State Mandated Land Use Policies -- an analysis of effects on growth

Population growth has been and generally remains a local problem in the United States. People continue to move to cities that were originally designed for a much smaller population, and that were once ringed by agriculture and wilderness, land that is now being converted to urban uses. This is the crux of land use regulation in the US; it is largely an attempt to maintain the integrity and character of a place while accommodating ever-greater numbers of individuals. Local growth is driven by economic opportunity in the US, this has been true since the nation's founding.

This is a case study of land use policies in the two northwestern most states of the US. Both Oregon and Washington have a history of extractive industry followed by a post World War II economy that has been more and more focused on technology, and both states are home to a vast array of ecosystems with endemic species that are outstandingly beautiful. Both of these state's governments have implemented land use controls that were aimed at limiting the destruction of their environment. This reflect in part that the economy is no longer dependent on such destruction and is now home to a majority that are generally adverse to it. These two states' land use rules are an interesting case because they outline the tension often represented in the US between extractive economies, tourism, agricultural and resident interests, and the growth lobby that crosses the lines of the former two. It is also interesting to note that these states represent the paradox of suburbia, whereby individuals who move "away from" soon find themselves "surrounded by" urban environments. Each of the states' land use policies will be covered independently followed by an analysis of the effectiveness of regulating land use by state mandate rather than local ordinance.

Oregon

The state of Oregon was largely settled in the second half of the 19th century by US migrants from the eastern states. Indigenous nations were moved to reservations, often forcibly, by state and federal militias in order to open more land up for American settlers.¹ Most of the settlers began farming in the Willamette Valley , some settled on the coast. The eastern dry portion of the state is still sparsely developed. Logging and mining began to be widely practiced in Oregon, and the city of Portland grew to be a major exporter of raw goods from the area, and the major metropolitan area in the Northwestern US.² In post World War II America the population of the state began to grow much the way everywhere else did due to federal underwriting of housing costs. The growth of development in Oregon came in spurts from a series of booms in local job growth, often in traditional industries such as logging and mining.³ This led to clear cutting of forests and horrible river pollution. These traditional industries were counterproductive to the tourism industry that was thriving in Oregon during this same time period leading to a set of polarized interests between agriculturalists, tourism profiteers, and industrial/development interests.⁴

In the 1950's and 1960's a number of infrastructure improvement projects were carried out via federal funding.⁵ Oregon already had a number of dams, bridges, and other improvements from Depression Era New Deal projects.⁶ Federal funding was made available for more even larger dams to generate electricity.⁷ There was also a flood of funding made available to the public through the federal GI bills that allowed many individuals to settle where they wished and attend college. This led to major expansion in all of Oregon's universities.⁸

In the 1960's the state of Oregon passed a number of progressive environmental laws.⁹ In 1965 the state passed a law that disallowed discharge into any body of water without a permit, thus allowing for sweeping changes in ongoing water pollution.¹⁰ The state also passed a law that issued bonds for pollution cleanup based on a percentage of the value of the state itself.11 Oregon passed laws providing bicycle lanes on highways, paying money for bottle returns, declaring beaches as public property, and getting rid of billboards.¹² These laws gave Oregon a reputation as an "environmental model" in the words of once Governor Tom McCall.¹³ These laws were widely supportive of Oregon's image as a pristine natural area, which helped tourism flourish.

In 1963 the first land use legislation was introduced in Oregon.¹⁴ It allowed the creation of county planning commissions, outlined the composition and powers of such commissions, allowed counties to make zoning ordinances regardless of the existence of a plan or planning commission, and set aside special provisions for "farm use" zoning to protect farmland from being used for most other purpose if it was so zoned.¹⁵ This change to the state code was updated in 1967 and 1969.¹⁶ With each update planning districts were further defined, as were the powers of planning commissions, and the various concerns around changes to zoning ordinances.¹⁷ The changes in 1969 came from the passage of Senate Bill 10 that largely declared that land was to be zoned especially in the Willamette Valley where farmers dislike of housing encroaching on prime farmland was growing.¹⁸

The interests of housing developers came sharply in contrast to those of preservationists in the period of 1971 to 1973.¹⁹ Two individuals in the Oregon state government did more than anyone else to really push through legislation to make " environmentally friendly and protect farmland in the Willamette Valley.²⁰ Tom McCall was governor of Oregon, and he declared in 1971 that housing development was a threat to the state, and that he was going to do something about it.²¹ He had been elected following his journalistic expose of river pollution in Oregon.²² The other individual was Hector Macpherson, a man who had worked to create a planning commission in a rural Oregon county as early as 1963 and then had moved on up to state senate with a mission of farmland preservation.²³

The 1971 state legislature created the Oregon Coastal Conservation and Development Commission.²⁴ This was a state body that was given the charge of overseeing the coordination of planning for all of coastal Oregon.²⁵ The commission was regularly swayed toward the local interests of the coastal communities, especially the economic interests, but was also subject to review by the state legislature.²⁶ Macpherson was elected to state senate in 1971 and began an almost independent effort to bring land-use issues to the fore in order to change the planning law when it came up for review in 1973.²⁷ In 1971 he met and became allied with Robert Logan, Administrator of the Local Government Relations Division. Logan supplied Macpherson with the staff and support he needed and helped him craft and bring " planning legislation forward.²⁸ Macpherson set up a couple of volunteer committees to create ideas for legislation, and by the middle of 1972 had the ideas in hand that he would promote as the Oregon " Planning Package.²⁹ There were a number of underlying issues at the time including misleading land salesmen, sprawling coastal developments, and other developments in the Willamette Valley that were unsightly and threatening to farming interests.³⁰

Late in 1972 Macpherson, Logan, and their groups came forward with what would become Senate Bill 100, a land-use law that required all of the state of Oregon to have comprehensive zoning.³¹ The zoning would be overseen at the state level, and the state would be divided into districts in order to make sure there was conformity.³² The bill also called for a new state department, the Department of Land Conservation and Development, which would develop statewide " goals.³³ The group also came forward with a few other bills such as SB 101 which restructured tax clauses that favored continued farming of land, and SB 487 requiring cities to review subdivision permit requests and have subdivision ordinances.³⁴ HB 2607 was also part of the Land-Use Package; it required that persons selling land for development disclose honestly what infrastructure and amenities were available to the new homebuyers.³⁵

Senate Bill 100 was fiercely fought by a number of interests for various reasons.³⁶ People largely objected to it because they felt it removed the "home rule" that local governments widely enjoyed.³⁷ There were also concerns that it would create yet another review process for business interests to go through.³⁸ Multiple compromises were made through the course of bill passage.³⁹ Instead of dividing the state up into regions that would be responsible for reporting to the state, counties were given this responsibility, Portland was given county status, and the reporting was to be made to the newly created Department of Conservation and Development.⁴⁰ The bill was also amended to remove language about areas of special concern to the state for preservation, instead counties were charged with determining such areas on their own special areas to preserve.⁴¹ Finally the bill incorporated language that gave 90 days of public input into " legislation to balance out the centralization of " coordination from the state government.⁴²

The other state bills were passed with much less controversy.⁴³ HB 2607 was basically a direct response to ongoing land speculation that was duplicitous in its marketing and widespread across eastern Oregon specifically.⁴⁴ SB 101 was an amendment to a tax law that was already in place.⁴⁵ The current law, however, led to urbanization of farmland due to the loose rules about tax breaks.⁴⁶ The change made in SB 101 was to penalize people who subdivided farmland by charging them back taxes on the property at its new residential value for up to 10 years.⁴⁷ This worked to reverse the process of farmland conversion to urban uses. SB 487 basically required that someone review subdivision developments statewide before they occurred.⁴⁸ This helped keep subdivisions in unincorporated areas that didn't match the surrounding area from occurring.

The Land Conservation and Development Commission (LCDC) was appointed by the Governor in 1973 in order to carry out the provisions of SB 100.⁴⁹ The LCDC was composed of people who had been heavily involved in the process of consensus in regard to the bill's passage, and so were intimately aware of what the public wanted and didn't want.⁵⁰ The LCDC was commissioned in part to determine what the Land-Use Goals for the state were to be, with plenty of public input into the goals themselves.

The Land-Use Goals arrived at and adopted late in 1974 by the LCDC were:

Creation of a comprehensive program for citizen involvement in the land-use planning process, establishment of a complete land use planning process, protection of agricultural lands, conservation of forest lands, conservation of open spaces and natural and scenic resources, maintain and improve the air, water, and land resources of the state, protect life and property from natural disasters, satisfy the recreational needs of the citizens, diversify and improve the economy of the state, to provide housing for the needs of the citizens of the state, to plan and develop public services as necessary, to provide a safe transportation system, to conserve energy, to provide for a consistent and meaningful transition from urban to rural uses including establishment of urban growth boundaries (UGB's)." (My italics)⁵¹

Of the goals outlined above the urban growth boundary, and the conservation aspects were the most controversial and generally functioned together to carry out land use planning in Oregon. Each of these more controversial sections has been updated several times.⁵² The establishment of UGB's on a statewide level is still unprecedented elsewhere in the US, although they are becoming more common in local government plans around the country. The conservation of forest and field is also becoming increasingly popular across the nation with the rise of land trusts and Transfer of Development Rights programs being the major forces behind such conservation. In traditionally agricultural communities such language is actually common due to the sentiment of the citizen majority.

These portions of the goals were updated between thirteen and nineteen years later. The urban to rural transition portion was updated in 1988, 2000, and 2005.⁵³ The 1975 goals for Rural to Urban Transition stated that plans should take into account the population projection for the area in 2000, note the growth policy for the area, carrying capacity for the area, and open space needs.54 Carrying capacity is further defined as air, water, and land resources in the planning area. Oregon is one of very few legislative bodies that recognize carrying capacity in this sense. This is, however, the only mention in the land use legislation of limits to growth. The goals enlist weak controls for growth, however, tax increases, capital improvements, multiple and joint use policies, and fee acquisition are all included. It is generally assumed that the UGB's will define the capacity. The 1988 change to the rural to urban portion of the goals states that the land that composes the boundary between the urban and rural areas is "urbanizable" and that the UGB size should consider the projected population growth in its determined area. It also states that designated urban areas should be developed first. The 2000 change to the rural to urban designation included new criterion for determining where the UGB should be placed including an assessment of energy and social ramifications, and special designations for particular types of agriculture as well as a requirement that development be compatible with agricultural uses. The goal change also included one single family dwelling on a lot from UGB constraints, so long as the area was zoned residential. The 2005 changes include provisions for counties to allow industrial uses beyond the UGB, and require that the UGB reflect a 20-year population forecast. The changes to the goals also include language that counties should not change their UGB's unless they can demonstrate that the urban and urbanizable areas have been fully developed.

Oregon is unique and an especially interesting case because there is a state mandate that all incorporated areas must have a UGB. In order to change the UGB the city must collaborate with county and regional governmental organizations, this makes it a potentially difficult yet positively collaborative process. The tools that cities are given have the potential to help alleviate debt-inducing growth. The ultimate choice of whether or not to grow is of course up to the cities and counties themselves. The UGB has the potential to determine carrying capacity, and it must be present. This presents cities with a fantastic toolbox of methods to control growth as they see fit, or at least make sure that the local taxpayers aren't stuck with the bill.

Laws governing how quickly residential development can occur are basically absent in Oregon cities. The projected growth is, to my knowledge, unquestioned by city governments. A survey of the plans of several cities in Oregon including: Ashland, Medford, Eugene-Springfield, Portland, Albany, Bend, and Corvallis revealed that none of these cities had anything like the Residential Development Control systems present in California and Colorado, whose cities have later adopted UGB's. Nor were there any ordinances being passed such as the one in Santa Barbara, CA declaring 85,000 persons to be the optimal population size based on environmental and infrastructure concerns, or the one passed in Davis, CA that required the city "to grow as slow as is legally possible".

Of the ten city plans that I surveyed, all cities in high growth pristine areas of Oregon, there was nothing resembling a program to control residential development. There was mention of vertical development plans in reference to the high density that is often implemented in order to create housing to match population growth within an urban growth boundary. As stated above, the state is strict about cities developing all of the urbanizable land within their UGB's before moving them further out.

To recap Oregon's Land Use Policies to date. Statewide land must be zoned, and municipalities must have Urban Growth Boundaries. Transitioning land from agricultural to urban uses is accompanied by a large tax penalty that must be paid immediately. Development of the coastal areas is overseen by a state run Division, and all counties have to answer to state oversight of their plans and zonings. Subdivisions have to be reviewed before they are permitted. The population growth projected for the next 20 years is to be planned for, and yet UGB's should not be moved until all urbanizable land within them has been used.

Washington

The State of Washington also had a long history of extraction industries whose jobs were filled by migrants from the eastern US and Europe. Native people were pushed onto reservations in this state as well. ⁵⁵ Several large companies have based themselves in Washington such as Weyerhaeuser , Boeing , and Microsoft .⁵⁶ The state has often been thought of as the gateway to Alaska.⁵⁷ The population of the state has steadily increased over time, and the vast majority of it settled on the west coast and around the Puget Sound where shipping and large industry jobs were available.⁵⁸

The state passed its growth management legislation in 1971, the Shoreline Management Act (SMA).⁵⁹ The SMA laid out specific guidelines for protection of what the state deemed to be "some of the most vulnerable and valuable of the state's natural resources, namely the shoreline.⁶⁰ The act had a purpose of stopping the piecemeal and uncoordinated development of the shoreline areas on both public and private lands.⁶¹ The policy was to protect against negative impacts to "wildlife, vegetation, aquatic life, public health, and navigation."⁶² Governor Dan Evans was much of the moving force behind this legislation; he also managed to get a State Environmental Policy Act (SEPA) passed during his tenure that modeled the Federal legislation known as NEPA (1969).

The Washington state Department of Ecology was given the task of adopting "adopting shoreline management guidelines to help cities and counties craft local shoreline goals and programs".⁶³ In November of 1972 a ballot initiative reaffirming the SMA was passed by a majority of voters in the state.⁶⁴ July of 1974 marked the deadline for local government bodies to have crafted and adopted a shoreline management program, only about 20% of them made the deadline, but a vast majority had such programs completed by 1979.⁶⁵ Washington's tendency to regulate growth county by county reflected the zoning laws that it had which left the focus on counties.

King County Washington created a bond program to buy development rights and protect its farmland in 1979.⁶⁶ This TDR program is still heralded as one of the most successful in the nation, and indeed land trusts are currently the major force in preserving open space against the swell of cities through suburban sprawl.⁶⁷

Similar to this TDR program growth management in Washington State is based on a series of reactionary measures. Growth is assumed, and governed to promote public happiness. The reason I note this is because it is similar to Oregon in that the state makes no regulation about the rate of growth, it merely regulates the shape and location of the growth¥which is shortsighted, but also reflects the difficulty of a state to legally determine how quickly it is going to grow. Washington merely makes determinations about how it is going to grow.

A decade after King County's TDR program was voted into place, the next major state growth management legislation after the SMA was passed by the legislature. The Growth Management Act (GMA) was passed in April of 1990. It is amended regularly by the state legislature.⁶⁸ The GMA was passed in part due to obvious voter dissatisfaction with the pace and appearance of growth in the state of Washington, particularly in King County and areas around the Puget Sound. King County.⁶⁹ Both Snohomish and King Counties elected officials who were pro growth management in 1989.⁷⁰ The Washington State Department of Ecology worked to create a Shoreline-Growth Management Project that would help counties integrate the two policies.⁷¹

The GMA declared that any county had a population of 50,000 people and that had grown more than 10% in the last decade up to 1995, or any county that had grown 17% or more in the previous decade regardless of population size was required to develop a comprehensive plan.⁷² The GMA gives specific elements that must be included in the comprehensive plans, and 13 specific goals that are to be met by the plans. The GMA is largely set up to divide the growing areas of Washington State into urban or rural, and encourage growth only in urban areas. Growing areas must have comprehensive plans that outline urban areas, rural areas aren't required to have comprehensive plans unless they experience growth as outlined above.

Elements that are required are a Land Use Element, Housing Element, A Capital Facilities Plan Element, A Rural Element (more on this later), a Transportation Element, an Economic Element, and a Park and Recreation Element.⁷³ The Land Use Element determines future population growth and designates areas for uses that are appropriate.⁷⁴ The Housing element is supposed to provide housing of all levels of affordability for future growth.⁷⁵ The Capital, Utility, Transportation, Parks and Recreation, and Economic elements are simply good planning for the future to accommodate future growth projections and be sure that infrastructure is in place.⁷⁶ The Economic element also takes population growth into account in calculating employment for the projected growth.⁷⁷

The Rural element is by far the most complicated. It outlines specific sorts of developments that should and should not occur in rural areas, and is largely a complicated means of avoiding leapfrog development, suburban sprawl, and exurban sprawl.⁷⁸ This element specifies that development in rural areas must serve the rural population unless it meets specific exception guidelines.⁷⁹ The Subdivision section reinforces this.⁸⁰ Subdivision requirements state that subdivisions must prove that it serves the public interest, and that they have adequate provisions ranging from potable water and traffic stops to open spaces.⁸¹ The Rural element also requires counties to "contain existing areas of rural development" and to not allow these areas to grow beyond their "logical outer boundary to limit low-density sprawl".⁸²

Integration of the SMA and the GMA after the led to as series of legal tangles that were not unraveled until 2003.⁸⁶ It was clear that the GMA was not at all a repeal of the SMA, but the Department of Ecology had to work for years to fulfill the mandates of both pieces of legislation.⁸⁷ The SMA eventually became part of the GMA, but the SMA stands for all areas that are shorelines of statewide significance, outside of these areas the GMA applies.⁸⁸

No state has, as of yet, tried to limit the number of new residents that it will allow each year, although budgeting constraints such as road building, education, and so on could easily underlie such a decision. This legislation would be nearly impossible to maintain against the courts on the state level, and yet on the local level higher courts generally uphold such decisions. Urban Growth Boundaries are historically a late development by local governments outside of Oregon when they are trying to curb unruly growth.

Local governments in Oregon have generally been the followers and not the leaders in controlling growth, but with such longstanding progressive legislation on the state level, local growth controls may seem largely unnecessary. This may be proof that cities can successfully limit their growth with UGB's and coordinated planning. It may be the success that cities in Oregon have had in being able to address the land-use issues without having to regulate residential development that have led to this, or perhaps it is that in states with a pro-development stance such as California, local governments need both residential growth controls and UGB's in order to control growth. California has legislation that declares development to be a privilege and contradictory legislation that demands local governments zone to accommodate all future growth projections. Generally, rapid and lightly planned development has been the rule in California.

Washington created its GMA in direct response to unruly sprawl. Its legislation follows local legislation such as the very successful TDR program in King County that is still operating. The focus in Washington is on the urban and rural split, and the focus of the GMA is clearly on growing or currently urban areas (UGA) only. By creating the Comprehensive plan at the county level the state was able to mediate some of the concerns over home rule and yet arrive at well-coordinated planning on the local level. Washington is still expected to grow quite a bit in the next few decades, but the growth will have to be up due to the fact that areas beyond the UGA's are not annexable. The clear focus on limiting sprawl in Washington coupled with a clear focus only on growing areas creates a successful program, but one that also does nothing to address the rate of growth.

Both Washington and Oregon presents us with cases of land use planning without addressing population growth directly. There have been many studies done on Oregon that have declared that the Urban Growth Boundaries and the land use planning have driven up housing prices, there have also been a number of studies that declare that this is not at all the case. The Urban Growth Boundaries are extended further as need permits, and as stated above due to twenty-year population projections. Washington has not had as many complaints about affordable housing issues, due to the fact that affordable housing was worked directly into the GMA, likely a product of their being able to glean from the Oregon experience. Unlike Santa Barbara, CA that zoned for a particular population size, cities in Oregon and Washington have chosen to zone according to limitations derived from agriculture and water, air, and land resources. The disconnect between population growth and sprawling urban development is retained throughout both states' legislation.

By just making rules about where one can and cannot live these states have declared that whatever population growth they have must be dense in nature. This method is one that many people would hail as wonderful, but it is shortsighted for two reasons. First it fails to take into account the fact that cities were built with a particular size in mind, and that eventually infrastructure may be overwhelmed and need to be extended or replaced due to population growth. Replacing the infrastructure of a thriving metropolis is a huge and incredibly expensive task, the cost of it could put taxpayers into perpetual debt. Secondly although high densities are allowed they are not the norm in the US; as the population grows the UGB's in Oregon will continue to expand due to public pressure, and people in Washington may grow wise to the GMA and declare huge urban growth areas within a new growth county such as the 370 square mile sphere of influence enjoyed by San Jose, CA. Maintaining the beauty of Washington and Oregon may well cause ever more people to want to live there, with a blind eye toward population growth this could become very expensive. Without policies to choose a particular size, or declare a number of residences that are allowed each year, cities are simply forced to build residences, as needed, a need that is potentially never-ending. In other words by doing the right thing in protecting the environment through land use, these states may easily become growth magnets for people who have a distaste for the common sprawl elsewhere in the US.

There is another disconnect in these states policies. Although water, air, and land are specifically accounted for in regard to the human impact, living densely only reduces the amount of water and energy used some. Each new individual still consumes a particular quantity of water, produces waste, and pollutes a particular share. Unless everyone in the region not only lived densely (as they must by state law), but also agreed to an environmentally friendly lifestyle, the human impacts will continue to affect the regions unique and matchless ecosystems. Land use policies that are aimed at absorbing all future population growth are truly being unrealistic; there are six billion people on Earth who all want to live in beautiful well-kept places. Within cities views, sunlight, noise pollution, air pollution, and many other concerns may well become the topics of the future in these states, and they are rights that should not be ignored. Directly addressing population growth would be a more proactive statewide solution. Even if it means simply pursuing lawsuits against the national government for its failure to directly address population growth.