WASHINGTON – Bob Harrison couldn’t believe what he was hearing. Even when his visitor, “John Smith,” placed the document on his desk and said, “Look at this,” Harrison wasn’t convinced.
As director of public policy for the Defenders of Property Rights, a non-profit legal group based in Washington, D.C., Harrison had heard of many outrageous schemes that would impact the rights of property owners, but what Smith – a business owner and member of DPR – was telling him went far beyond anything he’d heard of to date.
“Quite frankly, I thought he had been taking drugs,” Harrison recalled. “But what he was saying and showing me made my hair stand on end.”
It was a document Smith claimed was a mechanism for the federalization of land use in the United States, something many states and many Americans have opposed for years.
Titled “Growing Smart Legislative Guidebook,” the 2,000-page document is the product of Growing Smart, a seven-year project of the American Planning Association, a non-profit organization of professional land use planners and persons connected to the planning community through a shared interest in the subject. The Guidebook is essentially a collection of model enabling statutes (with commentary) that state legislatures would adopt to authorize planning, land development controls, regulations, procedural processes; everything states and local governments might need for – in the authors’ words – “planning and the management of change.” The statutes would be new requirements placed on state agencies and local governments to make often-significant changes in their ordinances and policies.
Several chapters have been released, and are already being used and under consideration by some states. Phase III, the finalized version, that includes some important chapters, has not been released, but is on the APA website.
Smith stressed to Harrison that the Guidebook, which had been funded in part by the Department of Housing and Urban Development to the tune of $1.78 million, was expected to be approved by HUD Secretary Martinez no later than Nov. 22 – less than a month away at the time.
According to the APA website, the Growing Smart project was initiated in October 1994, with seed money provided by the Seattle-based Henry W. Jackson Foundation, founded in honor of the late senator from the state of Washington. In addition to funding from HUD (the lead federal agency), money had also come from the Department of Transportation, EPA, FEMA, the Department of Agriculture, the Annie Casey Foundation, the Siemens Corporation and the American Planning Association.
There were no public hearings, no public notice, and Harrison discovered that few if anyone on Capitol Hill were aware of the Growing Smart Project or the planned Legislative Guidebook. This was preposterous. How could something like this be developed without somebody knowing about it, he wondered. How had proponents managed to evade the radar detector of private property rights advocates and government watchdog groups?
“Well, lo and behold, how quickly we have forgotten Hillary Clinton’s Health Care Plan,” Harrison observed sardonically, referring to the discarded project which like the Guidebook was developed clandestinely. “This is for zoning and land use what Hillary wanted imposed on health care.”
Smart growth with a turbo-charger
Attorney Nancy Marzulla, president of Defenders of Property Rights, and the senior staff attorney virtually closeted themselves in a room for a week to go line-by-line through the Guidebook, all of its 15 chapters, with a fine-toothed comb. They emerged only for breaks and to go home in the evenings. They were “absolutely appalled and horrified” by what they discovered, said Harrison.
“It [the Guidebook] is intricate; it is complex – it is smart growth with a turbo-charger put together by some of the smartest folks in the smart growth movement. And there are some awfully smart people in the smart growth movement, from land use planners to attorneys – and they’ve covered the map.”
The APA, Harrison learned, had sought out “like-minded folk in the Clinton administration who loved the idea of top-down, massive nuts-to-bolts, A-to-Z, cover-the-globe type of comprehensive approach to land use planning.”
There was a reason for the strategy, which critics like Harrison view as a way to bring in federal land use planning “through the back door.” A mid-1970s federal land use bill sponsored by Rep. Morris Udall had been soundly defeated when a massive outpouring of grass-roots opposition forced Congress to reject it. Congress would no doubt reject a similar proposal again.
“A frontal attack by legislation is not really feasible,” Harrison said. “And rather than have HUD get into zoning through the use of its regulatory power, which would subject the department to notice and comment requirements and legal challenges, HUD and APA adopted a different approach which could not be challenged in court. What they pulled together was a relationship where APA would develop this model land use code for HUD as a guidebook for state legislatures. HUD would pay them. HUD would review the product as it was submitted, and at the end of the process the secretary of HUD would then have one of three choices: He could approve the Guidebook (either by formal approval or default); disapprove the Guidebook; or he could disapprove the Guidebook and insist that a dissenting report be contained in the massive tome.”
If Martinez chooses the third option, the APA would still own the Guidebook and could promote it to state legislatures for adoption, but it would not have the imprimatur of the government approval.
“In essence, it will be the American Planning Association enticing states to accept this,” said Harrison. “It’s one step removed from the feds imposing their views on the states. A non-government organization would be having an impact over the states’ land use planning policies. Their views, those of the APA, will be the prevailing views.”
Defenders of Property Rights has spent the last week spearheading an effort to persuade Martinez to choose the third option.
“We’re struggling to catch up after seven years of effort by the other side working under the radar screen,” said Harrison. “In the last three weeks we’ve been going 100 miles an hour.”
A letter has been drafted and over a dozen commercial and non-profit organizations have signed it. The letter – which is being delivered today – reads, in part:
- We write to urge you to exercise your authority under the HUD/APA contract to disapprove the Legislative Guidebook, to be finalized November 22, on the grounds that we were excluded from the process by which it was formulated, which the product itself reflects.
The Legislative Guidebook as currently drafted federalizes local and state land use control, tramples private property rights, discriminates against minority business owners, and impedes economic development.
Those signing the letter by noon Friday included the National Black Chamber of Commerce, the Small Business Survival Committee, the National Cattlemen’s Association, Americans for Tax Reform, Competitive Enterprise Institute, Conservative Union, Frontiers of Freedom/People for the USA.
The National Association of Manufacturers has endorsed the effort but drafted its own letter urging Martinez to reject the Guidebook.
Congress has been alerted. Mike Hardiman, lobbyist for the American Land Rights Association, reported Thursday that “alarm bells are ringing” at the Capitol, and the Western Caucus – a group of representatives from western states headed by Rep. Richard Pombo, R-Calif. – was composing a letter expressing similar sentiments to that by Defenders of Property Rights. By Friday there were over a dozen signatures, with more expected. The letter will be delivered today. A staff person at the Western Caucus said it would be “very good” if people contacted their representatives and urged them to sign the letter.
WorldNetDaily contacted “John Smith,” who was willing to discuss his findings and observations, but requested anonymity for himself, his business, and the trade organization with which he works. “Just say I’m a business owner and a member of Defenders of Property Rights,” he said.
Smith said he “stumbled” onto the Guidebook during an Internet surfing session. “I found the APA website and there was information about it. I just started following links and chasing names, that sort of thing.” Then he discovered chapters of the Guidebook that had not been officially released but posted on the site. One item in particular was a red flag.
“Take a look at chapter 8 [on Local Land Development Regulation],” Smith said. “That’s a chapter that hasn’t been released yet, but it is on there. I am particularly concerned about the provisions for what they call amortization, which is essentially taking property without compensation. I’m a member of Defenders of Property Rights, and when I saw that I went to see Bob [Harrison] and asked him to take a look at this.”
Smith recalled that Harrison didn’t believe him, “but a week later he called and asked me to come back and talk to him. They obviously did a lot of research before they called me back.”
“There’s so much in chapter 8,” said Smith. “There’s a list of things it says that zoning ordinances can do. They can place restrictions on buildings because someone might not be able to see the stars or the sky – those kinds of scenic things. But every section of chapter 8 is of concern if you’re a business owner. There’s a little section on moratoriums. It’s very crafty wording, but as I understand it, a planner or planning board could say, ‘I’m thinking of making a change to the ordinance, so I’m putting a moratorium on everything until I decide what I want to do.’ That one is sort of interesting.”
Smith said there were provisions for a “big expansion” of the concept of development agreements.
In his view: “The way we see development agreements, and we’ve seen these harming our customers many, many times – a development agreement gives the planner a chance to get in the back room with the guy that owns the property and strong-arm him to do things that the ordinance doesn’t say he has to do, but they hold the lever over his head of not giving him a permit until he agrees to do so. This would make development agreements even stronger. Not only would you have planners writing the regulations through things like development agreements and design review requirements (which would also be much stronger), they’re setting themselves up with a police power. First they write the regulation, then they enforce it.”
Condemnation for ‘non-conformity’
As one whose clientele includes storeowners, Smith is very worried about provisions that restrict and regulate signs, even more than is currently done. For instance, chapter 8 includes language enabling a local government to use condemnation (eminent domain) to deal with a “nonconformity” or “non-conforming” use, something Smith predicts will be widely used.
“That’s the scheme,” he said. “And you notice it mentions ‘non-conforming’ signs. Signs are specifically mentioned. Up until now, and up until any of this gets adopted somewhere, an on-premise sign is a valid accessory use that relates to commercial property. So if your property is zoned commercial, a sign is a valid use. You have a right to put up a sign to tell people you’re in business so you can sell things. But the people who put this together are very slick. They’ve changed signs to a land use, separate and having no relationship with the property. That makes it possible to have commercial land zoned commercial with no right to tell people you’re in business.”
Like Smith, Harry Alford, president and CEO of the National Black Chamber of Commerce, is concerned about the signage clauses, and discussed with WorldNetDaily just how and to what extent the Guidebook statutes and ordinances would impact the businesses in black and other minority communities.
“They would be very much affected, especially by those signage regulations,” he said. “Our members rely on signage to do business in their local communities – dry cleaners, restaurants, storefronts. Let’s take San Francisco. Let’s take Chinatown. Imagine the signage there. And then those people who own those businesses are told they can no longer have signage to advertise their wares to the tourists who walk through Chinatown and look in the windows and at the restaurants. Oakland is like this too. This would destroy not only the businesses but the cultures, the whole environment.
Alford said that signs would be permitted, but not the kind that would be effective for the clientele his membership serves.
“They want to have these pristine, or subtle-looking, signs that won’t blare out at the community like a Dunkin’ Donut sign. Those will be passe,” he said. “There will be no more Dunkin’ Donut signs. It’s going to be all uniform signs, based on essentially a western European concept of signage. They want signs that conform to their aesthetic ideas, but which will not draw business in those communities.
“In minority communities in Chicago, St. Louis, Philadelphia – wherever you have large Latino, Asian or Black communities – the only retail tool these retail stores have are their storefront signs that are designed to appeal to their particular clientele. Our fear is that with these ordinances in place, the planners and bureaucrats will say, “Your signs are too loud, they’re too big, they’re not color-coordinated, and therefore they’re going to have to be this way” – which is going to kill businesses, and people will have to be laid off. It’ll kill the communities and kill those cultures.”
And it’s not just the signage issue.
“The statutes would add regulatory weight that would be too heavy for little businesses to carry,” Alford fears. “The National Black Chamber of Commerce has long been a proponent of regulatory reform. OSHA and EPA and all their regulations on small business, taxation – are just too burdensome on a small business. We’re trying to make it simple for small businesses to keep them part of our economic fabric. They’re important because small businesses today employ far more people than large businesses do.”
Moreover, Alford added, “If it weren’t for minority-owned businesses, the unemployment picture and the welfare roles would be out of control. Totally out of control.”
“So we see this as a very big threat, and if HUD is supposed to be the Department of Housing and Urban Development, they should realize this is anti-development. Secretary Martinez can easily say, ‘Hey, guys, I don’t like this thing. I’m not going to approve it.’”
Alford hopes that Martinez, who is a member of a minority group, having been born in Cuba and raised in Florida, is sensitive to the problems minority-owned businesses face. From now until Wednesday he’s working to muster sufficient opposition that the secretary will exercise the third option and disavow the Guidebook.
“He [Martinez] should well know what would happen if these laws are imposed,” said Alford. “Miami would be a case of where this would be devastating. He should definitely have some sensitivity to this. So we’re trying to stir up some attention. I’m getting ready to turn up the heat on it next week and start working with the Hispanic chamber [of commerce] and get the Pan-Asian Chamber involved big time. On Monday and Tuesday I’ll be out there beating the drum about this.”
Darrell McKigney, president of the Small Business Survival Committee, another signatory to the letter by the Defenders of Property Rights, is similarly concerned, and said he and his organization view the Growing Smart project and its Guidebook as a “further attempt to extend federal control and regulations over small businesses, to replace free market-style growth with Soviet-style planning.
“It’s anti-entrepreneurial, and it’s going to hurt people. When you start restricting business activities in terms of commercial space, where you can locate, wherever you get any kind of central planning of the economy obviously people suffer. People suffer individually, but so do their communities. We know that government central planning is never good for the economy.”
McKigney is cynical about assurances he has heard that the Guidebook is not a blueprint for central land use planning, merely a set of statutes a state legislature could adopt if it wanted to control and regulate urban growth and development.
“Sure, that’s what they say,” he said. “But the practical effect is pretty much the same. They want to get federal standards imposed about how they think the most local units of government should act and what they think cities should be like. I think that’s bad policy. It’s anti-entrepreneurial. We know these smart growth policies drive up the cost of housing; they hurt the economy, they hurt small business, and they destroy property rights.
“If you look around the country at places where smart growth projects have gone forward, you can see that they severely restrict places where people can conduct business, they attack basic things like signage – the ability of a business to advertise, and it drives up all the costs of housing and commercial property and commercial use. Frankly, that hurts both customers and it hurts the ability of small businesses to operate.”
But Stuart Meck, principal investigator for the Growing Smart Project at APA’s research center in Chicago, says the suggested statutes would go far to relieve problems communities face across the country.
“Growing Smart is actually model planning enabling legislation that states would adopt,” he told WorldNetDaily. “These are not local ordinances. They are model statutes the states could adopt that authorize planning, land development control, tax abatement, tax increment financing, things like that” at the state and local level.
Meck provided some history: “There were two prior major efforts on model legislation that were national in nature: the Standard States Zoning Enabling Act and the other Standard City Planning Enabling Act. These two acts were drafted in the 1920s by an advisory committee of the U.S. Department of Commerce under Herbert Hoover. They are called the Standard Acts, and they were tremendously influential in the United States, and most state enabling legislation up until 15 or 20 years ago were based on these acts. These were model acts that states could adopt, and they did, almost verbatim.”
Meck said that a little less than half the states have done some type of reform of their planning statutes in recent years.
“The major reform states are states like Oregon, Washington, New Jersey, Florida, Wisconsin, Kentucky, Maine, Tennessee, and Rhode Island,” he said. There, the statutes are “far more modernized.” But there are states in the Midwest – for example Ohio, Iowa, and Illinois – “where the legislation has remained pretty much unchanged for 50 years.”
According to Meck, language from the portions of the Guidebook that have been released have already been adopted in some states.
“People would take language from it, which is the idea,” he said. “The Guidebook is supposed to be a source book for statutory language, and actually incorporated into the bills. Sometimes they pass, sometimes they don’t. There was an Impact Fee statute that was introduced in the Kentucky legislature that did not pass.”
Asked about the benefits of Smart Growth and the new planning process, Meck answered that he likened these to a fire extinguisher.
“This is my basic premise: Plans, land use regulations, particularly land use regulations themselves, and statutes are police power measures – and so are fire extinguishers,” he said. “You wouldn’t trust a fire extinguisher that hadn’t been reexamined for 50 years. But many states are in the position of having planning laws that were designed for governmental structures and the thinking of the 1920s, and here we are in the year 2001 and we’re still trying to use those systems. That’s number one. Number two, there’s a lot of litigation on land use law today, and the legal climate has changed considerably since the 1920s. Citizens expect to be allowed to be a lot more involved in plan-making, and many of the statutes that are based on the 1920s model really provide only a minimal role for citizen involvement – like one public hearing at the end of the process. Nobody thinks that’s a good way to do things anymore.”
But Randal O’Toole, founder and chief economist of the Thoreau Institute – a non-profit group in Oregon that, according to its mission statement, strives to find and implement free-market incentives to protect wildlife habitat, public lands and urban livability – is sharply critical of smart growth policies and premises. Hence the title of a book he has authored: “The Vanishing Automobile – How Smart Growth Harms American Cities.”
Contacted for comment, he detailed his concerns, developed through nearly 30 years of research, to WorldNetDaily.
“My first objection is a simple one,” said O’Toole. “The planners think they know how other people should live and they want to force them to live that way, whether people want it or not. It’s social engineering. It isn’t sitting down and asking, ‘How do you want to live? Let’s make sure it works that way.’ Instead, it’s sitting with people asking how they want to live, but then they say – ‘We’re going to pretend we heard you say you want to live the way we want you want to live, so we’re going to redesign your community the way we want it.’”
The idea embodied in the model legislation, he said, is that growth must be contained within an area, that it can go “up,” but not “out,” over the land. That’s why they denigrate neighborhoods of single-family residences as “sprawl.”
The fact is, said O’Toole, people generally want to live in single-family houses and to travel in cars. Smart growth runs counter to what people want. It entails “high-density development, no more construction of highways, construction of transit – particularly rail transit instead of highways, and mixed-use development, where you have both housing and shops; the idea being that through high density and mixed-use development they can minimize the need for people to drive.”
Smart growth is an “anti-automobile system,” O’Toole continued, “But the problem is that it doesn’t really change people’s habits. People still drive, even if they live in high-density or mixed-use areas. They still drive because even if you build a whole bunch of light-rail or heavy-rail or any kind of rail, people continue to drive.
“The light-rail system in Sacramento is one of the nation’s failures. They spent a bunch of money and it’s had even less of an impact on traveling habits than Portland. They spent $5 billion building BART in the Bay Area, which carries 2 percent of all travel in the Bay Area. In Washington, D.C., they spent $10 billion building the Metro System, and it carries less than 3 percent of all travel in Washington, D.C., and only about 8 percent of all commuters. Rail transit is really insignificant. But when you combine rail transit with high-density development, what do you get? You get a lot more people driving in the corridors because you have a lot more people living in those corridors because you’ve put in high-density development. Instead of spreading people around so they can drive in a spread-around area that’s called sprawl, you concentrate them in corridors and they end up all driving in the same corridors and you end up with a lot more congestion.”
O’Toole is cynical about much of the motivation beind the push for smart growth legislation.
“It’s basically a full employment act for the planners,” he said, and pointed out that there are still a lot of counties that have no zoning. “If you require them to zone and write plans, then you make jobs for planners. That’s a big thing in Iowa. Most of the counties in Iowa have no zoning. They don’t need zoning; it’s all farmland. Nobody is worried about urban sprawl in Iowa. But by bringing in this kind of legislation they’ll have to do the planning, hire planners and attorneys and so forth. So it’s really a full-employment law for urban planners.”