularly harsh and widespread. See, e.g., Nicholas
M. Kublicki, Land Use by, for, and of the People: Problems with the
Application of Initiatives and Referenda to the Zoning Process, 19
Pepp. L. Rev. 99, at 104, 105, 155, 157-158 (1991).
<bullet> Courts have been equally suspicious of the initiative and
referendum. See, for example:
LTownship of Sparta v. Spillane, 321 A.2d 154, 157 (N.J. Super.
1973) (``Among other things, the social, economic, and physical
characteristics of the community should be considered. The
achievement of these goals might well be jeopardized by
piecemeal attacks on the zoning ordinances if referenda were
permissible for review of any amendment. Sporadic attacks on a
municipality's comprehensive plan would tend to fragment zoning
without any overriding concept.''). To the same effect are:
Benner v. Tribbit, 57 A.2d 346, 353 (Md. 1948); Leonard v. City
of Bothell, 557 P.2d 1306, 1309-10 (Wash. 1976); City of
Scottsdale v. Superior Court, 439 P.2d 290, 293 (Ariz. 1968).
Recommended Solution.--Delete Sec. 8-103(1)(d) authorizing
ordinance text and map amendments to be ``initiated'' by 51 percent of
the owners of lots of record in ``the area'' that is to be the subject
of the proposed ordinance, and replace it with a new Sec. 8-103(1)(d),
which would allow owners of lots of record to apply to the local
government legislature for regulatory relief in situations affecting
their property or the general community. The local government would
retain the discretion whether to accept or consider the amendment
application.
Of course, a landowner's right to seek redress of a site-specific
problem through legislation (such as a zoning text amendment) would not
absolve the local government from evaluating the proposed amendment on
the basis of whether it would promote the health, safety, and welfare
of the general public.
Similarly, optional Section 8-103(1)(e), authorizing a specified
percentage of adult residents of the local government to petition for
ordinance amendments, should be deleted. If a single category, or a
group of citizens, have a meritorious case for amending an ordinance,
they can pursue it under Sec. Sec. 8-103(1)(a), (b) and (c) by
convincing their legislative body or planning agency of the merits of
their proposal. If they are dissatisfied with the outcome, they can
voice their displeasure in the next election.
Designation of Critical and Sensitive Areas
The Guidebook defines ``critical and sensitive areas'' as those
areas that contain or constitute natural resources sensitive to
excessive or inappropriate development. (Section 9-101(3)(c)). This
definition is extremely broad. All areas can contain or constitute some
natural resource. Certainly, any undeveloped property could easily be
categorized as containing or constituting a ``natural resource.'' In
fact, no definition of ``natural resource is provided within the text.
Furthermore, the Guidebook definition refers to ``excessive or
inappropriate development'' but does not attempt to define what these
terms mean. Without a clear, concise definition, any development could
be identified as ``excessive or inappropriate.'' Such lack of clarity
or of any definition altogether could easily allow a local government
to restrict any type of development in any area.
The Guidebook language provides that local governments can opt out
of adopting regulations for critical/sensitive areas if all critical/
sensitive areas in their jurisdiction are designated as areas of
``state'' critical concern (Section 9-101(1)). However, just as
importantly, the local government should be able to avoid adopting
regulations for critical/ sensitive areas that have been designated as
``critical'' by the Federal Government. For example, the U.S.
Endangered Species Act of 1973 (ESA) requires the Federal Government to
designate ``critical habitat'' for endangered or threatened species.
The ESA provides extensive protection of ``critical habitat.'' The ESA
requires an applicant to apply for a permit from the Fish and Wildlife
Service (FWS) or National Marine Fisheries Service (NMFS) if their
action will likely impact an endangered or threatened species (which
would likely occur in an area designated as critical habitat). The Act
also requires projects within critical habitat, needing a Federal
permit, approval or funding to go through a consultation process with
FWS or NMFS. If the outcome of the consultation determines that the
activity will likely adversely affect the survival and recovery of the
species, the applicant will be required to minimize or mitigate the
impacts of the activity.
Recommended Solution.--Provide a definition for ``natural
resources'' similar to the following: natural resources are plants,
animals, or useful minerals indigenous to a specific site that provide
benefits not only to the owner of the site but to the public generally
and that the exploitation of which would have a detrimental effect on
the public welfare.
Amend the definition of ``critical and sensitive areas'' to
include: lands and/or water bodies containing natural resources and/or
which are themselves natural resources the exploitation of which would
cause a threat to the public health, safety, or welfare.
Provide a definition for ``excessive or inappropriate development''
similar to the following: excessive or inappropriate development is
grading, construction, or site disturbance that is unlawful or not in
compliance with duly adopted regulations or not in compliance with duly
issued permits.
Provide in Section 9-101(1) and/or in Section 7-202 (5) an opt-out
provision for lands designated as ``critical'' by the Federal
Government.
conclusion
While many of my comments have been frankly critical, hopefully
they will be perceived as constructive in their intent. Stuart Meck,
his able staff, and important outside consultants have produced an
impressive and very useful piece of work. The thoughtful and diligent
work of a dedicated Directorate who read and commented extensively and
constructively on literally thousands of pages of text is not to be
overlooked. That the Guidebook can and should be made better is not a
detraction of the work as it stands, but rather on the broad scope and
great complexity of the undertaking. I consider it a privilege and a
great learning opportunity to have been allowed to work on the Growing
Smart Directorate.
__________
Statement of Don Chen, Executive Director, Smart Growth America
Mr. Chairman, Ranking Member Smith, and Members of the Senate
Committee on Environment and Public Works, thank you for holding
today's hearing on Smart Growth.
I am the Executive Director of Smart Growth America, a nationwide
coalition of more than 70 organizations, including the Enterprise
Foundation, the League of Women Voters for Smart Growth, American
Farmland Trust, Natural Resources Defense Council, and the National
Low-Income Housing Coalition. Together, we promote smart growth, a
strategy of development that makes efficient use of natural resources
and infrastructure, revitalizes neighborhoods, keeps housing
affordable, protects farmland and open space, and provides people with
more transportation choices.
Smart Growth is a local issue that is driven by decisions made by
individuals and families. These include everything from a developer's
decision to build a variety of residential, commercial and retail
buildings near a transit station to a farmer or rancher's decision to
sell development rights to boost the viability of working his land.
Land use decisions are made locally, so many people naturally ask
the question, is there a Federal role in smart growth? The answer--
unequivocally--is yes. Local and individual land use decisions are
influenced by incentives and policies that have been made at the local,
State and Federal levels. The Federal Government has had an enormous
impact on development patterns for decades, if not centuries. A 1999
Fannie Mae Foundation survey of leading urban scholars found the
Interstate Highway System and the Federal Housing Administration's home
mortgage insurance program to be ranked as the top two influences in
shaping American cities and metropolitan development during the past
half century.
The Federal Government has affected development patterns in the
past, and will continue to do so in the future. The real question is,
what is the appropriate role? There are four functions.
First, the Federal Government should share information about best
practices, decisionmaking tools, and research. State and local
governments do not have the capacity to identify, analyze or develop
tools, such as complex predictive computer models or urban planning
software, nor should they need to reinvent the wheel in search of
practices and policies that will allow them to use their economic and
natural resources more efficiently.
Federal agencies can assist States and communities by disseminating
information such as the Department of Housing and Urban Development's
new report on modern rehabilitation codes, entitled Smart Codes in Your
Community: A Guide to Building Rehabilitation Codes (August 2001). The
report identifies and analyzes State innovations that have yielded
substantial smart growth benefits. For example, in 1997 the State of
New Jersey worked with developers, firefighters, building inspectors
and environmental groups to adopt a ground-breaking rehabilitation code
to encourage the renovation of decaying buildings. This new code was
necessary because in the past, rehabilitation codes were mainly derived
from inflexible new construction standards, which often required
unreasonable overhauls of older buildings. Within a year after these
new codes were adopted, rehabilitation investment statewide rose by 8
percent. In the cities of Newark, Jersey City and Trenton, spending
increased by 60 percent, 83 percent and 40 percent, respectively. Gains
in Newark totaled $41 million. The strategy was so successful that
other States, such as Maryland, are following suit. The HUD report
catalogues these emerging building rehabilitation codes to help other
States and localities address the widespread problem of decaying or
abandoned properties, a top priority for HUD Secretary Mel Martinez.
Rehabilitation codes and other smart growth tools are already being
used nationwide to help communities make decisions on how their
communities can grow. For instance, PLACE<SUP>3</SUP>S (Planning for
Community, Energy, Economic, and Environmental Sustainability) is a set
of predictive computer models developed by the Department of Energy
that helps communities understand how their growth and development
decisions can lead to better economic, community, and environmental
outcomes. It integrates planning, design, and quantitative measurement
into a public involvement process that is appropriate for both regional
and neighborhood-scale planning. PLACE<SUP>3</SUP>S evaluates how
efficiently a community integrates land uses, provides housing and
jobs, transports people and materials, allocates public infrastructure
improvements, and uses other resources. It has proven to be an
invaluable component of many recent transportation and land-use
planning projects across the U.S. and is increasingly in demand.
For example, the city of Salem, Oregon is creating a city-wide
preferred growth strategy using the PLACE<SUP>3</SUP>S model. The city
held a series of workshops to apply three land use scenarios throughout
Salem and analyze their impacts on nine neighborhoods. Workshop
participants were asked to create a number of alternative land use
scenarios that met a target range of housing and employment densities
that matched the city's vision and principles for future population
growth. The PLACE<SUP>3</SUP>S model was used interactively to adjust
the new scenarios in real time, compare them against existing land uses
and current zoning for each geographic location, and then analyze the
potential ``livability'' of a new land use alternative based on a
predefined set of community indicators, such as jobs/housing balance,
annual vehicle miles traveled (VMT) and air pollution costs.
In Lancaster County, Pennsylvania, several communities are
currently engaged in a strategic community planning process to create a
regional comprehensive plan that addresses the future of their
communities. CommunityViz, a software tool developed by the Orton
Family Foundation, allows planners, landowners, and interested citizens
to create and manipulate a virtual representation of a town, and
explore different land use scenarios and make informed decisions on
issues that affect their quality of life.
Mr. Chairman, I understand that you are interested in developing
legislation to catalogue community decisionmaking and visualization
tools and provide assistance to communities wishing to employ such
tools. Smart Growth America would welcome the opportunity to work with
you in that effort.
Second, the Federal Government should provide financial assistance
to States and localities to enable them to invest in practices and
policies that they believe are in the best economic and environmental
interest of their citizens. A tangible example of the Federal
Government's valuable role was a recent grant that the EPA provided to
the Envision Utah project, which enabled residents of the Greater
Wasatch Area to deploy state-of-the-art demographic projection and land
use mapping techniques to better plan for future growth. Using long-
range planning and visioning tools, project leaders determined that
continued sprawling, low-density development would result in a doubling
of the Greater Wasatch Area's urbanized land area. They estimated that
a smarter growth scenario featuring major investments in public transit
would save 171 square miles of open space, reduce the amount of driving
by 2.4 million miles per day, decrease commute times by 5.2 percent,
increase average speeds by 12.5 percent, and save the region $4.6
billion in infrastructure costs. Under the leadership of Governor Mike
Leavitt, the region is now pursuing the attainment of these smart
growth outcomes, which will likely include infrastructure savings for
the Federal Government as well as broad environmental benefits.
Third, the Federal Government should support smart growth
innovations that give local governments more flexibility in meeting
Federal requirements. A great example that merits replication is the
Atlantic Station development in Atlanta, Georgia, which applied smart
growth principles to meet Federal air quality standards. To be built on
the site of the old Atlantic Steelworks, this 138-acre mixed-use
transit-oriented development project had the misfortune of requiring a
small bridge to improve connectivity with the region's transit and road
network at a time when Atlanta was under a federally mandated
moratorium preventing investment in such infrastructure. The moratorium
was the result of Atlanta's lapse in Federal air quality conformity-a
necessary step to protect the public health. However, at the request of
the developer, the EPA's technical staff determined that the site's new
neighborhood would in fact reduce regional travel by 50 million miles
per year because of its excellent public transit access, walkability,
and compact street design. In addition to reduced traffic, the project
is expected to decrease air pollution and its innovative stormwater
management system will reduce the volume of polluted runoff. The
project's smart growth benefits enabled the bridge construction to go
forward and led to EPA's official guidance that allows smart growth
developments to qualify as Transportation Control Measures under the
Clean Air Act.
Fourth, the Federal Government should get its own house in order so
that its activities support States and localities in their efforts to
pursue smarter growth. The Federal Government has a major presence in
communities all across America, and its daily operations should not
interfere with State or local efforts to encourage smart growth. This
ranges from the location and design of Federal facilities, including
disposal of HUD foreclosed abandoned buildings, to offering Federal
employees a choice to receive either pre-tax parking or public transit
benefits at equal cash value. This committee has taken up the Federal
facilities issue through its interest in the Downtown Equity Act,
introduced by Senator Leahy in the 106th Congress, and which would
require Federal offices to be located in existing business districts.
We hope that it will be reintroduced and that progress is made on this
important measure.
The Federal Government's role in supporting smart growth has become
increasingly important, as rapid changes in development patterns
overwhelm State and local governments trying to keep up with rising
demands for public services, facilities and infrastructure. In
particular, several trends underscore the need for Federal action.
First, housing affordability remains a dire and persistent problem
for an astounding number of Americans. According to the congressionally
established Millennial Housing Commission, 28 million Americans do not
have access to decent, affordable housing. In 2000, the National Low-
Income Housing Coalition reported that there was not a locale in the
United States where a full-time minimum-wage earner could afford fair-
market rent for a two-bedroom apartment. According to a new paper by
Anthony Downs, Senior Fellow at the Brookings Institution, affordable
housing too often exists in either declining neighborhoods that are
geographically isolated from opportunities, or in fringe ex-urban areas
and require residents to spend a large proportion of their income on
car travel, which according to the Department of Commerce accounts for
40 percent of income for America's lowest-wage earners. Another new
report from the Brookings Institution presents the academic evidence
debunking the claim that smart growth and affordable housing are at
odds. This paper shows that good growth management policies increase
affordable housing opportunities even in communities that are in high
demand.
Second, traffic problems are stifling the economies of regions all
across America. Traffic congestion costs Americans $78 billion in lost
time and wasted fuel, and the average person spends 36 hours per year
stuck in traffic. What we once referred to as ``rush hour'' now lasts 3
hours and occurs twice a day. This hurts everyday commuters, but it is
especially harmful for low-income workers, who face the unenviable
choice between the costly ownership and operation of a car and public
transportation services that are inadequately funded to meet the
public's demands.
Third, consumer housing preferences are changing. According to a
new study published by the Fannie Mae Foundation, aging baby boomers
will constitute a growing proportion of homebuyers in the next decade,
and many of them express a preference for compact, walkable
neighborhoods over low-density conventional sprawl. The report's
authors-two professors from the University of Southern California-
estimate that between 31 and 55 percent of active homebuyers will
prefer this type of ``smart growth'' or ``New Urban'' development
during the coming decade. Unfortunately, the report's authors are
pessimistic about the ability of the market to meet this growing demand
because of the rigid finance, insurance, planning and regulatory
conventions that facilitate sprawl development to the exclusion of
other development patterns. As a result, the construction or
rehabilitation of compact, walkable communities is a commonly
unpredictable challenge, introducing the potential for expensive delays
resulting from approvals for zoning variances and neighborhood
resistance.
As a response to these trends, Americans are increasingly concerned
about urban sprawl and are seeking better choices for their
communities. In the past 5 years, large majorities of voters have
approved hundreds of measures to raise funds for open space and
farmland preservation to protect valuable recreational areas, scenic
vistas, and biologically important habitats. In 2000, the Pew Center
for Civic Journalism released a report that found runaway sprawl and
traffic congestion to be Americans' top local concern. A poll released
by Smart Growth America later that year confirmed these conclusions,
finding that large majorities of Americans are willing to support
specific smart growth measures, ranging from affordable housing
production to increased public transit funding. Even after the
tragedies of September 11, voters from New Jersey to Colorado to
California have indicated growth management to be a top local concern.
This week, a poll by the University of Toledo will report that metro
Toledans strongly support smart growth measures as well.
The bills being considered by this committee can offer better
choices to communities that are grappling with these challenges. The
Community Character Act, S. 975, and the Brownfield Site Redevelopment
Assistance Act, S. 1079, are two proposals that will help communities
respond to the impacts of rapid changes in growth patterns that have
left some communities with dwindled populations and vacant buildings,
and still others with overcrowded schools and overburdened
infrastructure. These two bills provide valuable assistance to States
and communities to address these issues in a manner that is appropriate
for the Federal Government.
The Community Character Act offers assistance to State or tribal
governments who have identified a need to develop or update land use
planning legislation, but lack the capacity to do so. Appropriately,
the Community Character Act does not impose a mandate on States to
update their land use plans. Instead, it offers State and tribal
governments financial assistance to help cover their costs of ensuring
broad public participation, researching and developing land use plans,
integrating State, regional, tribal or local plans with Federal land
use plans, and acquiring technology to support their efforts.
S. 975 will help communities create a vision for the future, while
leaving land use and development decisions to State and local
governments. In many places, part of that vision for the future will
include an effort to reinvest and encourage economic development in
existing communities. This committee has already shown great leadership
on this issue. Senator Chafee, I congratulate you and the entire
committee on the passage of the Small Business Liability and
Brownfields Revitalization Act. Smart Growth America was one of the
first organizations to endorse S. 350, and we were delighted to see
President Bush sign the final bill into law.
The Small Business Liability and Brownfields Revitalization Act
will make a tremendous contribution to brownfield redevelopment by
assisting in their clean-up and providing liability relief. However,
many of these sites are located in communities that have experienced
such widespread disinvestment that their recovery is dependent on
additional economic stimulation. The Brownfield Site Redevelopment
Assistance Act, S. 1079, complements the recently signed brownfields
law by targeting assistance toward the development of public facilities
and services, planning, training and technical assistance to help
communities overcome the burdens of brownfield sites.
Smart Growth is about providing better choices for our communities.
Across the Nation, families are demanding more convenient, affordable
and safe transportation and housing options, communities want more
tools for grappling with rapid change, and civic leaders wish to have
greater predictability in the business of development and preparations
for the future. The Federal Government has a responsibility to aide
States and localities communities by sharing information on best
practices, providing financial and technical support to help
communities respond to changing growth patterns, and to be a good
partner with State and local leaders. The Community Character Act and
the Brownfields Site Redevelopment Assistance Act both advance these
goals to improve the quality of life of all Americans. Smart Growth
America supports both of these bills and looks forward to working with
the committee to see their timely passage.
Statement of F. Gary Garczynski, President on Behalf of the National
Association of Home Builders
Chairman Jeffords and members of the Environment and Public Works
Committee, I am pleased to appear before you today to share the views
of the National Association of Home Builders concerning S. 975, the
Community Character Act of 2001. My name is Gary Garczynski and I am
the 2002 President of the National Association of Home Builders. I am a
homebuilder and developer from Woodbridge, Virginia, and much of my
business focuses on redevelopment of urban areas and the inner ring of
older suburbs. I am a past president of the Northern Virginia
Transportation Alliance and a founder of the Greater Washington Region
Smart Growth Alliance.
background
While we appreciate the efforts of this committee to address growth
issues, NAHB is opposed to the Community Character Act. This country
will continue to grow and NAHB has been working for years on how to
grow ``smart.'' An emerging issue that goes hand in hand with smart
growth is population pressure. Projections based on U.S. Census data
show that the population segment between 25 to 64, the population
segment that accounts for the most household formation, will increase
by about 1.4 million per year over the next 10 years. Although every
State will add people in this segment, the States of California,
Florida, Georgia, North Carolina, Texas and Washington will account for
half of the population growth. With the addition of approximately
800,000 immigrants per year, the number of households will increase
about 1.3 million per year for the next 10 years. To satisfy this
demand, and demand for the replacement of lost housing stock, home
builders will have to provide approximately 1.6 million new homes a
year. The option to halt future growth as a means of controlling
present frustrations is unrealistic.
In an effort to address the short-term pressures of growth, the
Community Character Act of 2001 provides funding incentives for Federal
and State agencies to work together toward implementing State land use
plans. Although the legislation acknowledges that land use planning is
within the rightful jurisdiction of the State and local governments,
there are a number of alarming elements found in the bill. There have
been some modifications to the bill from its original form in the 106th
Congress, such as the recognition of the need for a range of housing
choices in land use planning. However, S. 975, taken in its totality,
remains prescriptive and intrusive in character and for this reason
unacceptable to the home building community.
critique of s. 975
NAHB's overall concern and objection to S. 975 is based upon an
unwarranted Federal intrusion into the State and local land use
process. Further, there is insufficient emphasis on the critical and
appropriate role of local government in land use decisions. S. 975
emphasizes State land use plans, not just State support for local land
use planning. This legislation implies that all planning should take
place on a State or tribal government level, which is a top down
approach to planning, and negates the critical role of local
jurisdictions in planning, regulating and managing land resources. NAHB
believes there needs to be adequate and improved coordination with
local plans on all levels.
The Community Character Act authorizes the Secretary of Commerce,
acting through the Assistant Secretary of Commerce for Economic
Development, to create a Federal grant program to incentivize the
updating of State land use planning. The legislation presumes that the
Secretary of Commerce, and the Federal Government, has a better idea of
the source of nationwide development pressures and the best way to
solve those problems. NAHB strongly believes that local citizens and
local governments are the best arbiters for what is the appropriate
design for local land use plans. As a builder, I work on a day-to-day
basis with local and State officials and community groups to plan
development in a responsible and thoughtful manner.
Section 4(a)(3) of the Community Character Act authorizes the
Secretary of Commerce to give preference to a State that has
``inadequate or outmoded land use planning legislation'' and ``is
experiencing significant growth.'' Unfortunately, the Secretary is
authorized to make a subjective judgment in an area where the Secretary
can claim no special expertise. In an effort to award these grants, the
Secretary would presumably establish a Federal definition of what
constitutes ``inadequate or outmoded land use planning legislation'' or
a Federal definition for ``significant growth'' and somehow apply those
Federal definitions to State and local situations. The Secretary of
Commerce can claim no particular expertise in the determination of
``significant growth'' when comparing two or more areas of the country.
Additionally, under Section 4(a)(3), the Secretary is required by
the legislation to give favor to a State that will develop or revise
their land use plan ``consistent with updated land use planning
legislation.'' I am fearful that this language authorizes the Federal
Government to develop ``updated land use planning legislation.'' Or
perhaps the Secretary is authorized to endorse a particular State's
land use legislation as guidance. Authorizing the Secretary to use a
particularly proactive State's land use legislation as a standard that
embodies the concept of ``updated'' could lead to the Federal
endorsement of some land use plans that are both onerous and an ill-fit
for other States. But, because of the allure of Federal money, States
might be inclined to overlook the negative aspects of these onerous
plans.
NAHB is pleased that S. 975 recognizes the need for a ``range of
affordable housing options'' in any smart growth plan (Section
4(b)(1)(F)). Certainly, housing affordability should be one of the
goals of any local government. As we have seen in many areas of the
country, economic prosperity and job creation are often not accompanied
by affordable housing opportunities. Without the availability of
decent, affordable housing and the ability for citizens to live where
they work, citizens are forced into longer commuting times and longer
distances from goods and services.
Of particular concern to NAHB is the condition of grant eligibility
found in Section 4(b)(6). Under this section, the Secretary of Commerce
is required to favor grant applicants which include ``approaches to
land use planning that are consistent with established professional
land use planning standards.'' Simply, this provision uses Federal
dollars to incentivize State legislatures to adopt professional
planning standards. While there are certainly many differing
professional planning standards, given the very recent release of the
American Planning Association's Growing Smart Legislative Guidebook, S.
975 appears to facilitate the adoption of the model statutes contained
in the Legislative Guidebook. NAHB cannot support legislation that
could be construed to impose a Federal model for land use planning on
local governments. NAHB believes that the best way to promote
``community character'' is to let the community determine its own land
use policies.
Another point of concern is the use of grant funds in the
legislation. Specifically, Section 4(c)(1)(D) authorizes grant funding
for the use of integrating ``State, regional, tribal, or local land use
plans with Federal land use plans.'' This top-down approach that is
promoted by S. 975 concerns NAHB. If land use planning is ``rightfully
within the jurisdiction of State, tribal, and local government,'' as
Section 2(2) of the legislation states, the Federal Government should
be integrating with State and local plans, not the other way around as
encouraged by the legislation.
The legislation raises potential constitutional questions under the
Tenth Amendment, where powers not expressly granted to the Federal
Government in the Constitution--like zoning and land use decisions--are
reserved to the States and local governments. Just over a year ago, in
Solid Waste Agency of Northern Cook County v. U.S. Army Corps of
Engineers, 531 U.S. 159 (2001) (``SWANCC''), the Supreme Court demanded
``heightened'' scrutiny when statutes and regulations ``alter[] the
Federal-State framework by permitting Federal encroachment upon a
traditional State power.'' In this regard, the Court ruled:
``Regulation of land use [is] a function traditionally performed by
local governments.'' By creating prescriptive criteria by which Federal
grant money is awarded for State land use planning, the Community
Character Act has the potential to upset the Federal-State balance that
the Court cautioned against in SWANCC.
Finally, Section 5 of the bill authorizes $1 million a year for
Economic Development Administration Technical Assistance. While the
intent of Section 5 may be no more than the establishment of a
Department of Commerce clearinghouse for planning ideas, the authority
granted under this section underscores the Federal Government's
opportunity to influence local planning decisions. Under Section 5, the
Secretary of Commerce is authorized to provide technical assistance to
planning officials after consultation with a myriad of Federal
agencies: The Environmental Protection Agency; the Department of
Transportation; the Department of Agriculture and any of the other
Federal agencies. Finally, the Secretary of Commerce is expected to
consult with ``non profit organizations that promote land use
planning.'' While there are many organizations who would qualify in
this later category, it is logical to assume that the American Planning
Association and the Legislative Guidebook could be the primary
providers of the technical assistance and the information sharing
promoted by the Commerce Department. Again, the Federal Government
should not be in the business of promoting local land use planning.
conclusion
The Community Character Act is an unnecessary interference by the
Federal Government in traditionally and constitutionally protected
rights of local governments. By offering Federal dollars to State
legislators who have concerns about the increasing pressures of growth,
the Community Character Act rewards States for solving problems in the
manner the Federal Government would like it solved. This legislation
implies that Washington knows best when is comes to controlling
development pressures.
Rather than authorizing money to promote the Federalizing of the
local land use process, I believe the government is best served by
using its money to coordinate its own various land use authorities and
the government's often contradicting policies. Simply, local planners
would be better served by the streamlining or improved cross-department
coordination of the Federal requirements and processes that contribute
to the local and State land use plans. Our industry has struggled over
the years with a myriad of overlapping regulations that inhibit
responsible development.
Mr. Chairman, last year members of this committee, led by Senator
Lincoln Chafee, spearheaded the passage and eventual enactment of
Federal brownfields legislation. While NAHB maintains that the
brownfields legislation could have gone further to truly address the
entire universe of brownfields sites in this country, the legislation
was a good first step in returning brownfields sites to productive use.
In fact, NAHB's national smart growth policy recognizes the importance
of brownfields redevelopment in the concept of smart growth.
I believe the new brownfields law represents the best avenue for
future Federal involvement in local planning. By removing the barriers
to the cleanup and redevelopment of brownfields, the Federal Government
has given local governments another tool to effectively plan for and
manage growth. I truly believe the best way for the Federal Government
to aid in the management of growth is to reform Federal laws which
inhibit local communities from using all of their growth management
tools and let local communities plan the best education,
transportation, housing plan that reflects their unique needs.
Additionally, Senator Levin's bill, S. 1079, the Brownfield Site
Redevelopment Assistance Act of 2001, may further the ability of local
communities to redevelop brownfield sites and return them to productive
use. Grants provided under S. 1079 have the potential to complement the
U.S. Environmental Protection Agency brownfields grant program recently
enacted in the new brownfields law. However, I am concerned that grants
under this program can be used for local planning and the criteria for
awarding of those grants are subject to Federal interpretation and
therefor open to Federal preferences for growth management.
Further, NAHB supports H.R. 2941, the Brownfields Redevelopment
Enhancement Act of 2001. This legislation, sponsored by Representative
Gary Miller of California and Representative Carolyn Maloney of New
York, removes Federal barriers to brownfields redevelopment funds. The
bill would eliminate the current requirement for local communities to
leverage Department of Housing and Urban Development (HUD) brownfields
grants with Community Development Block Grants (CDBG) funds. This
requirement has served to stall brownfields redevelopment because
communities are reluctant to tie up these critical funds. H.R. 2941
will provide local communities with greater flexibility without Federal
prescriptions.
Another example of ``smart growth'' is looking at Federal
initiatives that target population needs and help revitalize and
redevelop communities. In the coming months, Senators Kerry and
Santorum plan to introduce a homeownership tax credit that provides tax
credits for the development or substantial redevelopment of homes for
low to moderate-income buyers in census tracts with median incomes up
to eighty percent of the State median. This tax credit illustrates a
positive Federal role for the encouragement of smart growth.
Mr. Chairman, thank you for this opportunity to share the views of
the National Association of Home Builders on this important issue. I
look forward to any questions you of the members of the committee may
have.
______
Responses of Gary Garczynski to Additional Questions from
Senator Jeffords
Question 1. A study in the current issue of Fannie Mae Foundation's
Housing Policy Debate found that home buyers aged 45 and older, who
prefer denser, more compact housing alternatives, will account for a
third of total homeownership growth over the next 10 years. That is
double the same segment's market share in the 1990's. Demographics are
rewriting the assertion that people prefer single family, detached lots
in the suburbs. How do you propose we meet the preferences of these
consumers?
Response. While NAHB survey data has shown that a vast majority of
Americans still prefer single-family homes located in the suburbs,
there does seem to be an increase in demand for high-density
development. In fact, NAHB and U.S. Census data shows an increase over
the last decade in the number of housing units, both single- and multi-
family, built in city centers. As demand for high-density development
increases, NAHB will continue to meet that demand as it has in the
past: by working with local, State and Federal partners to provide
opportunities and incentives for homeowners. Government must continue
to provide efficient, modern infrastructure, effective crime
prevention, quality school systems and homebuyer incentives as a means
of keeping interest high and costs low.
Two good examples of the effectiveness of this
homebuildergovernment partnership are the Building a Million Homes in
America's Cities initiative and the recent enactment of the Federal
brownfields law. In 1999, NAHB partnered with the Department of Housing
and Urban Development (HUD) and the U.S. Conference of Mayors to
construct one million homes in the nation's cities and inner-ring
suburbs over the next 10 years. This effort will help curb urban sprawl
as well as aid in the revitalization of America's cities. Further, NAHB
has supported brownfields redevelopment as a means of turning
unproductive former industrial land into viable economic opportunities.
The new law will remove the threat of liability, provide funding for
clean-ups and encourage private investment in the redevelopment of
these sites.
The home building industry has been answering home buyers' and
renters' demand and preferences for housing for as long as the industry
has existed. The home building industry will respond to the location
preferences of the next group of homebuyers and renters, just as it has
in the past. Challenges will continue to exist wherever the next
development is located. Infill development will present a different set
of the challenges to the home builder. Home builders and local
governments will have to work together to respond to consumer
preferences for denser, more compact housing alternatives within the
current housing patterns and zoning permissions. In many places, voters
and their elected representatives will have to change existing land use
rules before the building industry can respond to buyers and renters.
As we move forward from this time and preferences continue to
change, home builders will continue to provide a range of safe, decent,
affordable housing for all Americans where ever they choose to live.
Question 2. I understand that the National Association of Home
Builders supports the Administration's proposal to increase
homeownership in targeted neighborhoods by providing developers with
tax credits to cover the difference between construction costs and land
values in distressed neighborhoods. I would assert that this proposal
is no different--and in fact may be more intrusive--than what is being
contemplated at today's hearing. Please explain your interpretation of
the difference.
Response. NAHB supports the Bush Administration's home buyer tax
credit as a means of addressing home ownership in distressed areas and
for households that would otherwise be unable to afford a home. NAHB
also supports rational, local land planning in order to anticipate
future housing and other development needs.
The Bush Administration's ``Renewing the Dream'' tax credit
proposal provides an enhancement for the housing industry by providing
the necessary infusion of capital to provide greater homeownership
opportunities for minorities. While there are certain income and
geographic eligibility requirements, the Federal Government is not
mandating that a particular type of housing be built in a particular
location. The tax credit is an incentive to builders who willingly
comply with the program's requirements. Simply, without this type of
program, homes cannot be built in these locations because of the
increased cost to developers. Further, the program complements the
concept of ``smart growth'' by providing an incentive to revitalize
older neighborhoods. By utilizing an existing model of housing support,
the Low-Income Housing Tax Credit, the Administration's proposal limits
the need for additional Federal bureaucracy and complex administration.
In contrast to the ``Renewing the Dream'' tax credit, the Community
Character Act rewards States for solving growth problems in the manner
the Federal Government would like it solved. While the proposed tax
credit provides an incentive to build affordable housing in
economically disadvantaged areas, the Community Character Act creates
an additional and unnecessary layer of bureaucracy. The Community
Character Act does not provide an incentive for States to simply update
their planning statutes, but rather makes Federal planning preferences
a condition of Federal aid.
Statement of Mary Lou Bentley, Executive Director, Western Nevada
Development District, on Behalf of the National Association of
Development Organizations
Thank you, Mr. Chairman and members of the committee, for the
opportunity to testify today on behalf of the National Association of
Development Organizations (NADO) on the EDA Brownfield Site
Redevelopment Assistance Act of 2001.
My name is Mary Lou Bentley and I am the Executive Director of the
Western Nevada Development District, which is headquartered in Carson
City and serves a seven-county region in Northwest Nevada. Incorporated
in 1983, the organization is a designated and funded Economic
Development District recognized by the US Economic Development
Administration (EDA). As a locally controlled entity, the Western
Nevada Development District is governed by a policy board consisting of
county and city elected officials, business leaders and citizen
representatives.
The National Association of Development Organizations (NADO)
provides training, information and representation for regional
development organizations serving the 82 million people living in small
metropolitan and rural America. Founded in 1967 as a public interest
group, NADO and its members are part of the intergovernmental
partnership among Federal, State and local governments. Through its
research foundation, NADO also provides research, education and
training opportunities for community, economic and rural development
practitioners and policymakers.
NADO's general members--known variously as councils of government,
economic development districts, planning and development districts,
regional planning commissions and regional councils--provide valuable
professional and technical assistance to over 1,800 counties and 15,000
small cities and towns, many of which have little or no professional
staff.
Members of NADO also deliver a myriad of Federal and State programs
on a regional basis. Depending on local need, a regional development
organization may administer and deliver aging, community and economic
development, emergency management, environment, housing, small business
development finance, transportation and work force development
programs.
Another important function of the 325 regional development
organizations who are designated by EDA as Economic Development
Districts is to bring local communities together on a regional basis to
develop Comprehensive Economic Development Strategies (CEDS). With EDA
planning grant assistance, each regional organization formulates
programs and strategies to create and retain quality jobs as well as
build local institutional capacity in distressed areas.
Mr. Chairman, we strongly support the goals and intent of the EDA
brownfields redevelopment legislation for three main reasons.
First, Mr. Chairman, the proposed EDA brownfields redevelopment
program would significantly strengthen the current portfolio of Federal
brownfields programs. While the Environment Protection Agency has an
exceptionally effective and important brownfields program, it is
targeted almost exclusively toward helping communities assess and
cleanup brownfields. The EDA program would establish a unique and
flexible set of tools to help local governments, regional development
organizations and nonprofits redevelop and transform former brownfields
sites into productive facilities.
As highlighted in two recent reports by the NADO Research
Foundation, there have been a number of impediments historically to
successful brownfields work in small metropolitan and rural areas.
These include a lack of local professional staff expertise and time,
limited project implementation funds, liability concerns and property
ownership issues. In addition, redevelopment activities are very
costly, with a typical project costing over $5 million. [Source:
Reclaiming Rural America's Brownfields: Alternatives to Abandoned
Property. NADO Research Foundation, April 2001.]
While the recently enacted EPA brownfields legislation aggressively
addresses many of these impediments, such as liability concerns and
funding for assessment and cleanup, there is still a significant void
in funding for redevelopment activities, including planning and
technical assistance. The proposed program would not only place a
priority on brownfields redevelopment within EDA, but also raise
awareness in local communities about the hundreds of thousands of sites
scattered around the country.
More importantly, the creation of the EDA program would reinforce
the concept that local organizations have options beyond cleaning up
sites to preserve green space and curb sprawl. Local communities could
now pursue strategies for taking previously productive industrial and
commercial facilities and returning them to viable economic centers.
This represents the best of both worlds: creating jobs and increasing
local revenue, while also raising community pride and environmental
awareness, promoting positive land use, and encouraging reinvestments
in older areas. Sites that once marred the landscape could be put back
into productive use for the public and private sectors.
In studying existing brownfields efforts, the NADO Research
Foundation found a host of good examples and best practices around the
Nation. In Vermont, for example, local elected officials and community
leaders within the area covered by the Southern Windsor County Regional
Planning Commission teamed together to address six brownfields sites,
including a former Goodyear plant and machine shop. Today, the adaptive
reuse of the site is providing quality jobs and tax revenue to the
community.
Located on a narrow strip of land between the Chesapeake Bay and
the Atlantic Ocean, the town of Cape Charles and Northhampton County in
Virginia also proved that redevelopment is possible, even in highly
distressed areas. With assistance from EDA and others, the community
now has the nation's first eco-industrial park, which features
manufacturing space, conference facilities, restored wetlands, a nature
trail, environmental education facility and a tertiary sewage treatment
system. It even uses solar panels to cut energy costs.
Second, Mr. Chairman, the proposed EDA brownfields program would
help regional development organizations and local governments
incorporate redevelopment efforts into their comprehensive economic
development strategies.
Acknowledging the presence of brownfields in a particular area is
an important first step to considering redevelopment. Many
organizations that are currently involved in brownfields work initially
failed to recognize they had brownfields, but instead knew they had
land that was abandoned and potentially contaminated. In many cases,
this awareness coincided with the stark reality that land for
development was unavailable. At this point, their sights often turn to
vacant, abandoned pieces of land.
Along the shoreline of Lake Michigan, for example, the West
Michigan Shoreline Regional Development Commission (RDC) is assisting
120 cities and towns and five counties in economic development
activities including redeveloping brownfields sites. The West Michigan
Shoreline RDC annually asks local governments to submit projects for
its Comprehensive Economic Development Strategy. The suggested projects
are then prioritized and sorted into EDA's main project categories.
Within the region, both the city and county of Muskegon are
recognized as leaders in taking a proactive role in brownfields
redevelopment. The city has established a Brownfields Redevelopment
Authority to promote the revitalization of environmentally distressed
properties within the city, while the county is transforming former
foundries into recreational parks, industrial parks, shopping centers,
restaurants and housing. The regional organization plays the key role
of coordinator, making sure that the various levels of government are
communicating and sharing information.
Currently, EDA provides seed funding for local communities,
predominantly through the national network of 325 Economic Development
Districts, to prepare comprehensive strategies that:
<bullet> promote economic development opportunities;
<bullet> foster effective transportation access;
<bullet> enhance and protect the environment; and
<bullet> balance resources through sound management of
development.
While brownfields redevelopment and revitalization is consistent
with the overall goal of the planning process, most small metropolitan
and rural communities have been either reluctant to tackle the issue or
were unaware of potential Federal assistance programs. Another major
problem is the decline in the true purchasing power of the EDA planning
grant program, making it difficult for most regions to add another
element to the process.
While still an incredibly valuable and essential program for
regions, the average district planning grant is currently about
$54,000, the same average as in 1966. Adjusted for inflation, the value
of a 2002 grant is less than $10,800 or 20 cents on the dollar. For
districts to continue building on their successful track records, they
need a well-deserved funding increase to remain on the cutting edge,
informed and well versed in the latest planning issues.
We believe the legislation takes the right approach by providing
supplemental planning assistance and calling for more coordination of
brownfields redevelopment within the context of the existing strategy
development process. It is also noteworthy that legislation
specifically requires the Secretary of Commerce to be involved in
coordinating efforts with other Federal agencies, State and local
officials, Indian tribes and nonprofit organizations.
Brownfields redevelopment activities are complex, costly and time
intensive, therefore, coordination is a major key to success. This
includes dialog and partnerships among the various Federal agencies, as
well as at the local level between local governments, nonprofits, the
private sector and the public. It also involves open communications
among the various levels of government.
Third, Mr. Chairman, the proposed legislation would allow EDA to
continue its successful brownfields redevelopment work without
depleting its resources for other equally important initiatives. Since
1997, EDA has invested more than $250 million in more than 250
brownfield redevelopment projects nationwide. However, there is little
assurance currently that the agency can sustain this level of
investment, especially within the existing appropriations and
authorization caps.
By establishing a specific program for brownfields redevelopment,
the agency would be given the stability and sustainability required to
meet the growing needs. According to the US Conference of Mayors, the
redevelopment of brownfields could generate more than 550,000
additional jobs and up to $2.4 billion in new tax revenue for major
cities. This number is even greater when you add the hundreds of
thousands of brownfield sites in small metropolitan and rural areas. A
1999 survey of regional development organizations found that millions
of dollars could be generated annually through local taxes on
redeveloped brownfields property.
In addition, the program is needed to help ensure that rural areas
have an opportunity to obtain implementation, technical assistance and
planning funds for brownfields activities. Within both the current EPA
and EDA programs the limited budgets almost force the agencies to
select high profile projects in major urban areas. This frustration
with the lack of resources for less populated regions was constantly
mentioned during the NADO Research Foundation studies.
By separating the program, the agency would also be better
positioned to assist distressed communities with their other pressing
needs, whether it is recovering from a natural disaster, responding to
a plant closing or expanding existing businesses. While many of the
nation's urban and suburban areas have enjoyed economic prosperity in
recent years, there are still hundreds of small communities struggling
to enter or re-enter the economic mainstream. Often times, EDA is the
only Federal agency that can help these distressed rural and small
metropolitan communities.
Over the past 35 years, Mr. Chairman, EDA has developed a
successful track record in partnering with local communities--including
regional development organizations--to revitalize, upgrade and expand
former commercial sites into industrial facilities that help create
quality jobs, expand the local tax base and improve the quality of life
in the area. This includes making the necessary investments in
infrastructure, as well as providing often overlooked planning and
technical assistance.
In conclusion, we strongly believe that the expanded brownfields
redevelopment program would be a valuable addition to the EDA toolbox.
The legislation would significantly strengthen the current portfolio of
Federal brownfields programs. It would help regional development
organizations and their partners incorporate brownfields redevelopment
efforts into their comprehensive economic development strategies. And,
it would allow EDA to continue its brownfields work without depleting
resources for its other job creation programs.
Mr. Chairman and members of the committee, thank you for the
opportunity to testify today on behalf of NADO and I would welcome any
questions.
__________
Statement of the National Association of Realtors()
introduction
Thank you for the opportunity to submit for the record the National
Association of Realtors'() comments on S. 975, the Community Character
Act; S. 1079, the Brownfield Site Redevelopment Act; and EPA Smart
Growth Initiatives.
Land development and growth, and planning for this growth, is an
issue facing many of our communities. We believe growth should be
encouraged as it is a stimulus to the economy, increases the tax base,
provides places to live and work, and offers opportunities that would
not otherwise exist. We also realize the responsibility Realtors()
have to educate and work with local, State, and Federal Government
officials in developing responsible growth planning that is equitable
and which considers the divergent needs of transportation, housing,
agriculture, commercial, industrial, and environmental concerns.
In considering the issue of Smart Growth, the National Association
of Realtors() identified five principles that we believe must be
addressed in any Smart Growth policies:
1. Provide Housing Opportunity and Choice.--Despite the housing
market's strength in recent years, and the achievement of an all-time-
high 68 percent homeownership rate, both the supply of and the demand
for affordable housing--in both the rental and sales markets, and in
both existing homes and new development--remains a serious issue in
communities throughout the Nation. Smart growth policies must foster a
wide range of housing choices at all price levels to suit a diverse
population. These objectives will have to be met primarily through
market-driven approaches.
2. Build Better Communities.--Livable communities offer a variety
of affordable housing choices in an environment with good schools, low
crime, efficient transportation systems, ample recreation and park
facilities, open space, a strong employment base, and an economically
viable commercial real estate sector.
3. Protect the Environment.--Governments at all levels should
consider policies and program that aid the control of pollution;
provide for programs that encourage preservation of natural resources,
significant land and properties of historic significance, and further
encourage, through incentives, the protection of aquifers, rivers and
streams, agricultural lands, wetlands, scenic vistas, natural areas,
and open space. In adopting environmental protection policies, the
Federal Government must recognize the importance of local
decisionmaking.
4. Protect Private Property Rights.--Land use policies at all
levels of government must recognize the importance of private property
rights. Private property rights are fundamental to our free-market
economic system and are protected by the 5th and 14th Amendments to the
United States Constitution. The continued strength of our nation's
economy depends on the preservation of the right to freely own, use and
transfer real property.
5. Implement Fair and Reasonable Public Sector Fiscal Measures.--To
support adequately the infrastructure needs of communities resulting
from growth, governments at all levels should cooperate in the adoption
of balanced, fair, equitable and incentive-based approaches to finance
and pay for the development, expansion and maintenance of roads,
schools, water and sewer facilities. Revenue and financing mechanisms
established to pay for necessary infrastructure costs should be shared
proportionately by those segments of the population that are served by
the improvements.
s. 975, community character act
The National Association of Realtors supports the Community
Character Act, which would provide grants to States for land use
planning. NAR supports this bill because the bill:
<bullet> Recognizes that land use planning is rightfully a State
and local government function;
<bullet> Provides needed assistance to States and localities to
better plan for inevitable growth;
<bullet> Requires that planning performed under this Act must
provide for housing opportunity and choice and ``provide for a range of
affordable housing options;''
<bullet> Promotes improved quality of life, sustainable economic
development, and protection of the environment
Additionally, we support the following specific elements of S. 975:
<bullet> The inclusion of education as an eligible use of the funds
(Sec. 4(c)). We believe there is a need for citizens and policymakers
to become more educated about infrastructure needs; about how growth
policies affect the ability of the private market to provide affordable
housing; and about the need for higher density development in
appropriate places.
<bullet> The provisions for Pilot Projects for Local Governments
(Sec. 4(d)), which would increase the capacity of local governments to
plan for their futures.
<bullet> The use of these funds for improved technology and
development of electronic data bases to support land use planning (as
suggested in Sec. 5(b)).
We would like to stress that there is no ``one-size-fits-all''
approach to land use planning or State planning statutes. Professional
planners, planning commissioners, elected officials, and citizens
should study a wide variety of land use planning approaches before
deciding what is best for their State or local community. Land use
planning should remain a State and local government function, and
neither the Federal Government nor any particular professional
organization should impose its version of planning statutes on the
States. We support the Community Character Act with the understanding
that nothing in the Act would oblige a State to adopt any particular
approach to land use planning or regulation.
s. 1079, brownfield site redevelopment assistance act of 2001
NAR has been committed to brownfields reform for many years, and
enactment of such legislation is our top environmental priority in the
107th Congress. We were strong advocates of the Small Business
Liability Relief and Brownfields Revitalization Act, which was recently
passed by Congress and signed into law by President Bush. By addressing
brownfields liability and funding concerns, this new legislation
provides the certainty necessary for the real estate industry to move
forward and undertake redevelopment of brownfields sites throughout the
country. Through a reinvigorated cooperative effort between government
and private business interests, EPA's Brownfields Economic
Redevelopment Initiative will successfully promote brownfields
redevelopment for years to come.
In that same spirit, NAR supports S. 1079, the Brownfield Site
Redevelopment Assistance Act. In accordance with its mission, the
Economic Development Administration (EDA) works in partnership with
State and local governments to help economically distressed communities
attract private capital investment and create employment opportunities.
EDA's support of brownfields redevelopment is an important complement
to EPA's program. By providing grants to redevelop brownfields sites
and put them to new and productive uses, S. 1079 will provide a cleaner
and safer environment, increase the tax base and create jobs.
epa smart growth initiatives
We are pleased to be a partner with the U.S. Environmental
Protection Agency in the Smart Growth Network. We support the two Smart
Growth initiatives recently announced by the EPA Administrator,
Governor Whitman: an EPA National Award for Smart Growth Achievement to
recognize and publicize exemplary development; and a program to help
local planners better integrate brownfields redevelopment and open
space preservation through grants and technical assistance.
Thank you for the opportunity to express our views.
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