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Measuring Regulatory Hardship Article sent back to the lower courts for further proceed- MEASURING roceed- ME S,� RI lv G ings,and usually have been settled or otherwise re- solved solved without generating what is so desperately • needed in takings jurisprudence—criteria for deter- REGULATORY mining whether a temporary taking has occurred, and, if so,a realistic method for measuring the dam- ages. Such a method must be based on sound real es- H SHIP tate analytical principles and be capable of being ap- plied equitably to the facts of typical takings contro- versies. The acceptance—by planning officials and Dealing with Real Estate - judges—of the principle of using measures of real estate returns to measure damages will improve the Queue in T� Gases predictability of the outcome of temporary taking cases. It will help planning commissions and zoning ♦ Richard J. Roddewig and ♦ boards craft procedures and criteria for administra- Christopher J.Duerksen tive hearings, which, we believe,will quickly become the first forums in the taking debate. In 1987, the U.S. Supreme Court decided three land use cases that have been hailed by devel- opers but have troubled local government offi- cials. One,Keystone Bituminous Coal Association v. De- The 1987 trilogy of land use cases expanded tak- Benedictis, involved regulation of coal mining to pre- ings jurisprudence, which now can be summarized in vent the adverse environmental and economic effects the form of six general principles. associated with surface subsidence due to under- Plaintiffs Must Exhaust All Administrative Rem- ground mining. At issue was whether the regulations edies before Going to Court. Courts are reluctant to were so onerous that they deprived the owner of all get involved in taking controversies. They discour- reasonable economic use of his property. The second age facial challenges to zoning and land use laws case,First English Evangelical Lutheran Church v. (challenges to the laws themselves as opposed to County of Los Angeles, involving a floodplain regula- their specific applications). The Supreme Court don,dealt with the question of what is the proper wants all possible state and local administrative pro- remedy when an overly restrictive regulation violates cedures, including variances, pursued before courts the Fifth Amendment's prohibition against"taking" become involved. Also, a development plan for the private property for public use without just compen- property must first be filed and rejected.As property sation. The third case,Nolan v. California Coastal owners and planning officials struggle to apply this Commission, involved the circumstances in which de- principle to particular cases, new procedural mecha- velopment exactions, an increasingly controversial nisms for handling regulatory disputes will be local practice, become unconstitutionally onerous. developed. Some commentators assert that this trilogy has re- Normal Zoning and Planning Delays Are Not written the Constitution's rules applying to land use Temporary Takings. Chief Justice William H. Rehn- regulation and they warn of dire consequences if lo- quist stated in First Lutheran that"normal delays in cal officials deny any development proposals. Others obtaining building permits, changes in zoning ordi- scoff at the impact of these cases, saying the ap- nances, variances, and the like" are not affected by proval business will continue as usual. While the the Supreme Court's decision. In today's world, a truth probably lies somewhere in between, the trio community may need periodic breathing spells to without doubt has significantly altered the local land sort through the impacts of past and proposed devel- use regulatory landscape. To begin responding to opment on its character and services. Moratoria that these decisions, developers, local officials, and plan- are reasonable in duration, enacted for a legitimate ners must sift through the sometimes cryptic clues land use planning purpose, and that provide time to that the Court has offered to date.The Supreme develop new comprehensive zoning and land use or- Court has not called an end to the land use and zon- dinances will not be held to be temporary takings. The Threshold for Taking game. It has just rewritten the rules. Claims Is High.All or Summarized here are the six general principles virtually all reasonable use or return must be denied that emerge from the recently expanded takings ju- the property owner before an unconstitutional tak- risprudence. We then explore real estate analytical ing occurs. Some impact on value and limitation on techniques likely to be applied increasingly in reg- use is therefore constitutionally permissible. Where ulatory taking disputes, an important exercise be- is the limit? It will vary from case to case, partly de- cause none of the recent Supreme Court taking cases pending upon the purpose of the regulation. One includes any factual presentation of the property can expect substantial impacts on value to be upheld owner's damage claim. Most of these cases have been I in many cases. 1-151-vT P 1•ri /January 89 21 The Purpose of the Regulation Remains Very best use."A "highest and best use"analysis that in- Important. Courts seem disposed to give some types vestigaces the property and the marketplace to deter- of regulation closer scrutiny than others. They are mine which use of the property is both most likely suspicious of physical invasion disguised as regula- and produces the highest present value will deter- don. Also, the more important the purpose, the mine whether a market exists for a particular prop- more likely a court will be to uphold the land use erty interest. control, regardless of its impact on property values. Such analysis will be increasingly important, be- Some have speculated that the health and safety jus- cause skillful definition of the property interest at tifications for the police power will be given stronger stake is more than half the battle in a takings case. judicial protection than its welfare justification. Both the Keystone and the Nollan cases are striking Nothing in the takings jurisprudence to date indi- evidence of that. cates any judicial weakening of support for general Nollan and Keystone point to an emerging rule con- environmental and land use planning objectives. cerning interest affected: if the property is physically Such objectives as open space and agricultural land invaded, look to the actual interest invaded; if the is- protection, landmark preservation, aesthetics, pro- sue is merely regulation, then look to the entire tection of environmentally sensitive lands, and the property as the interest affected. In other cases, the sensible use of floodplains have already been given Supreme Court has said that physical invasion and special recognition by the courts. No doubt other mere regulation are subject to the same rules. The elements of the general welfare will also be so Court will have to change this conclusion and dis- recognized. tinguish the physical invasion cases from regulatory The Focus of the Taldng Inquiry Is the Entire taking cases as it gets more experience handling the Property Interest. A regulation's severe impact on land use and real estate situations involved. one portion of the ownership interest is not a taking Has the Property Interest Been Taken? Once the if the property as a whole can continue to be used property interest has been defined, the question be- profitably. Many cases will be won or lost based on comes whether the interest has indeed been taken. the definition of the property interest. Justice Brennan's majority decision in Penn Central A Strong Nexus Is Required between the Stated and his dissenting decision in San Diego Gas and Elec- Purpose and Regulatory Conditions. Courts will tric Co. v. City of San Diego contain the best statements now apply greater scrutiny to the purpose of a land of the necessary judicial analysis. Three phrases ap- use control and the implementing measures. Reg- pear time and again in the Brennan formulations of ulatory overkill will be overturned. Planning officials the taking test: "reasonable return," "beneficial use," will respond by carefully tailoring regulations and and "investment-backed expectations." exactions to their goals. Not just any adverse impact on value gives rise to a constitutional claim to just compensation. Both Jus- tice Brennan in Penn Central and Justice Stevens in The Three Basic Real Estate Questions in Keystone repeat Justice Oliver W. Holmes's classic Takings lye statement in Pennsylvania Coal v.Mahon: "Govern- , ment hardly could go on if to some extent values in- What Property Interest Is at Stake? In Keystone,. cident to property could not be diminished without Justice John Paul Stevens, writing for the majority, paying for every such change in the general law." reiterated the basic test laid down by Justice William The impact on value must be substantial. In Penn J. Brennan in Penn Central Transportation Co. v.New Central,Justice Brennan cited two other cases in York City, namely that in takings cases it is necessary which substantial decreases in property values did to look at the entire property: not invalidate a regulation:Euclid(where there was a "Takings"jurisprudence does not divide a single parcel 75 percent decrease in value) and Hadacheck v. Sebas- into discrete segments and attempt to determine tran (with an 87.5 percent decrease in value). whether rights in a particular segment have been en- The Supreme Court pronouncements in Penn Cen- tirely abrogated. In deciding whether a particular gov- tral, San Diego Gas&Electric, and First Lutheran seem ernmencal action has affected a taking,this Court focus to treat denial of all reasonable or beneficial use as rather both on the character of the action and on the synonymous with denial of all reasonable or bene- nature of the interference with rights in the parcel as a ficial return. But in common real estate economic whole—here the city tax block designated as the"land- anasis, and"use" "return"are not synonymous. mark site."(Emphasis added by the Court.) yy Some types of property, such as a plant used by a The property interest at stake in most land use manufacturing firm to produce widgets, a storage and zoning cases can be defined by two real estate and garage building used by a distributor, or a fast- criteria. The first says a claimed property interest food restaurant, are held primarily for business pur- must be a legitimate and marketable interest, not an poses,and thus for use rather than for return. ephemeral interest with little or no market value. Some investment properties are owned exclusively The second says a property's value is its "highest and for the return that the property can generate. Office 22 January 89/ ..R'–N Il-gfir 5 . buildings, shopping centers, leased industrial and guidance to the courts in the award of compensation for distribution centers, and rental apartment buildings a regulatory"taking."As a starting point,the value of are examples. Their owners are not so much inter- the property taken may be ascertained as of the date of ested in the use that occurs in particular buildings as the "taking." they are in the return on their investment compared Unfortunately for property owners, land use plan- to returns on alternative investments of comparable ners,zoning attorneys, and judges alike, few of the risk in other real estate, stocks, bonds, or other in- "ordinary principles" referred to by Justice Brennan vestment vehicles. apply as readily to either permanent or temporary The property owner making a claim of economic takings caused by regulatory actions as they do to hardship under the expanded takings jurisprudence physical invasions ofproperty. will have to provide more information. A proper tak- In traditional eminnt omain cases, the value of ings analysis of property purchased primarily for the entire property interest on the date of the taking business or personal use gauges the impact of the is the fundamental inquiry. When measuring dam- regulation on the owner's ability to use it as it has ages from a regulatory taking, experts must address been used historically. The analysis of investment • the value of the property interest left to the owner. property must be even more rigorous. The ability of Two interests must be appraised: the entire property local governments or the courts to adequately mea- interest before the taking, and the remaining prop- sure the impact of a regulation on value or on return erty interest after the taking. This classic "before and depends in large measure on the cooperation of the after" test is often used to value easements and other property owner. less-than-fee interests in property. Justices Brennan and Stevens correctly say that When a regulation restricts a property's use, what whether an unconstitutional regulatory taking has use assumptions are appropriate in valuing the occurred is a matter of ad hoc factual determination. property? Is the basis of value the use allowed by the The determination requires both an evaluation of offending regulation? Is it the "lowest" use that a the type of property regulated and the purchase or government could impose without crossing the tak- investment motives of the owner. The investigation ing threshold? Or is it the "highest and best" use for of investment history and motives,and income gen- the property in the marketplace? (See Donald G. erated by the property, including potential income Hagman, "Temporary or Interim Damage Awards in from its sale, has become essential precisely because Land Use Control Cases," Zoning and Planning Law only if the regulation denies the property owner all Report,June 1981.) reasonable use or return must compensation be paid. The valuation questions are even more difficult if If reasonable use or adequate return on equity re- the government decides to rescind the regulation mains after regulation, no taking has occurred. and pay temporary damages. In some situations, the Given a Taking,What Are Its Damages?One central inquiry may focus on return rather than val- point should be clear: the threshold for proving a ue. Should the owner get only the lost rental value taking is a high one. In very few cases will the prop- from the property for the period of time the regula- erty owner be able to prove that all reasonable use or tion was in effect? What if he never intended to rent return has been denied or that reasonable the property, or if it was doubtful he could have investment-backed expectations have been dashed. rented it? Should the owner receive the difference Once a taking is demonstrated, however, the really between the value of the property on the date the difficult work—measurement of damages—begins. regulation was imposed and its value on the date the Traditional real estate valuation and analysis tech- regulation was rescinded? What if the property goes niques are indispensable in this task. up in value between those dates, or market condi- Because none of its recent land use decisions actu- tions so change during the duration of the tempo- ally attempts to measure the damages, the Supreme rary taking that the government in effect has saved Court offers little guidance on the proper tech- the owner from making a serious financial mistake niques.Justice Brennan, in his San Diego Gas &Elec- by developing the property? tric dissent, has given us the best statement of the These are open questions. Since few federal and rule: state court cases have discussed the actual measure The constitutional rule I propose requires that,once a of damages, little jurisprudence on these issues has court finds that police power regulation has effected a been developed. In one of the few cases since the tri- "taking,"the government entity must pay just compen- logy to actually attempt to measure the damages, sation for the period commencing on the date the reg- Wheeler v. City of Pleasant Grove, the federal district ulation first effected the"taking,"and ending on the court said the focus of the damages inquiry must be date the government entity chooses to rescind or other- on the property itself, not on the individual parties, wise amend the regulation. Ordinary principles deter- and it rejected the idea of reimbursing the potential mining the proper measure of just compensation,regu- develo er for lost profits or increased costs: "To larly applied in cases of permanent and temporary P "takings"involving formal condemnation proceedings, award any affected party additional compensation occupations,and physical invasions,should provide for lost profits or increased costs of development TITI 111LidTT1/January 89 23 CASES CITED Nollan v. California Coastal Commission, McDonald,Sommer&Frates v. County of Village of Euclid v.Ambler Realty Co., 480 U.S., 107 S. Ct. 3141 (1987). Yolo, 106 S. Ct. 2561 (1986). 272 U.S.365 (1926). First English Evangelical Lutheran Williamson County Regional Planning Pennsylvania Coal v.Mahon, 260 U.S. Church v. County of Los Angeles, 480 Commission v.Hamilton Bank of Johnson 393 (1922). U.S., 107 S.Ct. 2378(1987). City, 473 U.S. 172 (1985). Hadacheck v.Sebastian, 239 U.S. 394 Keystone Bituminous Coal Association v. San Diego Gas and Electric Co. v.City of (1915). DeBenedictis, 480 U.S., 107 S. Ct. 1232 San Diego, 450 U.S.621 (1981). (1987). Penn Central Transportation Co. v.New Wheeler v. City of Pleasant Grove, 833 F. York City, 438 U.S. 104(1978). 2d 267 (11th Cir., 1987). would be to award double recovery: the relevant fair a zoning action works an unconstitutional hardship market values by definition reflect a market estima- and,as a result of those procedures, finds that en- don of future profits and development costs with re- forcement of the action would deny all reasonable spect to the particular property at issue."As the use and return, the government can overturn the ac- courts handle more and more taking cases, the an- don.The community will not have CO pay damages. swers to questions of damages will become clearer. Damages for temporary takings must be paid only if the courts are brought in to overturn government Incorporating Taking Considerations into the actions. Approval Process Property owners and developers may prefer the courts as a forum, and their attorneys may challenge Like it or not, local officials will become increas- the legal basis of administrative hardship hearings. ingly involved in messy controversies involving"re- Interesting cases will arise to resolve that question, as turn" and"value." Zoning boards and appeals well as to clarify whether administrative determina- boards will have to deal with real estate questions dons on hardship claims, and the land use decisions when they consider the hardships their decisions based on these determinations, are truly administra- might impose.Although planning and zoning offi- Live(subject to judicial review only) or legislative cials will often be reluctant to weigh such real estate (subject to trial de novo in the courts). issues, their consideration will increasingly be built into the zoning and land use review process for four Handling Hardship Claims fundamental reasons. First, administrative hearings are a much more ap- Who Should Hold the Hearing? For most types of propriate forum than a courtroom for consideration taking questions, the zoning board of appeals is the of the complicated evidence on such points as adecproper body to hear a hardship claim.This board's quate return or the tax position of the owners. traditional role in variance matters gives it the kind The second reason for involving planning officials of experience needed to hear taking cases. Some is more important. If the evidence concerning hard- communities may want to create a special entity to ship is presented at an administrative hearing, and hear taking cases, peopled,say, by members of the the decision is made on the record, under many state planning board, the zoning board, and the city or vil- administrative review acts, there is no trial de novo in lage council. Care must be taken to find a statutory the courts. In other words,judicial review is limited basis for such a body in the state's zoning enabling to the record made at the administrative hearing, act, in constitutional home rule authority provisions, and the judge must uphold the decision of the ad- or in other sources. ministrative agency if there is a reasonable basis in When Should the Hearing Be Held?The timing the record for the decision and the administrative of the hardship hearing depends on the nature of decision is not clearly against the weight of the evi- the action alleged to cause an unconstitutional tak- dence presented. ing. One rule on timing is clear: do not mix consid- Third, the U.S. Supreme Court itself has gone on erasions of specific hardship on particular pieces of record as sympathetic to administrative procedures property with hearings on general planning consid- to handle hardship questions.To have their day in erations. Proper consideration of the taking issue re- court, property owners will have to exhaust all possi- quires attention to the particular effects of specific ble administrative avenues for relief. ordinances or actions on a specific parcel of property Fourth, and most important, if the local govern- at a particular time and given a specific development ment has sound procedures for determining whether proposal. 24 January 891 ii]rum , Who Bears the Burden of Proof? Clearly, the judicial determination; the judicial review will very property owner who alleges that a taking has oc- likely be limited to the record made before the curred is the one who must prove it. He or she must board.The standard used by the courts to review ad- present evidence sufficient to prove that all reason- ministrative decisions favors the administrative body: able use and return has been denied as a result of if the board's determination is based upon substan- the zoning action. Developers and property owners tial evidence in the record, or the board's decision on will resist boards' demands for the requisite informa- the evidence is fairly debatable,a court will not sub- tion, and doubtless there will be much procedural stitute its judgment for that of the board. squabbling as they attack the rationale for these The burden of proof in the courts is on the person demands. attacking the decision of the board.The property What Information Must the Investment Property owner must show that the board abused its discre- Owner Present?The expanded takings jurispru- tion, used an improper standard,did not make suffi- dence says to the government: if you overregulate, cient findings of fact on the record, or that the rec- you become an investor/owner in the property. ord showed no substantial evidence to support the Therefore, it is essential for the zoning authority to board's finding. get the same type of information that any other po- If a court overturns a board's determination that tential investor would need to judge whether to in- no hardship was imposed, damages for the tempo- vest in the property and what the likely rate of re- rary taking will be payable from the date of the turn on equity investment would be. board's final decision to the date when the communi- Among the types of information an owner should ty amends or rescinds the offending action. submit are: past and current uses of the property; original purchase price; assessed value; recent ap- Who Pays Takings Claims? praised value; current mortgage principal balance and interest rate; past income and expenses; owner- This is the ultimate question. Courts may overturn ship structure (partnership, corporation, or other); even the most thoughtful administrative determina- and owner's tax bracket. The zoning authority will tions and hold that a taking has occurred and dam- have to compare the owner's returns without and ages must be paid. Municipalities now insure against with the regulation in question to determine its im- increased potential liability for all types of municipal pact on the property's value. actions. Pooled insurance pians to protect against takings claims are being pursued in Minnesota and Should Hearing Officers Be Used?The technical other states. valuation and investment return issues involved in Who pays? Ultimately, local taxpayers do. But, if taking controversies suggest the need for assistance local governments do their share to adopt proce- in handling the hearings. It often may be appropri- dures designed to determine if a taking has occurred ate to appoint an objective hearing officer with ex- and do their best to decide the issues fairly and ob- pertise in real estate appraisal or consulting to run jectively, is it fair to make them solely responsible for the hearing,sort through the information presented, temporary damages should the state or federal and make a recommendation to the board or com- courts overturn an administrative decision after two mission. Authority for such a hearing officer must be or three years of protracted litigation? Shouldn't the found in state law and local ordinance, and the state or federal government responsible for the board or commission must be careful not to delegate shortage of judges,judicial procedural inadequacies, its authority illegally. and rules of civil procedure that extend the legal What Happens if No Reasonable Use or Return process unnecessarily share in the cost of that delay? Remains? If the hearing board concludes that all No court has yet wrestled with that question, but it reasonable use and return have been denied the may be addressed—along with myriad others—as property owner, the community has a number of planning and zoning authorities, local officials, and choices. It may simply overturn the disputed deci- developers cope with the new takings sion or regulation and grant the zoning requested by jurisprudence. ■ the property owner. Or it may take zoning actions that would impose less of an impact on the property RichardRoddewigis president of Clarion Associates. owner and thus would not constitute a taking. Or it J. . may leave the restrictive zoning in place and offset Inc.,a real estate consulting and appraisal firm based in the hardship with incentives such as financial assis- Chicago. He is also a land use attorney and currently chairs the American Bar Association Land Use,Planning ranee, property tax abatement, or transfer of density. and Zoning Committee.Christopher J.Duerksen is a past What Happens if Reasonable Use or Return Re- chair of the ABA Land Use,Planning and Zoning Com- mains? If the board finds no taking(or if insufficient mittee,and currently is director of Gateway Development information was made available to make a finding), in the Office of the Mayor in Denver.Colorado.This ani- the property owner has the right to appeal to the de is based in part on the authors'book.Responding to the courts. In most states, the finding of the board can raising Issue:A Guide for Local Officials and Planners(1988), be characterized as an administrative or quasi- published by the American Planning Association. 111I1D /January 89 25 In 1987, the U.S. Supreme Court decided several land use cases. How these decisions will affect land development practices, and, in particular, the ability of governments to continue to use some regulatory techniques that have become commonplace, is still a matter of considerable debate and uncertainty. Here, Michael M. Berger takes issue with an interpretation of these Supreme Court decisions that was published in the January issue of Urban Land. Later, on page 15, the authors of the original article, Richard J. Roddewig and Christopher J. Duerksen, respond to Berger's reading of the new regulatory landscape. MEASURING REGULATORY HARDSHIP: A DIFFERENT VIEW OF THE ELEPHANT Michael M. Berger esop was right. His delight- and judges. While those six princi- i courts, notably California's. have ful fable demonstrating pies can be drawn from the gener- i supported this assumption) chat if that perspective can color al case law, it is my belief that only their regulation was substantially analysis holds as true for scholarly one of the six is substantively im- l related to the general health, safe- examination of the U.S. Supreme ! portant, and that emphasis on the ; ty;and welfare of the community, Court's opinions as it does for un- others serves only to obscure the the regulation was immune from sighted feelings about the nature i significance of the Supreme challenge. of pachyderms. Court's recent holdings. First English concluded express- In the January issue of Urban There are other aspects of the ly that this theory was invalid. Land, Richard J. Roddewig and 1987 opinions that land use reg- Even if a regulation is justified Christopher J. Duerksen present- I ulators would be wise to recog- under general police power pre- ed their analysis of three land- nize. The important messages cepcs, the Fifth Amendment's just mark decisions rendered by the I crafted by the Supreme Court in compensation clause must be sat- Supreme Court in 1987: First En- these cases can be summarized in isfied. In the Court's words: gfish Evangelical Lutheran Church v. nine categories. . . . (The Fifth Amendment] is de- County of Los Angeles 482 US 304 A valid regulation can require signed not to limit the governmen- (1987),Nollan v. California Coastal the payment of compensation if it tal interference with propene rights Commission 483 US 825 (1987), takes private property in the pro- per se, but rather to secure com- and Keystone Bituminous Coal Asso- cess. In the past, land use regula- pensation in the event of otherwise dation v.DeBenedictis 480 US 470 tors have focused their attention proper interference amounting CO a (1987). In that article, Roddewig on the community's need for a taking. (96 L.Ed.2d at 264: empha- and Duerksen purported to draw particular regulation, rather than sis added; Court's emphasis "six general principles" from on the impact of that regulation deleted.) those cases to guide land use plan- on affected property owners. Thus, it is no longer enough for ners, property owners, lawyers, They have assumed (and some land use planners to devise 10 Miav 89/ 1 schemes that further their views This should require extensive fees that link project approval to of the public interest without re- rethinking in jurisdictions like some unrelated program. such as gard to the impact of their actions California where development of the provision of public art, low- on regulated property owners. property traditionally has been income housing, daycare centers, Valid goals will not, alone, satisfy viewed as a privilege that govern- and the like. Some of these pet the Constitution. merit may permit or not. at its dis- projects will undoubtedly fail The Constitution requires com- i cretion. The resulting change in Notion's more stringent test, be- pensation for all takings,perma- regulatory mindset should alter cause of the lack of a rational nent or temporary. Thus, govern- 1 the regulatory climate signifi- ; nexus between the public burden mental delaying tactics,which can ; candy. The regulatory focus must caused by the proposed project defer the ability to make any rea- undergo substantial revision in and the quid pro quo demanded sonable use of property for so shifting from a belief that govern- i by the government. long that the owner may be driven merit is free to bestow or withhold Orwellian labels are disfavored into foreclosure or bankruptcy, its largesse as it pleases to an un- land use tools. Two label games cannot be employed without derstanding that property owners routinely played by regulators compensation. have a right to build on their land. i were disapproved by the Supreme This aspect of First English ap- Moreover, the concept that de- Court. plies directly to one of the plan- I velopment is a right, not a privi- First, planners have become ac- ners' favorite tools: "temporary" lege, should result in a rethinking cuscomed to insisting on "dedica- moratoriums. First English itself of the "vested rights" concept. tions" of property as conditions to arose from a temporary planning Some state courts, and numerous i the issuance of land use permits. moratorium, enacted to enable i regulatory agencies, have oper- As a consequence of use of this la- the county to reconsider appropri- i aced on the belief that a property I bel, some courts have concluded ate uses in an area subject to owner has no "vested" right to , that property owners cannot at- flooding. The Court made it clear build on his property (i.e., a right ! tack the constitutionality of such that such moratoriums could re- ; that cannot be defeated without . exactions because—reading the suit in the need for compensation, liability) until he obtains plan ap- 1 term '`dedication" literally—they noting that when the government ; proval and a building permit. and I euphemize that the property overtly condemns property for begins construction. But that idea i owner voluntarily `gave" the brief periods of time (the exam- seems inextricably linked to the property to the public, and pies cited by the Court were all ; theory that the owner has no in- therefore had no grounds for one-year leaseholds, with options herent right CO build and is merely complaint. for renewals), compensation is ; seeking the bestowal of a govern- Nollan cleared the semantic air, required. mental privilege to use his land ± noting that there is in fact no All moratoriums. of course, will profitably. As that fundamental i donative intent on the part of not require compensation. Each. underpinning of the vested rights the owners, only the owner's however, will have to be examined theory has changed, so, it would compliance with governmental in light of its impact on affected seem, must the conclusion. requirements. property owners to determine i No exaction can survive a Fifth Secondly, even when regulators whether compensation is required ! Amendment challenge unless it is disdain the "dedication" fiction. to validate the regulation. rationally related to the burden Property owners have a right to that the property owner's proposed build on their property, subject only i project will cause. (This is the pri- to reasonable regulation. Develop- mary point of concurrence be- I merit is not a governmentally con- tween my reading of these cases I j ferred benefit or mere privilege. and the Roddewig/Duerksen i i /, As the Court put it in No/lan: /iii" ' analysis.) I / it% , ' ' + f . the right to build on one's own :Nonan plainly requires a strong l''� iii , property—even though its exercise relationship between problems y;,,,J '4 r• can be subjected to legitimate per- caused by proposed development •;; f X9;;2* and the '' 4%,�`' mittingrequirements—cannot re- government's required i ,,.i�, �-a/,� motely be described as a"govern- "cure."Too often, property own- �(,,Zi, ,1 I mental benefit." (97 L.Ed.2d at 687, 'A i..'�)' 4. ers • seeking approval to put their fn. 2) land to productive use have been Thus, while acknowledging gov- I used by government agencies co V").\.I ernment's right to condition con- finance certain pet municipal _ t struction. Nonan also recognizes projects that otherwise could not -. ,' the property owner's right to I be funded. The current vogue is beneficial use. ; to charge "linkage" fees—that is. T,�b- ':7-7—. ',',t / May S9 11 . -0,• 1/4 ,e,?i• / fi:ii,L"'-'.' 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Iy /;! fi `lf�•� rj/. r,�� {tr g 4 'f1 - / JJ / /( j ` (, {/ f ` r• ` f, 4 %. � t'7', /,/r;� ,%.,A, �FclJLAToRY '..-.:".,';,,;.:;11P• IIYY.';� i /A'/ a /i iq 1, . fir, '� i /J .".i%' ///l - , '``�,/ `..•-,;;-?------ ,�,o,.1.�._:fi,_ _kyr" ,• / ' ,/ 4, ,i1 r 1', 171% / ,,f.f,(1,7A fl,..,,;-, _r ‘, , -;,...,-,Z..:<,..1.t."6„r • _ 1) ..,%f. -:-4°.. - I i _ 80-....."---•"� l /� 1 �, PETr-HASSEL IAN MAY/9139 more appropriately referring to I in the Roddewig/Duerksen Contrary to Justice Brennan's claim such conditions as '`exactions," the article.) . . . our opinions do not establish absence of any substantial rela- From the perspective of some that these standards are the same as tionship between that which is outsiders, land use planners have those applied to due process or sought by the property owner and become lazy and complacent over equal protection claims.To the con- that which is exacted in return bytheyears because of the relaxed the takings our field formulationsave enel in the field have generally the government renders the con- standard by which courts have re- been quite different.We have re- dition invalid. In language not ( viewed their regulatory actions. quired that the regulation"substan- usually seen in civil cases,Nollan Regulations have been sustained tially advance" the legitimate state harshly concluded that, when im- because the courts concluded that interest"sought to be achieved(ci- properly used, an exaction is "an there was a "rational basis" for cation], not that"the State could ra- out-and-out plan of extortion." them, or that the wisdom of clonally have decided the measure might achieve the State's (97 L.Ed.2d at 689) adopting the regulation was "fair- objective."adopted ( 7 L. Ed.2d at 688, The standards by which courts ly debatable." fn.3) examine the validity of land use No more. The standard regulations will be tightened. (This adopted in Nollan is far more A growing number of commen- thought makes a brief appearance . strict: tators agree that this may be the 12 May 89/ 7 . : Y. • most important aspect of Nollan. The government also urged in conclusion that, "the trio [of 1987 Changing the way that courts re- Notion that the confiscation was opinions] without doubt has sig- view regulatory actions will re- necessary to create a "buffer zone" nificantly altered the local land quire substantial changes in the between beach users and beach- use regulatory landscape," Rodde- way in which those actions are front residents. The Supreme wig and Duerksen try co construe taken. Court dealt with this rationaliza- the 1987 Supreme Court decisions Extreme deference is no longer don in a footnote, terming it in such a way that little impact is due governmental land use deci- "even more obviously a made-up acknowledged. sions. While related to the preced- purpose of the regulation." (97 Instead of discussing the real ing analysis regarding the stan- L.Ed.2d at 690, fn. 6) changes noted above, Roddewig dard of review, this point is subtly The just compensation clause is and Duerksen appear to view the different. For, even if the "ration- self-executing. In other words, if a opinions as providing mere gloss al basis" standard is discarded, government regulation takes on the body of the law. That is regulations might as easily be ap- property without compensation, evident from the issues they proved if the rationalizations pro- the damaged property owner can ! emphasize. lerred by government were taken file suit to recover compensation If numerical order means any- at face value. even though no statute expressly thing, the most important rule Nonan precludes this as well. As authorizes such suits. One would they draw from these opinions is noted earlier, semantic games- not have thought this a remark- that administrative remedies must manship is no longer tolerated as able pronouncement in light of be exhausted. While the conclu- a substitute for factual analysis. the Constitution's clear language, sion is generally true, the issue is The Court was blunt in its rejec- but for the vehemence with which hardly of prime importance. In- don of governmental rationaliza- some government agencies (par- deed, if anything,First English and tions: "We view the Fifth Amend- titularly the U.S. Solicitor General Nollan undercut the exhaustion meni s property clause to be more in an amicus curiae brief in First requirement: in First English, suit than a pleading requirement, and English) denied the inherent right was filed one month after the reg- compliance with it to be more to sue under the clause. ulation was adopted, with no at- than an exercise in cleverness and The importance of this concept tempt to exhaust any remedies: imagination." (97 L.Ed.2d at 692) is that regulatory agencies cannot i and in Nollan, the property own- The Court's analysis in Nollan rely on the absence of legislation ! ers accepted the benefit of their demonstrates the new nondefer- ! authorizing constitutional chal- permit and built their home while ential mode of examination. lenges to avoid the constitutional continuing to litigate the pro- There, the government argued requirement of compensation. priety of the exaction. In each that its confiscatory action (requir- The constitutional remedy may be case, the Court rejected govern- ing dedication of a private beach directly invoked. went arguments that failure to ex- as a condition to constructing a Excessive use of the police power haust remedies rendered the suits single home) was rationally relat- to curtail the ability of property unreviewable. Exhaustion is not ed to the legitimate goal of main- owners to use their land will be what these cases were about. taining "visual" or "psychological" ended. There is no longer any Nor does it seem particularly access to the coast. Rather than ' place for a laissez faire view of helpful to focus on what tempo- accepting those explanations at land use regulations. To the ex- rary takings are not. Roddewig face value, the Supreme Court I tent that it existed before June and Duerksen find solace for their subjected them to strict scrutiny 1987, both First English and Nollan apparent proregulation point of and found them wanting: put an end to it. In each case, the view in the First English comment Rewriting the argument to elimi- Court(with the lone exception of chat"normal" delays in obtaining nate the play on words makes clear Justice Stevens dissenting in First permits are not temporary tak- that there is nothing to it. It is quite English) acknowledged that reg- ings. This conclusion is of little impossible to understand how a re- ulators have too often abused consequence, however. "Normal" quirement that people already on those seeking land use permits. delays in the planning process can the public beaches be able to walk The clear import of the opinions be seen in the statutes of many across the Nollans' property re- is that such abuse must cease. states that have adopted so-called duces any obstacles CO viewing the permit streamlining acts. Such beach created by the new house. It statutes establish the '`normal" de- is also impossible to understand Obscuring the Impact lay envisioned by legislative bod- how it lowers any"psychological The Roddewig/Duerksen analy- ies. Most such statutes "deem" ap- barrier" to using the public beaches or how it helps to remedy any addi- xis in the January issue of Urban plications to be approved if not tional congestion on them. . . . (97 Land adds to the confusion in this acted on within brief periods of LEd.2d at 690) field of law. Despite their early time (generally, 30 to 60 days). ITigT liVFW) / May 89 13 guage in older opinions. Howev- My primary difference with the er, to state that the "rule" is chat Roddewig/Duerksen analysis of cif no taking ever occurs without the factors that go into determin- ;�63i deprivation of all or nearly all use ing whether a taking has occurred 1, "" 3 so overstates the case as to invite and, if so, how to value it, stems governmental agencies to commit not so much from a dispute over ,, .• widespread injury and expose valuation methodology as from a 4'1,A . 7,,�„„r q, ,,,,�� I themselves to substantial judg- fundamental disagreement about • i,N., ,, . Sir._ ;, menu. (For extended discussion, the important issues decided by ;,,,,,�, r,.�i ;�1, . ! see Berger, "Happy Birthday, the Supreme Court in 1987 and ,� f • ,,i, r 1 ,,.,r; Constitution: The Supreme Court the application of those factors in pi,-,,,, l ,; ”, � I Establishes New Ground Rules for i regulatory proceedings. %�� 4, t .', Land-Use Planning," 20 The Ur- The problem is that analyses • • 'C '��j"r�' ' � '',' ban Lawyer 735, 758-772, like the Roddewig/Duerksen arti- . Rf..% ►,�+ , 781-783 [1988].) ' de, which downplay the impact of ' ' ' i.; ' i the 1987 decisions, or which seek i to convey the message that it is both difficult to prove a caking Must Regulators and and to value one once it has been proved, embolden regulators to Property Owners Be Focus on this short-term escape skate close to the constitutional hatch, rather than on the actual Adversaries? edge. It is this type of regulatory holdingthat temporary takings re- action—a sort of high stakes p Coming from one like myself � quire compensation, renders the "chicken" game to see how close whose sole practice is litigation. line one can go and which Roddewig/Duerksen analysis of this question may seem heretical. to the0 little help. However, one distressing thing I party will flinch first—that causes The same is true of the conclu- about the Roddewig/Duerksen ar- litigation. sion that the threshold for takings title is its implicit assumption that The cost of miscalculation can claims is high. Roddewig and regulators and property owners be severe for the government. For Duerksen posit the "rule" that j are natural adversaries and all example, in a case recently tried "[a]1l or virtually all reasonable analyses must be made in the lid- by our office, delay in the ability use or return must be denied the I gational context. ; to use a 27-acre parcel of coin- property owner before an uncon- It ain't necessarily so. mercial property for a year and a stitutional taking occurs." One factor that probably re- half, caused by the unreasonable Rather than being the "rule," mains constant for all "develop- actions of the state's transporta- this is one of the major unan- ers," be they individuals who wish don department, resulted in a swered questions in this field of I only to build a retirement home, compensatory award (including the law. Although some cases talk I or large-scale office, shopping interest and attorneys' and expert in these terms (First English dis- center, industrial park. or commu- witness fees) of$3.5 million be- cussed deprivation on "all" use be- nity builders, is that they neither gond the cost of acquiring the cause that is what the complaint in seek nor relish litigation. Litiga- property. that case alleged), the Supreme tion is, in fact, the worst way to re- Court has also defined takings in solve a land use dispute—al- I The New Reality: Limits on terms of infringement on a prop- though sometimes the govern- Regulatory Flexibility erty owner's reasonable, meat leaves no alternative. If reg- investment-backed profit expecta- ulators would remember that they Before even beginning co con- tions and deprivation of economi- represent the interests of all seg- sider the proper approach for tally viable use. If any of these merits of the community (not just measuring regulatory hardship, tests is met, a taking occurs. When the one with the most votes, or I one must have a clear apprecia- it feels the time is ripe, the Su- the one that shares their personal tion of what the Supreme Court preme Court will surely acknowl- view of the future) and would i was attempting to accomplish. edge the necessity for further ex- draft plans and conditions that I After a decade of wrangling over plication. For example, the Court permit rational land uses (those whether a proper case could ever will need either to explain how that permit fair use and return to be found in which to determine deprivation of a substantial por- the owners) then litigation would the constitutionally compelled don of the value of property corn- be unnecessary and all of the nas- remedy for a regulatory taking, ports with reasonable, investment- ty questions about what consti- the Court decided in 1987 to at- backed profit expectations or to tures a taking and how a taking is tempt to settle some thorny issues disapprove some careless Ian- . valued need not be addressed. ; on which lower state and federal - 14 May ;t�)/ • . ' courts had stumbled while await- The goal was to eliminate takings lations. But-such consequences nec- ing action by the Supreme Court. claims through fair treatment of essarily flow from any decision up- Although all issues were not re- property owners, applying the holding a claim of constitutional solved, enough questions were an- strictures of the Supreme Court's right: many of the provisions of the swered torovide iCOrecent decisions. That underlying Constitution are designed to limit P guidance the flexibility and freedom of gov- regulators and property owners. theory appears sadly absent from ernmental authorities and the Just The fundamental underpinning the Roddewig/Duerksen analysis. Compensation Clause of the Fifth of all of the Supreme Court's re- j which tries instead to minimize Amendment is one of them. (96 cent decisions is that government the potential impact of the L.Ed.2d at 268) at all levels—local (First English), decisions. No one will from state (Nonan), and federal (Hodel While one can understand the uous and willconbenefiteous fiogaton. contin- v. Irving, 481 US 704 (1987])— desire of those who favor regula- ; All will benefit by a more realistic had paid coo little attention to the tory solutions to problems to pre- approachchat o ad- rights of regulated property own- serve their flexibility and freedom just old practices,, one one tto the new real- ity attempts cers. Thus, the overall conclusion of action, solutions chat call on rather than one that attempts emerging from the 1987 decisions others to sacrifice too much for to gloss over the differences. is that regulatory abuses must the perceived greater public good end. The Constitution demands ' are at odds with the Supreme fair treatment, and fair treatment Court's philosophy as recently ex- Michael M. Berger is a land use and has too often been denied. pressed in First English: eminent domain lawyer with the Los One resulting breath of fresh We realize that even our present Angeles law Firm of Fadem, Berger& air was the President's Executive holding will undoubtedly lessen co ' Norton. He represented the property Order 12630 (March 15, 1988), some extent the freedom and flexi- owner in the U.S. Supreme Court in requiring all federal agencies CO bility of land use planners and gov- ! the First English case,and filed an am- consider the taking implications of erning bodies of municipal corpora- icus curiae brief in support of the all proposed regulatory actions. dons when enacting land use regu- property owners in the Nollan case. 1"... newasammaratesosocar MEASURING REGULATORY HARDSHIP: ARE CALIFORNIA ELEPHANTS PINK? Richard J. Roddewig and Christopher J. Duerksen n Walt Disney's classic animal- Angeles and Nollan v. California even Berger seems to concede. ed feature Dumbo, there is a Coastal Commission. these two cases raise more ques- critically acclaimed sequence Contrary co Berger's conten- tions than they answer. in which Dumbo gets tipsy and tion. we in no way ignored the sig- Our analysis of First English and enters a phantasmagoric world of nificance of these two recent Su- Nollan differs from Berger's on pink pachyderms on parade. Mi- preme Court decisions. As we one critical point. We do not be- chael Berger in his response to said. the cases "have significantly lieve the two cases can be read our article, "Measuring Regula- I altered the local land use regula- alone. They must be read in con- tory Hardship: Dealing with Real i tory landscape." Indeed, since our junction with five other land use Estate Questions in Takings article focuses on how CO measure cases decided by the Supreme Cases" (Urban Land,January the damages for regulatory tak- Court since 1980: Agins v. City of 1989), seems to have entered the ings, it is hard to understand how Tiburon (1980), San Diego Gas and same world. His rebuttal is typical anyone could conclude that we I Electric Co. v. City of San Diego of the often giddy overreaction of are downplaying the significance (1981),MacDonald, Sommer& some in the development commu- of these new rulings on the tak- Fraser v. County of Yolo (1986). Wil- nity to the U.S. Supreme Court's j ings issue. An analysis of how to liamson County Regional Planning decisions in First English Evangeli- measure damages has really not Commission v. Hamilton Bank of cal Luthern Church v. County of Los : been necessary until now. And. as Johnson City (1985), and Keystone 77__. - _."r' I Mai: 89 15 courts had stumbled while await- The goal was to eliminate takings talions. But such consequences nec- ing action by the Supreme Court. claims through fair treatment of essarily flow from any decision up- Although all issues were not re- property owners, applying the holding a claim of constitutional g right: many of the provisions of the solved, enough questions were an- strictures of the Supreme Court's Constitution are designed to limit swered to provide guidance co recent decisions. That underlying the flexibility and freedom of goy- regulators and property owners. theory appears sadly absent from ernmental authorities and the Just The fundamental underpinning the Roddewig/Duerksen analysis, Compensation Clause of the Fifth of all of the Supreme Court's re- which tries instead to minimize Amendment is one of them. (96 cent decisions is that government the potential impact of the L.Ed.2d at 268) at all levels—local (First English), ! decisions. No one will benefit from contin- state (Nollan), and federal (Hodel i While one can understand the uous and contentious litigation. v. Irving, 481 US 704 [19871)— ! desire of those who favor regula- All will benefit by a more realistic had paid too little attention to the tory solutions to problems to pre- a roach, one that attempts to ad- rights of regulated property own- serve their flexibility and freedom u spt old practices to the new real- ers. Thus, the overall conclusion of action, solutions that call on j itv rathr than one that attempts emerging from the 1987 decisions others to sacrifice too much for to gloss over the differences. is that regulatory abuses must ; the perceived greater public good end. The Constitution demands ' are at odds with the Supreme Berger treatment, and fair treatment Court's philosophy as recentlyex- Michael M. Be er is a land use and has too often been denied. pressed in First English: eminent domain lawyer with the Los One resulting breath of fresh We realize that even our present Angeles law firm of Fadem. Berger& air was the President's Executive holding will undoubtedly lessen to Norton. He represented the property Order 12630 (March 15, 1988), some extent the freedom and tiexi- iowner in the U.S.Supreme Court in requiring all federal agencies to bility of land use planners and gov- . the First English case,and filed an am- consider the taking implications of erning bodies of municipal corpora- . icus curiae brief in support of the all proposed regulatory actions. tions when enacting land use regu- i property owners in the Nonan case. .. ._ . ..- . . . _._ ... MEASURING REGULATORY HARDSHIP: ARE CALIFORNIA ELEPHANTS PINK? Richard J. Roddewig and Christopher J. Duerksen n Walt Disney's classic animat- Angeles and Nollan v. California I even Berger seems to concede. ed feature Dumbo, there is a Coastal Commission. these two cases raise more ques- tions than they answer. in which Dumbo gets tipsy and tion, we in no way ignored the sig- j Our analysis of First English and enters a phantasmagoric world of nificance of these two recent Su- Nollan differs from Berger's on pink pachyderms on parade. Mi- preme Court decisions. As we one critical point. We do not be- chael Berger in his response to I said, the cases "have significantly lieve the two cases can be read our article, "Measuring Regula- I altered the local land use regula- alone. They must be read in con- tory Hardship: Dealing with Real j tory landscape." Indeed, since our junction with five other land use Estate Questions in Takings article focuses on how to measure cases decided by the Supreme Cases" (Urban Land,January the damages for regulatory tak- Court since 1980: Agins v. City of 1989), seems to have entered the ings, it is hard to understand how Tiburon (1980),San Diego Gas and same world. His rebuttal is typical anyone could conclude that we Electric Co. v. City of San Diego of the often giddy overreaction of are downplaying the significance (1981),MacDonald, Sommer& some in the development commu- of these new rulings on the tak- Fraser v. County of Yolo (1986), ;U- nity to the U.S. Supreme Court's ings issue. An analysis of how to liamson County Regional Planning decisions in First English Evangeli- measure damages has really not Commission v. Hamilton Bank of cal Luthern Church v. County of Los been necessary until now. And, as Johnson City (1985), and Keystone T1 ;7.^'r;--.577/ May 89 15 Bituminous Coal Assoc. v. DeBenedic- decided Agins, a case curiously ig- National Trust for Historic Preser- tis (1987). When considered as a nored by Berger. vation as a Planning Advisory whole, the jurisprudence on the The most puzzling and disturb- Service report. Excerpts some- taking issue maps a long and ar- ing part of Berger's critique is his times contain so little explanatory duous trek for anyone determined finding of an implicit assumption detail that misunderstandings can to prove that a particular land use in our article that"regulators and arise. our rep rt, we examine in detail regulation creates an unconstitu- property owners are natural ad- wrought by Firgu a lrsh,.Volchanges g tional ttaking. versaries and all analyses must be g If, as he claims, Berger does not made in the litigational context." and the other landmark Supreme agree with our methodology for In fact, we spend almost half of our Court cases such as Agins and Key- measuring damages. he must un- article explaining how communities stone. We delve into the funda- derstand the difficulties. How can and developers can avoid litigation! mentals of real estate economic anyone who comprehends the Litigation on land use issues is all analysis as it applies to the ques- complexity of measuring damages too often frivolous and unneces- don of measuring reasonable use argue that First English and Milan i sary, and as Berger says, "Riga- I and return and the meaning of put developers in paradise? i tion is, in fact, the worst way to re- reasonable investment-backed ex- solve a land use dispute." pectations. Two case studies apply Our view is not the view from California, Berger's home state. In our experience, however, lid- the analytical routines to a down- Admittedly, manyCalifornia com- gation typically arises out of mis- zoning situation and to a historic munities have tested the limits of understandings between property preservation situation. These the police power—perhaps even, owners and community planning should be of help to developers. officials. The administrative pro- community planning officials. paraphrasing his words, roller- skating too close to the constitu- cess we propose for resolving tak- judes, and attorneys alike.g Berger says the "rule" we posit, tional edge in exercising land use ing disputes is designed to create namely that"[a]11 virtually os and zoning authority. Our view is better communication between namelyuse or orreturn must all from Kansas, Illinois, North Da- i developers and planners and thus reasonable denied the property m before be kota,Texas, and even Virginia, avoid litigation, not create it. As an ledunche prop rt takingowner occurs" for example. where scores of local we said. "administrative hearings are a much more appropriate fo- is actually "one of the major planning commissions, zoning � questions in field of un- boards, and city attorneys in small rum than a courtroom for consid- answered Wre both right this this towns and big cities alike are con- eration of the complicated evi- g dence on such points as adequate point. As we said in the January fused by the First English and Vollan decisions. We have first- return or the tax position of the Urban Land article, the Supreme owners.' hand experience in communities Court has offered little guidance g far on the meaning of its rule. where planning boards have be- Most of the "high stakes 'chick- so e so high court rules. it.is come paralyzed as a result of en' games" that end in litigation Lia general manytatement that will only those decisions, afraid to act on are started by developers' actor- crystallize as the courts apply it in any downzoning proposal no mat- neys blustering that even the a variety of contexts.u article.t ter how minor the impact on de- smallest impact from a regulation the Our it velopment potential. afraid to un- is a taking for which compensa- and thelongerfocureporton which dertake any systematic rezoning don must be paid. For example, batebased,obasicthe hardshipcde efforts, and afraid even to consid- consider a recent controversy in mens analysis.real urge Berger to st- er any new comprehensive plan- an Indiana city where an attorney read the complete report. and ning measures. Often the culprits for a homeowner argued that the a ep nk e p his ilhnts will are developers' attorneys who, denial of an application to tear maybe once a his nke le tn grey. ai misreading what the Supreme down a garage and build an at- has said and not said on the cached one in its place would be taking issue, scare local officials an unconstitutional taking of all with tales of pink elephants. reasonable use of the property. Maybe we need to repeat a ma- The city, confused by the recent jor point of our article: while the Supreme Court cases, was ready J. Roddewi is a real estate cases should not be dismissed to accept that argument! Richard consultant and land use a tornev with lightly, they portend no dire con- Perhaps we should not entirely Clarion Associates. Inc.. in Chicago. sequences for careful local land blame Berger for overreacting to He chairs the American Bar hicag a- use planning.They must be taken our analysis, which is based on a lion's land use. planning,and zoning seriously, but they are only an- much longer work entitled Re- committee.Christopher J. Duerksen is other round in what promises to sponding to the Takings Challenge director of airport gateway develop- be a long explanatory process that (1989), published by the Ameri- mens for the city of Denver,and is a began when the Supreme Court can Planning Association and past chair of the same committee. 16 May 89/ 11711-,T,!, ...:,'r', tint A COMMUNITY'S COMMERCIAL LAND Is "How Much" a Matter of Standards? 0110111 ; David B. Van Horn -r Local government planners and kets have changed significantly survey conducted by the City of developers usually can agree that over the past three decades. Coral Gables Planning Depart- .•— a community needs some un- In 1983, the American Planning ment. The average amount of de- developed commercially zoned Association analyzed 22 land use veloped commercial land as a per- land. How much land should be plans and studies from small tentage of all developed land was so designated in a particular corn- cities. It published the results of 7.7 percent. This figure falls be- - munity is often hotly debated. that analysis and of a 1981 analy- tween the average of 9 percent re- Planners have several methods sis of land use ratios in 46 of the ported for large cities in 1981 and available to estimate the amount 50 largest U.S. cities that was done the 7 percent reported for small *; of commercial land that should be by the Phoenix Planning Depart- cities in 1983. The ratios in these designated on a future land use ment in "Land Use Ratios" (PAS medium-sized cities fell between map. Reference to standards— Memo 83-5). The small cities sur- 4.3 percent (Cranston, Rhode Is- land use ratios—is one method. vey showed an average of 7 per- land) and 11.7 percent (Grand cent of developed land area ac- Prairie, Texas). The survey also commodating commercial uses. yielded a measure of commercial Developed commercial land as a acres per 1,000 residents. This ' Existing Studies percentage of all developed land measure averaged 12.4 acres and ranged from a low of 2 percent ranged between 6.7 acres (Coral A number of studies relate the (Berlin, Wisconsin, and Dan- Springs, Florida) and 15.6 acres amount of commercial land in dridge, Tennessee) to a high of 25 (Arlington Heights, Illinois). cities or counties to their total percent (Franklin, Louisiana). For land area and developed land the large cities, the average figure Analytic Issues area. Although both academics was 9 percent, with the range of and practitioners in the planning ratios from 2 percent (New York Varying definitions of commer- profession generally acknowledge and Honolulu) to 25 percent cial uses and differences among that land use allocations should be (Boston). the communities studied can based on the characteristics of a In 1987, I surveyed commercial make direct comparisons difficult particular community, these stud- land use ratios in several popu- and subject to errors of inter- les do provide a framework of em- bus, high-growth-rate counties. pretation. This problem of corn- pirical evidence for the compara- Because these counties contain parability underscores the need tive analysis and projection of large amounts-of nonurban land, for accurate local data. However, commercial land needs. In a study acres per 1,000 resident popula- very few local governments have ----- of 53 cities, Harland Bartholomew non were selected as the compara- an accurate land supply tracking found that the percentage of corn- nye measure of commercial land system. I used a recent survey by mercial uses in the total developed use. The analysis of existing corn- Scott Bollens and David God- area ranged from under 3 percent mercial land use yielded the fol- schalk of computerized land mon- to just over 4 percent (Land Uses lowing ratios: itoring systems ("Tracking Land In American Cities, Cambridge, Supply for Growth ,Management," Harvard University Press, 1955). Data Acres/1,000 Journal of the American Planning As- John H. Riedercorn and F.R. County Year Population sociation, Summer 1987) to identi- Hearle found that commercial Broward, fy counties from which I might uses comprised an average of 4.8 Florida 1987 11.82 obtain data for my analysis of percent of developed land area San Diego, large,g rg high-growth communities. and 3.7 percent of total land area California 1986 3.88 Three provided comparative data within the limits of the cities they Dade, on commercial and industrial land studied (Recent Land Use Trends in Florida 1985 5.29 use, but several others did not, be- Forty-Eight Large American Cities, Davidson, cause of problems with validity, Rand Corporation, 1963). These Tennessee 1980 7.68 comparability, or lack of historic studies have limited use because data. they focus on the characteristics of I also analyzed raw data on 11 The two land use ratios I have individual cities and because mar- I medium-sized cities from a 1987 I described here—developed corn- 36 February 891 1s77. all Figure 1 Commercial Land Ratios, Selected U.S. Cities, 1987 Land Total Developed Area Commercially Developed Area 1987 Area Percent of Percent of Acres/1000 City Population Sq.Mi. Sq. Mi. Land Area Sq. Mi. Developed Area Population Arlington Heights, Illinois 69,600 16.6 15.7 94.6 1.7 10.8 15.6 Columbia, Missouri 66,554 44.5 22.3 50.1 1.8 8.1 17.3 Coral Springs, Florida 67,000 22.2 9.8 44.1 0.7 7.1 6.7 Cranston, Rhode Island 76,021 27.7 20.8 75.1 0.9 4.3 7.6 Escondido, California 86,861 34.7 19.8 57.1 1.6 8.1 11.8 Fort Collins, Colorado 87,740 35.4 19.8 55.9 1.5 7.6 10.9 Grand Prairie, Texas 94,819 68.0 19.7 29.0 2.3 11.7 15.5 High Point, North Carolina 61,509 34.4 23.7 69.0 1.4 5.9 14.6 Lake Charles, Louisiana 77,476 23.2 14.6 62.9 1.7 11.6 14.0 Nashua, New Hampshire 78,000 30.9 23.1 74.8 1.4 6.1 11.5 Ogden, Utah 68,638 28.2 21.7 7.7.0 1.5 6.9 14.0 Mean 76,462 34.9 19.5 55.9 1.5 7.7 12.4 Sources: City of Coral Gables Planning Department,unpublished material. 1987;and David B. Van Horn. mercial land as a percentage of all fice space per acre. An acre of merit projections and economic developed land and developed commercial retail land in Broward forecasts, and adjusted for phvs- commercial acres per 1,000 resi- County contained an average of ical and socioeconomic variables. dents-are based on existing land 7,961 square feet of space, corn- comparative land use ratios may uses. Another measure-land in pared to 6,332 square feet in provide a quantitative basis for de- and designated for commercial Dade County. While Broward termining the sufficiency of a use as a percentage of total land County had a higher average in- community's supply of commer- area-may also be useful, though tensity of retail use, Dade County sial land. As improved land use less specific than developed land had more intensive office use on data bases and tracking systems ratios. Ideally, a local analysis of average: 17,592 square feet per become more widespread, addi- commercial land needs would acre versus 15,152 square feet in tional research on land use ratios distinguish between developed Broward County. can be conducted. commercial land and vacant land Comparative commercial land Eventually, planners should be designated for commercial devel- P able to manipulate socioeconomic gn ratios can provide indices fora and physical variables from an ex- community Also, it should, at a mini- community endeavoring to esti- P y mum, differentiate between corn- tensive set of validated, corn- mate future commercial land arative land use ratios derived mercial retail and commercial P needs. Use of this methodology from different communities to de- office uses. Land that is not desig- requires consistency in definitions velopa workable range of com- nated commercial, but that is like- g lv to be submitted for rezoning of the ratio measures. That is, mercial land standards. But they should be considered. Note also comparisons must use the same cannot do that vet without an in- datathat acreage standards do not re- sets; for example, total de- tensive research effort. Communi- g veloped land to commercially ties desiringto determine their fu- developed commercial use intensity: the developed land, or total land to cure commrcial land needs by amount of commercial floor space developed plus designated corn- reference to other communities' is not necessarily proportional to mercial land. the amount of land that is corn- commercial land ratios still must mercially developed. Higher al- Applied to a specific communi- undertake specific and locally de- lowable floor/area ratios or more ty, comparative ratios from other tailed research. ■ intensive site development means communities also must be ad- more commercial space per acre. justed to account for differences For example, I analyzed 1985 in use classifications and in the property records in Broward and communities' socioeconomic char- David B. Van Horn is president of Dade Counties, Florida, to calcu- acteristics. Combined with ocher Van Horn Associates. Inc..a Florida- late the average amount of corn- measures of growth potential, based planning and development eco- mercial retail and commercial of- I such as population and employ- I nomics consulting firm. 17-17v ifi0 Rei r+'7./ February 89 37 ',yjv - ✓ - LOTS OR CROPS: THE LAND SUPPLY DILEMMA •, Robert G. Healy "potential cropland"—land that is not in crops. but s that could be economically converted to crops if de- Although builders and preservationists disagree mand warranted. So why should anyone worry about over many issues, most would probably affirm that agricultural land supply? the United States has a "land supply problem." But x,11 of the foregoing arguments are simple and g the two groups define very differently the meaning straightforward—and that is the problem with them. of that phrase. Most apparent to builders and home- The one clear thing about the urban land market is buyers is the high price of building lots. And, some- that it is an exceedingly complicated place, one that ` times, physically suitable and legally buildable lots defies easy generalizations and resists attempts at r:',' `, t;. seem almost unavailable in the marketplace. But an- quantification. - - other part of the problem. as seen by urban plan- ,_. .` ners, environmentalists, and some people in the agri- _ cultural community, is rapid urbanization that Lot Shortages removes productive land from farming and forestry Cand calls into question the future prices and avail- There are many reasons why building lots should ability of food and fiber. be scarce or expensive, but a lot of them have noth- Builders and planners alike would like to see both ing to do with Iota! government land use policies. y�< an abundant supply of building lots and plentiful First• the land market responds sluggishly to rapid - food. Practicality argues for a middle ground—adop- changes in demand for land. Unlike some other tion of an "insurance strategy" that recognizes the commodities, land tends to move into the market as =r merits of providing suitable building area while pre- much according to the personal needs of the pre- serving valuable farmland. Reaching this ground vious owner as in response to higher prices. This means delineating and resolving the two sides of the characteristic, which economists call "supply inet- land use issue. asticitv," means that relatively modest accelerations in demand can lead to dramatic increases in land A Paradox prices. Other factors abound. One is speculation. Rising Both the lot supply and the agricultural land sup- land prices cause owners to think that future in- ce, ply arguments contain some paradoxical features creases are likely. In the short run, this means that that have led some to dismiss both out of hand. owners may actually reduce their supply of land to }:• Many people believe chat misguided local govern- the market in response to higher prices. This is es pe- mental policy—specifically, no-growth or slow- cially true when holding costs are low, as is true for a s- •-.'.-_ growth attitudes of affluent homeowners—created lot of farmers. Another factor is that land differs in `- the lot supply shortage. Relax the growth controls location and other characteristics from parcel to par- _.-..,,,,.i . and the problem will go away. Yet lot supply prob- cel. A metropolitan area might have a plentiful sup- >.. lems, or at least high prices,seem CO afflict commu- ply of land viewed in the aggregate, but may have a }; nities across the country, not just the small number severe shortage in the small number of areas where _;-1=;;:; of communities that have aggressively tried to limit new homeowners really want to buy. The degree of 1---;"::''' their rates of growth. Moreover, in nearly all metro- monopoly power in the land market may also plan a ' .:'-i' politan areas, huge acreages of residentially zoned part.A given amount of raw land may he ample if it ',,r�'', • land lie vacant. How can it be that building sites are is in the hands of hundreds of landowners, but total- � Y: : so scarce when most American cities contain so much ly inadequate if ownership is concentrated in only a undeveloped land? few hands. Similarly, inflation is a factor largely out s' The cultural land supply argument is similarlyof local governments'control. The price of raw land , � PP g g baffling. One can point out that after a century of has tended to go up rapidly during periods of high l rapid urban growth, the total amount of urban and inflation, as experienced during 1973 to 1981. 14, i built-up land, nationally, is only 47 million acres. But governmental factors do affect land supply. --• about 2.5 percent of the land area of the continental Government can reduce the amount of legally ''''1,----:- United States. Even if land in urban uses doubled buildable land, as in the case of urban limit lines or " -- (which, given current rates of population and hous- floodplain zoning; it can shift costs of infrastructure ing growth, is pretty unlikely), such uses still would from the municipality to the lot buyer, as in the case occupy only a small total area. Another argument is of sewer charges or park impact fees. Government - -�Y . that the agricultural land base can be expanded to also can set costly site development standards, such -s replace land converted to urban use. The most re- as hillside-grading requirements, and can specifically cent inventory of land resources by the U.S. Depart- limit the annual number of lots approved, or it can ‘,„,i, ment of Agriculture identified 153 million acres of lengthen the time it takes to get a lot approved. > - 34 Fehniarvy5 / TiTiTITITPrifili' These factors affect both the nature ;inti the cost oI' farmland than now exists would be required. At a 'r the average lot. percent growth rate. cropland reserves would he all Further confounding any understanding of the lot but exhausted. supply side (if the land use issue are apparently sig- But even if export growth is only modest. and ag- nificant interactions between governmental and turn- ricultural productivity grows fairly rapidly. there are governmental factors. A ULI study in Jacksonville. three additional issues u>consider in farmland sup- Florida, for example. found that lot prices were not ply. First, as with residential neighborhtxxls,some affected very much by relatively restrictive land use acres of farmland are more desirable than others. controls, because the area's housing market was so Also, there is a limited supply of land with particular weak. Thus, an honest evaluation of the validity of characteristics. such as citrus-growing land in central the lot supply argument must account not unl• for Florida. Little is known about what can be called the the degree of governmental regulation but also for •"shift:ability issue" in agriculture. the many nongovernmental factors influencing= an A second issue involves questions of the "critical area's land market. as well as the interaction between mass" for agriculture and the interspersing of agri- governmental and nongovernmental tactors. cultural and nonagricultural land uses. Below sonic minimum number of farms, agricultural activity in an arca does not have the critical mass to sustain int- The Cropland Shortage element dealers. fertilizer distributors. and farm- The complexities of the other side of the land use oriented banks. Furthermore, modern agriculture issue coin—agricultural land supply—rival those of and residential developments do not make very good lot supply. Most people would agree that the issue of neighbors. ques- adequate food supply is a long-term one. It is not A third issue making farmland supply more wise to look just at the next 10 or`_'0 years and not notable involves the 13 3 million acres of 'potential worry about land beyond that. But the need to take a cropland." There is some indication that this land is long-term view creates some major difficulties in inherently less productive, and almost certainly more evaluating agricultural land supply. Dozens of pro- erosive. than the land now being farmed. A fair jections of future demand for U.S. agricultural prod- amount of potential cropland is classified as wet ucts have been made. any of which could be numipu_ lands, and environmentalists have a stake in seeing laced co show anything from a crisis to a glut simplythat this land is not convened. by making alternative. quite defensible. assumptions Even if overall projections of agricultural land about two factors. supply and demand are relatively favorable. there- One factor is the future level of exports. At this fore, a case could be made against converting a,grt- time one out of every three acres of U.S. farmland cultural land to building lot s. produces for export. The future course of U.S. farm exports depends critically on such things as the fu- An Insurance Strategy ture value of the dollar relative to foreign currencies. This discussion has accented the difficulties in un- agricultural policies of foreign customers and coin- derstanding both the lot supply and the agricultural pecitors. and the ability of foreign consumers to sell land use arguments. The complexity of urban land the United States enough manufactured goods to get markets and of long-term agricultural projections ar- the foreign exchange needed co buy U.S. farm gues for a healthy skepticism both toward those who goods. If pessimistic assumptions about exports are dismiss the issue and those who claim that a national made and projected to the year 2020 or 2030. the crisis is looming. In at least reasonable light. this United States has no need to worry about urban con- skepticism can yield an "insurance strategy". Even if version of farmland. If an optimistic viewpoint about aggregate figures seem to indicate an ample supply exports is assumed. then a true crisis is looming. of building lots in an area. the uncertainties seem to The second important variable is the rate of warrant continued efforts to see both that govern- growth in agricultural productivity. Over the last 73 mental regulations do not impose costs dispropor- years. growth of productivity in agriculture has var- tionate to benefits and that local land markets work ied between about 2 and 3 percent a year. Productiv- efficiently. Also, even if agricultural land seems plen- itv, which grew rapidly in the 1960s and rather slow- tiful today, a bit of caution is in order to ensure the lv in the 1970s. now seems to be picking up again in continuance of the land's abundance for this genera- the 1980s. Some experts on agricultural productivity tion and the next and the next.■ are optimistic: others. equally expert. are quite pessi- mistic. All have good reasons. The important point is Robert G. Healy is a senior associate with the Conservation that small differences in assumptions about produc- Foundation in Washington. U.C.These remarks were orig- tivitv, have enormous impacts on agricultural needs inally presented at the joint ULI/Lincoln Institute of Land if carried ow to the long term. For instance. in the Policy/Consen.uion Foundation seminar on "The New case of a 3 percent growth rate to the year 2020, Generation of Community Building"that was held in Sep- given current population and export projections, less (ember 1984. Il;;r,i;W . ..n I r February 85 35 Incentive Committee (Draft) February, 1988 I. Introduction Purpose of the Report • The Incentives Committee was appointed to review and analyze various incentive techniques proposed in the "Plan for Implementation" reports developed by the Austinplan Task Groups and to consider incentive techniques used successfully in other parts of the country and to make recommendations for incentives that might be viable for use in Austinplan. In this report, the committee provides examples to the Steering Committee of incentives that could provide additional flexibility and benefit to the private sector in exchange for the provision of specific public benefits. The committee emphasis is on incentives which are received through the land development process, although consideration was given to other incentives. In this incentive system it should be quite clear that the community is not giving away benefits to developers without receiving some reciprocal advantages. The City is granting permission to do something different than that which is customarily required in return for some action by the developer that assists the community in acheiving objectives identified in Austinplan. Once adopted by the Steering Committee, the Incentive Committee examples will be considered for integration into the Land Development Code. It is hoped that the inclusion of incentives will help implement Austinplan goals and objectives by encouraging planned growth and development. History of the Committee The Incentives Committee is comprised of twenty appointees representing all of the Austinplan Task Groups. The Committee held eleven meetings through which it completed a two-phase program which began with education and concluded with the development of incentive technique examples. The Committee received presentations from three experts familiar with incentive techniques used in Austin as well other parts of the country. In addition, the Committee was provided with an extensive collection of literature on the subject of incentives. ( A list of the speakers and a bibliography of the educational materials appear as appendix (i) and appendix (ii), respectively. ) The Committee members also exchanged information, ideas and perspectives among themselves during question-and-answer sessions with the speakers and throughout the subsequent meetings. 1 Incentive Committee (Draft) February, 1988 III. Discussion of Incentive Techniques Considered Explanation of an Incentive System An incentive system is a method of achieving public goals and objectives through the provision of development potential beyond that which is allowed in current development regulations. Thus, incentives will reward those who address public goals and objectives, rather than proceeding negatively through penalties for noncompliance. San Francisco and New York were among the first cities to use incentive systems to encourage open space development in their downtown areas. Their systems have been refined and expanded to include incentives for plazas, ground floor retail, building design features, and "affordable" housing. Dallas uses an incentive system that allows up to an additional 4 to 1 FAR for providing open space in the CBD. Phoenix and Memphis utilize incentives to encourage infill development and housing. In Phoenix, greater building heights and densities are allowed in exchange for infill residential development. Other cities with incentive systems include Seattle and Bellevue, Washington; Milwaukee, Wisconsin; Long Beach and San Diego, California. A successful incentive system must be made attractive enough to encourage its use. Cities with slow growth, such as Milwaukee, have seen little demand for developmentwith the consequence being that their systems have not been used. A successful incentive program must also have well defined criteria and review processes to ensure an equitable and efficient system. Finally, before an incentive system is institutionalized, the existing regulations must be analyzed to insure that existing standards do not limit the use of the incentive system. Existing Incentives used in Austin The City of Austin has four existing ordinances that offer incentive measures to developers in exchange for some amenity that is desired by the City. These ordinances are the Comprehensive Watershed Ordinance, the Capital View Corridor Ordinance, the Hill Country Roadway and the Waterfront Overlay District Ordinance. 6 Incentive Committee (Draft) February, 1988 Other Major Incentives Discussed The Incentives Committee identified several incentive techniques, some of which have been attempted in Austin. The majority of the techniques are used in other cities and may be appropriate for use by the City of Austin. A discussion of these incentives and their applications are provided in this section. Transfer of Development Rights The concept of TDRs is to allow developers the ability to transfer a portion of their development rights to another site. In a broader application, TDR allows developers flexibility to transfer a portion of their development rights to a second site. The receiving site may be limited to adjacent tracts or designated receiving districts. TDRs are beneficial in reducing market pressure on properties which the public wishes to preserve. Several communities, including Dallas and Denver, have TDR ordinances for the preservation of historic sites. Oklahoma City is considering the use of TDRs for the preservation of floodplains. In Albuqerque, the city is working on a TDR ordinance for preservation of open space and agricultural lands. Austin has an adopted TDR ordinance for the protection of Capital View Corridor, but actual transfers have not yet occurred. Usually TDR's will not work very successfully in a soft real estate market. There must be a strong demand in the market or development pressure on property to make development rights transfer attractive to developers. One of the most successful TDR systems in use today is in Montgomery County, Maryland where TDRs are used for farmland preservation. The Montgomery County Comprehensive Plan identifies 14,000 acres of "rural density transfer zone" where one lot per 25 acres is allowed. Up to one development right per 5 acres in this zone may be transferred to designated receiving areas. The County closely monitors the receiving areas to ensure TDR densities are compatible with existing residential densities and that the carrying capacity of public services is not outstripped. A successful TDR requires a growing city to ensure that awarded transfers do not lose value. If developers anticipate a weak real estate market they will be unwilling to transfer their rights to other properties. A successful TDR system may involves high administrative costs since legal records of transfers must be kept. In some cases, in a TDR system there is a great deal of time spend negotiating between the City and developer. 11 Incentive Committee (Draft) February, 1988 Bonus Density This incentive involves increasing density for a developer in exchange for the developer providing public amenities. The bonus is granted to the developer by relaxing the maximum density normally permitted in the zoning ordinance. The developer typically receives increased FAR's for providing amenities such as sidewalks, open space, public plazas, arcades, rooftop observation areas, inclusion of housing and other similar amenities in the development. In the case of housing, allowable densities may be granted on the basis of the project's accommodation of desired design amenities such as scale, security, sunlight, recreational space and etc. This incentive can entices the development community to provide amenities in exchange for increased development potential. This action allows a city to reduced capital expenditure cost to provide the amenities itself. Because of the trade off of amenities for higher density a side effect in some areas of a City may be increased traffic congestion at the development site. Clustering The cluster concept permits the developer to build at higher densities in exchange for dedicating a portion of the development site for open space and recreational uses. Clustering allows the developer to develop lots smaller than those specified in the zoning ordinance, provided the land saved is reserved for permanent common use. The advantages of this concept is preservation of open space and park area. Also, development cost is usually lower with the cluster concept. Major drawbacks are increased density per acre and limited on street parking for the residents of a clustered development. Fast Tracking This technique involves utilizing the one-stop-shop center to expedite those projects meeting the City's objectives. In the case of those projects providing affordable housing or employment, the fast tracking process can be used as an incentive to encourage this development. One of the main advantages of this incentive is lower cost to developers. This incentive promotes earlier completion dates of projects involving affordable housing and other projects meeting the goals of the City. 12 Incentive Committee (Draft) February, 1988 IV. Recommended Incentive Examples The Committee's ranking of the possible incentive techniques resulted in identification of eight priority incentives. This information was expanded into incentive examples shoving possible exchanges of bonuses and benefits that could occur between the City and developers. The Committee decided to allow flexibility in the examples and to omit exact percentages. The report focuses on the elements that may be considered in the exchange. The possible incentive techniques shown below will be presented to the Integration Committee as examples to be considered for implementing Austinpian. These incentive examples are based on land use levels being uniformly applied. Within each land use level there is a range of density from low to high. The incentive examples are not intended to provide a bonus that would push development beyond one land use level into the next higher level. Instead, the incentive increment is a percent of the range between the low and high values of that land use level. If incentives cause land use levels to be exceeded, this could negatively affect the City's ability to plan for infrastructure to meet future demand. Although there are existing incentives in some of the City of Austin Ordinances, the codification process anticipated through the development at the Land Development Code should produce a streamlined development regulation that will include a compatible set of incentives. It is anticipated that these incentive examples can provide a basis for assembling an incentive system for the City of Austin. The Committee also recognized that there may be some elements not represented by the proposed incentives. Those elements should be addressed with other techniques and evaluation of other incentives for future use. 16 Incentive Committee (Draft) February, 1988 Expanded Incentive Categories General Statement: In all cases, bonuses will not grant more density or FAR than 100% of the range possible in any Land Use Level. The X density is a percentage of the range; ie. - In Level 4, if the range is 6-10 SF Detached Units/acre, then 50% of the range is equal to 8 SF du/ac. High priority 1. Density bonuses to encourage the clustering of units and increased amounts of open space. a. Grant density bonus to increase the amount of available open space throughout the City. Example - ---% OF THE RANGE DENSITY BONUS FOR EACH ---% OF THE SITE RETAINED FOR PERMANENT OPEN SPACE ABOVE THE CITY'S NORMAL REQUIREMENT. b. Credits for additional FAR bonus for preservation of scenic vistas, viewing points, and corridor dedication. Example - NO EXAMPLE WAS IDENTIFIED. c. Grant setback flexibility to preserve open space and significant site features consistent with a Community Open Space Plan or Scenic Vista Plan. Example - FOR FEATURES IDENTIFIED TO BE PROTECTED, SETBACKS CAN BE SHIFTED AS LONG AS TOTAL SETBACKS REMAIN THE SAME AND MEET COMPATIBILITY STANDARDS. 2. FAR/Density bonus for exceeding site development performance criteria for environmental management. a. Storm water management (Floodplain Protection) Example - UP TO Z OF RANGE FOR TOTAL NON-MODIFICATION OF 100 YR. FLOODPLAIN WHEN USING REGIONAL DETENTION PONDS , PERVIOUS PAVEMENT, AND TREATMENT OF STORM WATER RUNOFF. b. Environmentally sensitive development Example - UP TO ----% OF ALLOWABLE RANGE FOR ENVIRONMENTALLY SENSITIVE SITE DESIGN - SUBJECT TO PLANNING COMMISSION APPROVAL. 17 Incentive Committee (Draft) February, 1988 c. Steep Slopes Example - FOR NOT BUILDING ON SLOPES OF 15% OR GREATER UP TO ----% OF THE RANGE WITHIN TOTAL DEVELOPMENT POTENTIAL OF THE SITE. 3. Density bonuses around transit stations to promote alternative transportation modes. a. Increased density incentives for locating development at transit facilities. Example - BONUS FOR CONSTRUCTION OF TRANSIT RELATED ON SITE IMPROVEMENTS OR FACILITIES WITHIN ONE-QUARTER MILE OF A DESIGNATED NOTE. Example - ADDITIONAL FAR BONUS FOR MIXED USE COMMERCIAL/RESIDENTIAL DEVELOPMENTS WITHIN ONE-TENTH MILE AROUND A DESIGNATED NODE. b. Reduction of parking requirements. Example - NO EXAMPLE WAS IDENTIFIED. 4. Capital Recovery Fee waiver in areas designated for preferred growth and concentrated development. a. Waiver of CRF's. Value: By waiving CRF's in the areas of "preferred growth", the City can reduce costs significantly, particularly when coupled with utility conservation. The waiver of CRF would be minimal in the suburban area and the Management and Redevelopment areas. COMMENT - STAFF IS VERIFYING EFFECTS ON BONDING AND DISCUSSING ADVISABILITY WITH WATER/WASTEWATER DEPT. b. Refund contracts for residential construction. COMMENT - ONLY A FEW YEARS AGO DID THE CITY OF AUSTIN STOP PAYING FOR WATER, WASTEWATER, AND DRAINAGE FOR NEW DEVELOPMENT. c. Set up capital recovery fees (CRF) for water, sanitary sewer, and drainage that reflect the actual costs of installation. Example - IN THE SUBURBAN CLAY SOILS, LINE INSTALLATION AND DRAINAGE IMPROVEMENTS ARE FROM 10 TO 100 TIMES LESS EXPENSIVE THAN SIMILAR INSTALLATIONS IN SHALE OR LIMESTONE AND THE CRF'S MIGHT BE STRUCTURED TO PASS ALONG THESE SAVINGS. 18 Incentive Committee (Draft) February, 1988 d. For development plans consistent with Austinplan, seek a simultaneous review by all boards and commissions of development plans. Example - HAVE A CONSISTENT AND LOGICAL SCHEDULE FOR BOARDS AND COMMISSIONS THAT RESULT IN EXPEDITING PROJECT REVIEW. 5. Fast tracking development plans to increase Austin's economic development and competitiveness. a. EXAMPLE - EXPEDITED CONSENT AGENDA AND SPECIAL ASSISTANCE WITH STRICT TIME SCHEDULE REVIEW, AND APPROVAL OF SITE PLANS THAT ARE CONSISTENT WITH AUSTINPLAN, AND REQUIRE NO ORDINANCE VARIANCE OR EXEMPTION. b. EXAMPLE - EXPEDITED CONSENT AGENDA AND SPECIAL ASSISTANCE WITH STRICT TIME SCHEDULE REVIEW, AND APPROVAL OF TRANSITIONAL PROJECTS THAT ARE CONSISTENT WITH AUSTINPLAN, AND REQUIRE NO ORDINANCE VARIANCE OR EXEMPTION. c. EXAMPLE - EXPEDITED CONSENT AGENDA AND SPECIAL ASSISTANCE WITH STRICT TIME SCHEDULE REVIEW, AND APPROVAL OF PROJECTS IN ECONOMIC DEVELOPMENT TARGET AREAS THAT ARE CONSISTENT WITH AUSTINPLAN, AND REQUIRE NO ORDINANCE VARIANCE OR EXEMPTION. 6. Density or FAR bonus for dedication or provision of public facilities or consolidated land for public parks beyond ordinance requirements. a. Density or FAR bonus for public facilities provided by private developers meeting the following criteria: 1) excluding infrastructure, 2) consistent with an approved facilities plan, and 3) within the same service area of the facility. Example - ---X OF THE RANGE DENSITY BONUS FOR EVERY $---- VALUATION GIVEN. b. Density bonus or FAR to developers to consolidate land dedications for implementing the City's Park Plan. c. Density bonus for dedication of acceptable site for fire, EMS, and library or for equipping fire, EMS,and library facilities. 19 Incentive Committee (Draft) February, 1988 Example - (I. ) DIRECT TRANSFER OF COMPARABLE UNIT-FOR-UNIT OR FAR AMOUNT FROM THE DEDICATED SITE TO THE REMAINING ORIGINAL SITE. (II.) ADDITIONS FOR CAPITAL EQUIPMENT FACILITIES, GRANT A X--- DENSITY INCREASE FOR EVERY $--- VALUATION GIVEN. - d. Density bonus for dedication of park land or open space exceeding ordinance requirements. Example - ---X OF THE RANGE DENSITY BONUS FOR EACH ---X OF OPEN SPACE ABOVE THE CITY'S NORMAL REQUIREMENTS. e. Substitution of park facilities or improvements for acreage dedication, when such facilities or improvements are consistent with the Park Facilities Plan. Example - BUILDING A PAVILION IN LIEU OF PARK LAND ACREAGE 7. Alternative development techniques in the downtown area or other appropriate zones to encourage greater pedestrian emphasis and public space. a. In exchange for establishing linkages between developments in the downtown area provide some design flexibility congruent with the downtown plan. Example - WIDER SIDEWALKS OR OTHER LINKAGES AND AMENITIES IN EXCHANGE FOR CHANGING SETBACKS AND HEIGHT REQUIREMENTS, FAR BONUSES OR NO/REDUCED FEES. b. Encourage plazas, pedestrian-oriented frontage, art and landscape features, enclosed plazas, arcades, underground parking, major pedestrian corridors, sculptures, water features, residential uses, and marquee by changing setbacks and height requirements,FAR bonuses and no fees. Example - DIRECT TRANSFER (WITHIN THE SAME SITE) GIVEN FOR AREA DEVOTED TO PUBLIC SPACE CONSISTENT WITH A DOWNTOWN URBAN DESIGN PLAN. ADDITIONAL BONUSES SHOULD BE DISCRETIONARY FOR SCULPTURE, UNDERGROUND PARKING ETC. 8. Transfer of Development Rights to preserve or create open space and promote environmental management and to implement Austinplan. 20 Incentive Committee (Draft) February, 1988 a. Preserve environmentally sensitive areas by use of TDR. Criteria I. THE OPEN SPACE MUST BE AN IDENTIFIED PRIORITY. II. THE DENSITY SITE TO BE TRANSFERRED MUST BE LARGE ENOUGH TO MEET THE CITY'S ADMINISTRATIVE COST. III. THE OPEN SPACE MUST BE PLACED IN PERMANENT PROTECTION THROUGH DEDICATION, EASEMENT, OR SOME OTHER APPROPRIATE MEANS. IV. DENSITY OR FARS WOULD BE ALLOWED TO TRANSFER TO ANY DESIGNATED NODE, GROWTH CENTER, OR THE DOWNTOWN AS LONG AS IT DOES NOT EXCEED THE UPPER LIMIT OF THE RECEIVING LAND USE LEVEL RANGE. V. THE AMOUNT OF CREDIT TRANSFERRED CANNOT EXCEED THE DEVELOPMENT POTENTIAL OF THE ORIGINAL SITE. 21 PLANNING The Advent of Traditionalism in Community Planning recent article in The Atlantic elude such traits due to minimum lot By James W. Wending, AIA Monthly struck a responsive sizes specified by zoning districts.mar- James WentlineiArchitects chord within the residential ket demand for privacy: the propensity development community. In the cover for most families to own at least tl.to story of the March issue. author Phillip automobiles. and homeowners' unwii- lluch has been written recently about Langdon strongly argues that accepted lingness to sacrifice the convenience of returning to traditional values in land tenets of community planning have pro- the private automobile. planning and development.A nation- duced predictable. look-alike subdivi- Traditionalism has already emerged • ally known architect and land planner sions that might be characterized as as a dominant theme in residential ar- sterile and downright boring. He chitecture as evidenced by design re- offers his thoughts on the application further asserts that housing consumers tiecting the vocabulary of history and of traditionalist thinking to contem- long for the type of community design regionalism. While the movement is porary development. found in the quaint, small towns firmly entrenched in architecture. it is throughout America—with their main not nearly as obvious in planning prat- streets. parks. and friendly neighbor- tice. a fact easily attributed to the ma_- hoods. nitude of financial risk undertaken by Perhaps the stock recipe for planning community developers. Community new communities has become all too developers' capital exposure far =- familiar: subdivide the land into self- weighs that of residential builders who contained development "pods- made can afford to be more adventurous with accessible by a loop collector street: new design trends. Further. local zon- develop an entry statement and ar- ing and subdivision standards and pub- chitectural theme to be carried out lic resistance to increases in density throughout the various housing types: prohibit many of the traditionalist ob- and build an amenity area as a focal jectives such as narrow streets. mixed point with appropriate facilities for a uses. increased density. and a more selected market segment. Not surpris- generally compact development pat- ! ingly. some planners—and develop- tern. ers—favor a new approach. A significant breakthrough for The traditionalist planning move- traditionalist planners is the develop- ment is attempting to recapture the best ment of a prototype called Seaside qualities of America's small towns and along Florida's Gulf of Mexico coast incorporate them into contemporary directly west of Tallahassee. This well subdivisions and new master-planned publicized resort community has communities. These qualities include proven academically and commercially pedestrian-oriented environments: streets successful for its progressive de- and other shared outdoor spaces that veloper. Robert Davis. It offers an are inviting and well defined: and a example to be visited. reviewed• and de-emphasis on the automobile as an analyzed so that others can incorporate • element in the landscape. New low- to its best ideas into conventional new • medium-density communities rarely in- communities. Land De%c lohnicnt December I'S' l wr> t \', : t �" ter` I --\ toil do 6Criticism of Seaside focuses on theh / c ^m characteristics endemic to resort corn- Y munities and specific to Seaside. In re- �,�" Ir ,.Si`, Y;P� ,�/:4 sort developments, the target market i 'k..: -A . sir I °- .t; j generally consists of well-to-do buyers \` ;', of second homes. Further. Seaside's \ r.'/ .:a , ;_* \. I developer benefited from inheriting the \'�� t, i .`-is ,�, �, land, thereby eliminating acquisition a• 1'i f C ' costs and significantly reducing land c- 't.-` 4. ` 4_a if- �' development costs. More importantly, \ °r :rt — outright ownership of the land freed the ' .,4„ ..� . = c developer from adhering to the tried- . " \ �� and-true ideas often required by len- r_ ? • . - ders. Nevertheless, the majority of de- •., y r sign principles exhibited at Seaside and \_ -�...:E_ discussed below are directly applicable �-=-^ Y to mainstream planning of new corn- ....i(' r� munities. \, \' •• •,nnm J.7f, Integration of Uses ---____---. While homebuyers may not be ready • to move "over the store" as was com- mon on Main Street, the gradual shift .1 74-acre parcel in Connecticut combines townhouses with village retail and to mixed-use development continues to campus office. By locating the commercial along the public road and the grow. d-ud veto the trend may be residential beyond. the uses have separate yet complementary functions historically found in small towns. seen in the mixed-use buildings and complexes that are now shaping urban foot range, designed with a village And shop doors should be accessible settings, the typical response in new character that blends with the nearby from the street. Reinforcing the street communities often calls for the inclu- housing. Often a mix of small office as the"living room"and center of corn- sion of a suburban shopping center in spaces may be included in the commer- munity activity, rather than treating it the master plan. cial program to provide services typi- simply as a highway to be ignored, is The regional mall will continue to cally required by a small community. a major goal of the new traditionalism. be the location for many major pur- Although zoning, market, and site de- chases and for comparison shopping. velopment considerations usually dic- Diverse Housing Types The large market needed to support tate use of a separate frontage parcel Conventional master plans divide the such a retail center precludes develop- for commercial uses. a coordinated land into development"pods"or"clus- ers from depending solely on shoppers street and walkway system and consis- tens"earmarked for different products. from within the community. But there tent architectural theme can help link In response to marketing concerns. are opportunities for integrating day-to- the commercial and residential uses. such pods can become private enclaves. day shopping(for groceries, household But integrating uses is not enough. often using boundaries such as concrete items. personal services) within the re- Traditional design also suggests the walls to secure their independent status. sidential community. Through the use creation of "user friendly" public Within these pods. housing types are of inviting streets and walkways that spaces. Forcing pedestrians to generally uniform with only minor vari- link commercial areas and neighbor- negotiate parking lots to reach shopping ations in building style and elevations. hoods. developers might be able to en- will discourage walking. Instead, the As a result• traditional master pians en- courage residents to walk to neighbor- shops should be sited along the perime- courage a homogeneity that fails to es- hood-scaled shopping and/or work. ter of the commercial site: parking tablish a sense of place or identity. Ana by combining office and retail should not completely surround the Traditionalist plans attempt to bal- uses, workers might reduce their de- buildings. and parking lots should be ance modern concerns of security and pendence on the automobile for their broken into smaller units to eliminate market segmentation with the delight daytime trips to stores.restaurants,and vast expanses of asphalt. In addition. of architectural variety and individual- offices. stores should be oriented to the street, ity found in older neighborhoods. An This smaller scale favors retail cen- with shop windows visible to pedest- important element of charm in mature ters in the 80.000- to 150,000-square- rians as well as to passing motorists. towns and villages is the diversity in 24 Land Development'December 1983 . . .I I 1 CO, i �I ` housing that reflects neighborhood i. / n: ‘r... . oil • 'X: (7 a•-• \ ' : �+' �¢ evolution over time. Translating this y :1:'.�• tiA...1•1;••:' - ': L ill phenomenon into the production build- �� ,'" /'_''- �ti a > �': ..' ing process will increase product types ` y` �; within neighborhood areas and achieve ,.> ' '" - ,- .- „ -'�- desired design interest. ,;' %�'. - ! �� ^_ • 1 Such diversity can be achieved by ! `' - "� 'rJ,t -4 / :�1 mixing townhouses with detached • i� �c'. c �` ,- `� � �, l housing.or garden flats with duplexes. r /7 ' ; A--�- c� .� „ �, ! It should be noted, however. that rigid _ �' sY S_ ,47,-,'� zoning standards may not permit a mix �� • -�: - - -- • -,=.,5 ; of housing types. Nonetheless. market- ;�`v �� -. AY"��' /' ing goals may still be attained with an j "'� •' -Sr ---- effective land plan and integration of ''�\ Y'11,-.7.'. ;:. '4- "-�� / architectural styles that present a uni- �:' fled community setting. -v.. __ --�� Unprogrammed Open Space �__ A classic element of many small towns —, and traditional subdivisions is"unprog- .J rammed' open space. more commonly _� �__ . referred to as -greens.'or-commons.- Generally left as lawns in a park-like _ setting. these spaces provided a visual and social focal point for the communi- ty. Smaller open spaces were often commonplace through the community and acted as public lawns for smaller A 17-acre golf course community in North Carolina mixes singles, duplexes, and neighborhoods. triplexes into a cohesive neighborhood. A perimeter roadway and consistent Contemporary subdivisions and architectural style organize the diverse product types into a unified community master plans have largely omitted un- setting. programmed open spaces in favor of an amenity area that provides an overall .i . t community focus and typically in- :• -A ' /1 11.., �: cludes a pool/clubhouse or other.. •, --,• scaled to the size and market prefer- 1 ! tj� • f�, : �1 ence of the development. Due to the ` - L I !. , " • \ pressures of high land costs and en- ''.17. 1 A '< ' .{ vtronmental constraints, unpro_ram- i `, med open space has been difficult to r f, N �. .;A (� ••....t......,. ., incorporate into new subdivisions. The ,. .,�Ij.- ` ,c, appeal of these open spaces. neverthe- 1 �+� r i. i '- + i ,-* less. lies in the many opportunities for f,.; ;;`, : • t �`' ' F '�--- social functions—both organized and '. ., •t; ,,: "t _ . :` , „ , : ;;�.1 _ 'spontaneous. Flexible open spaces at- r 1 ford the neighborhood a playground. 1 II picnic area. or space for other special - - _ - _ �— _ gatherings. :„.-s per• --,.....-4....„ _ A Blend of Neighborhoods - - .�fl _r- l- While traditionalist plans recognize the - - — - need to identify distinctive neighbor- --. - - - hoods for marketing purposes. blend- • traditional village square with buildings sited around public open spaces. ing these neighborhoods into acommu- Land Dcvclopmcnt•D'ccmhcr IoSS 25 • 4uc,rG't!4 • - '....:-0L41:8-r- . '' ''''."$- .';'.;--•:.:,r; -1 IZO... --.--sal •r '' . ,7:1 I — % F., ,,,,, ...... , ......„... i.............,,L-. -' .•''...=4.:\ -.. • \c/ ' 4,./.... A\\;<:..14.,:c).-4?'"et:' J.!:„..."' :, ,.....••••"."...--....._,.............-7:7........41).....7-'*""-.,...... -'.....4r44444-.,•-'.--..-.'''. ..../.,..7; • WT✓ \\\\\\\��,,,a11JJJ... • -mss ► „5z__„.,,_........,.___. "�' _ _ --`- �.� �'/ --.__ This townhouse community in Pennsylvania uses rear alley garage access to enhance the street view of the homes. Designing the alley as a private road with minimum • cartway dimensions reduces the additional site coverage and road improvement costs. I nity is a priority as well. Open space is often a means of providing a common link between neighborhoods. Continu- ing a street pattern such as a grid, cur- __ _ vilinear, or loop system throughout the �”"-_ '` - _ _ land plan will also help reinforce the ---sem' :=E community as a collection of neighbor- ' hoods. „ . _ 1;, Flo- ,� -- .rr„ 14 _ Streets as Promenades `"` In small towns and traditional subdivi- -_ ,`�—1•w l rg- h sions. the charm of residential streets N:.-,. _— .Z:..-. _' - -- has made them inviting pedestrian spaces. Typical design standards in- cluded public sidewalks and now-ma- ture shrubs and shade trees that provide the pleasing environment typically found in small towns. Alone with the primary streets. Sidewalks were elimi- fill its role as a promenade. Houses and public improvements. the privately nated because they typically did not apartment buildings should front onto maintained fences. gardens. and lawns carry pedestrian traffic to neighborhood the street rather than locate entrances of adjacent homes tranformed the activity centers. Instead, sidewalks on interior courts. The most attractive streetscape into"linear parks." In con- were provided only within the common elements of a development should be temporary land plans. the opportunity areas to carry pedestrian traffic. The visible from the street. while garages. for community identity and participa- inclusion of walkways (provided they loading areas.and parking areas should tion can be strengthened by designing connect neighborhood activities) and be hidden. It should be noted that the park-like streetscapes. However, the shade trees can enhance the perceived market sometimes prefers interior court cost of providing such amenities must value of the total community. In the entrances. In such cases. the developer be kept in perspective when affordable traditionalist view, the added cost of must decide whether traditionalism out- housing is the goal. trees should be counterbalanced by re- weighs market demand. In commercial Many contemporary development during the cartway dimension of the development. large blank walls on the plans provide street standards only for street section. street should be avoided:shop windows cars, thereby virtually eliminating any Streets and buildings should be sited facing the street are more attractive and consideration of the pedestrian on the harmoniously to permit the street to ful- inviting. 26 Land Development December 1988 t j l 4•'''.'s."• +' `v' •.0.%‘.1,4, ```` +711,-..1 \\,�� ,tlL _� — • \ y — /.ry`.X.".• 4 AAA f �/ '1: /+-' 3 f_ i ... i. _ .1g ,. . I.t.• _ 1 1` , . 1 lit ..Ir71a.. ' -, -----•. • �y-,. ; em: --=---:_-: ^ --Ti .0'' •,_...- . -•'—'''='-'• These affordable homes follow community design standards for recessed garage locations,front porches,and traditional regional materials, thereby creating a pleasing, neighborly streetscape. jectives such as segmentation have Accommodating the Automobile Community Design Standards been reinforced in the minds of the re- As the ownership rates and ratios of Although many master-planned corn- sidential development community. cars to households have increased. au- munities include strict architectural Certainly such factors should be posi- I tomobile storage has emerged as a controls for individual homes, most tively incorporated into contemporary major design issue for residential land tend to overlook community design plans. planners. particularly given the trend goals such as garage size and location. The suburban pattern witnessed in toward higher-density development. entry treatments such as porches or the last 20 to 30 years was a response While older single-family subdivisions overhangs, and yard and planting stan- to some of the shortcomings associated placed the garage in the rear yard.many dards. Design goals can be handled with earlier urban living,such as prox- contemporary designs move the garage through written prescriptive standards imity of incompatible land uses and to the front of the house where it domi- that provide design guidelines.Without lack of space for the automobile. In • nates the street view of the home. controlling the design standards for designing developments 1,..,,ed on the Further, local design standards fre- homes,the cohesiveness established by concepts of the new traditionalism. quendy prevent the use of alleys for street improvements could be lost. planners and developers must still re- rear yard automobile storage. In mut- solve similar issues in a manner that tifamily developments.surface parking Summary will not sacrifice the attractiveness. lots become the focus of the community The traditionalist planning movement convenience.and social interaction that when located directly in front of build- is rapidly gaining popularity with pro- characterized earlier communities. ings.The dominance of the automobile gressive community developers and The 1990s is being heralded by urban within contemporary site plans relates home builders. New community plans historians as the decade of solidifica- directly to the higher-density demands based on the themes of Seaside are pro- tion for the suburbs. New thought in of increased land costs. Several tradi- liferating as developers undertake sub- the planning of our suburban com- tional solutions to accommodating the divisions of primary housing for varied munities will help implement this vis- automobile. however. are proving to market segments. Consumers of new ion. Traditionalism seeks a return to be justified by market tastes. housing are seeking a higher level of the character and scale of small towns Traditionalist planners are moving to- sophistication in their living environ- that is an integral part of the American ward-wide-shallow-lot dimensions to ments. one that will distinguish their way of life. pull the garage at least to the side of neighborhood and community as a the home. special place. Among the themes that Zero lot line housing types recess traditionalist plans seek to reinforce: the side garage into the lot away from ■ integration of commercial and resi- the front elevations. Other projects are dential uses reviving the rear alley street pattern by ■ diverse housing types and styles eliminating garages entirely from the ■ formal. park-like open space J ''• public street. • linked neighborhoods �'_ In multifamily plans. parking can be ■ pedestrian-oriented streets t: , located in courts away from the front ■ de-emphasis of the automobile of buildings to retain a streetscape ■ increased curb appeal for housing James W. Wending, AIA, is the characteristic of traditional main It might be said that many principal of James Wentling/Architects streets.A traditional street line includes traditionalist themes are well inten- in Philadelphia. PA. The firm is Nidewalks and landscaping in front of boned but will be difficult to implement involved with the planning and design buildings that may look out over open due to rigid zoning and subdivision reg- of residential communities throughout ',pace rather than parking lots. ulations. Further, many marketing ob- the United States. Land Devclopment'Deccmhcr I 9SS