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78–063 PDF








MARCH 7, 2002

Serial No. 67

Printed for the use of the Committee on the Judiciary
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Available via the World Wide Web: http://www.house.gov/judiciary

HENRY J. HYDE, Illinois
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
ED BRYANT, Tennessee
BOB BARR, Georgia
LINDSEY O. GRAHAM, South Carolina
MARK GREEN, Wisconsin
DARRELL E. ISSA, California
MELISSA A. HART, Pennsylvania
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JOHN CONYERS, Jr., Michigan
BARNEY FRANK, Massachusetts
HOWARD L. BERMAN, California
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ADAM B. SCHIFF, California

PHILIP G. KIKO, Chief of Staff-General Counsel
PERRY H. APELBAUM, Minority Chief Counsel

Subcommittee on the Constitution
STEVE CHABOT, Ohio, Chairman
LINDSEY O. GRAHAM, South Carolina
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MELISSA A. HART, Pennsylvania,
  Vice Chair

BARNEY FRANK, Massachusetts
JOHN CONYERS, Jr., Michigan
MELVIN L. WATT, North Carolina

KRISTINE SCHULTZ, Full Committee Counsel
DAVID LACHMANN, Minority Professional Staff Member


MARCH 7, 2002

    The Honorable Steve Chabot, a Representative in Congress From the State of Ohio, and Chairman, Subcommittee on the Constitution
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Mr. Harry Alford, president and CEO, National Black Chamber of Commerce
Oral Testimony
Prepared Statement

Mr. R. James Claus, Ph.D., principal, Claus Consulting
Oral Testimony
Prepared Statement

Mr. Robert Manley, esq., partner, Manley, Burke, Fischer & Lipton
Oral Testimony
Prepared Statement

Mr. Geoffrey William Hymans, esq., House Republican Caucus, Washington State House of Representatives
Oral Testimony
Prepared Statement


Material Submitted For The Record

    Prepared statement of the Honorable Steve Chabot, a Representative in Congress From the State of Ohio, and Chairman, Subcommittee on the Constitution
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    Prepared statement of the Honorable John Conyers, Jr., a Representative in Congress From the State of Michigan, and Ranking Member, Committee on the Judiciary

    Letter from Katherine E. Doddridge, senior staff vice president, National Home Builders Association to the Honorable Steve Chabot, accompanied by ''Report of the Member Representing the Built Environment—Comments and Concerns on the Growing Smart Legislative Guidebook''

    Letter from R. James Claus to the Honorale Mel Martinez, Secretary of Housing and Urban Development, with Enclosures

    Analysis by R. James Claus of Chapter Nine, American Planning Association's Growing Smart Legislative Guidebook



House of Representatives,
Subcommittee on the Constitution,
Committee on the Judiciary,
Washington, DC.

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    The Subcommittee met, pursuant to call, at 1:10 p.m., in Room 2141, Rayburn House Office Building, Hon. Steve Chabot [Chairman of the Subcommittee] presiding.

    Mr. CHABOT. The Committee will come to order. This is the Subcommittee on the Constitution of the Judiciary Committee. I'm Steve Chabot, the Chairman.

    Apparently a number of my Democratic colleagues have been called to the White House, and our last vote on the floor has occurred for the day, so I'm not sure that there are going to be a huge number of Members here. But the rules indicate that we can't start until we have two Members. We now have two Members here, so I apologize for not starting a little more promptly.

    The topic of today's hearing is HUD's legislative guidebook and its potential impact on property rights and small businesses, including minority-owned businesses.

    The ''Growing Smart Legislative Guidebook'' is a collection of commentary and proposed state legislation that would comprehensively revise the Nation's land use planning laws. It's the result of a 7-year effort by Department of Housing and Urban Development, using $2 million of taxpayer money.

    Under the contract between HUD and the American Planning Association, the guidebook is considered official Federal Government work product. The contract states that HUD could have disapproved the guidebook if its methodology or analysis were found faulty, but HUD did not so disapprove. HUD also did not exercise its right to have dissenting views attached to the guidebook, addressing disagreement with the proposed legislative solutions, or to point out errors in the methodology on which any of the guidebook's conclusions are based.
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    Many in the regulated community—including those in the land-owning, agricultural, minority, small business, and manufacturing communities—have vociferously objected to the proposals contained in the guidebook. Organizations signing letters expressing their concerns regarding the guidebook include the National Black Chamber of Commerce, the Small Business Survival Committee, the Islamic Institute, the Chamber of Commerce, and the National Association of Manufacturers, among others.

    Such organizations point out that only one representative of the regulated community, compared to 29 other representatives representing the regulating community, was allowed to serve on the directorate that engaged in the official deliberations that resulted in the guidebook. Consequently, they argue that the lack of representation during the 7-year project is a fundamental methodological error that taints the guidebook's proposals and conclusions. And for that reason alone, HUD should have delayed its approval of the guidebook or, at least, insisted on its right to include dissenting views.

    In exercising its oversight role, Congress should be especially vigilant when the executive branch contracts out to potentially interested parties the job of drafting legislative proposals.

    Our hearing today provides an opportunity for Members to hear the concerns of those who were not represented during deliberations on the guidebook but who will be severely impacted by many of its proposals and provisions, should they become law.

    Many of these provisions may well result in disparate racial impacts and unreasonably burden property rights. For example, a report by a researcher at the Fletcher School of Law and Diplomacy concluded that: ''Black households living in sprawled metropolitan areas live in larger housing units and are more likely to own a home than identical black households in less sprawled areas.''
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    Further, many argue that a sound land use planning program should foster decentralized programs that center on local control rather than centralized programs directed at the State or regional level, because localities should be allowed to use their better understanding of local conditions to provide local citizens with the best available quality of life. Yet, under the legislation proposed in the guidebook, local governments would be required to write plans that follow State goals even if local residents do not agree with those goals and plans.

    As a former local official, having served both as a Hamilton County commissioner in my community and also as a Cincinnati City councilman, I have serious concerns about this approach.

    Finally, the guidebook expressly authorizes local governments to regulate the location, period of display, size, height, spacing, movement, and aesthetic features of signs, including the locations at which signs may and may not be placed. These provisions in part take aim at on-premise signs that identify a place of business or advertise the product and services available, allowing government, after a period of time, to force the removal of signs from a business. This raises the unsettling and possibly unconstitutional possibility that a small business, who frequently depend on signs for their livelihood, would have no right to tell people what they—even that they exist.

    I'd like to close by welcoming all our witnesses here today; in particular, Robert Manley, from Cincinnati in my district. I know from personal experience and from reading Bob's testimony that we both agree on the need to promote balanced development that offers consumer choice, gives families an opportunity to buy their first home at an affordable price, and is consistent with a local community's vision and values.
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    Bob, it's good to have you here today. And as we have the opportunity to hear from some of those who are concerned about the guidebook's recommendations, we'll also be interested to learn more about the guidebook's drafting process and APA's views.

    And normally, we would now defer to the Ranking Member of the Committee, but as I mentioned, the Ranking Member is at the White House, so that won't be given.

    Would the gentlelady from Pennsylvania like to make an opening statement of any sort?

    Ms. HART. No, thank you, Mr. Chairman.

    Mr. CHABOT. Okay, if not, then without further ado, I will introduce the members of the panel who will be testifying here this afternoon. After the members testify, then Members of the Committee will have an opportunity to ask questions for 5 minutes. And we would ask that the panel try to confine their remarks to within 5 minutes or thereabouts, if at all possible.

    We actually have a lighting system, which will go on in just a moment, after I've introduced you. The green light means your 5 minutes is going. A yellow light will come on, and that means you've got a minute to wrap up. And the red light means, if possible, try to stop around that time, if at all possible.

    We'll hear first today from Harry Alford, the president and CEO of the National Black Chamber of Commerce. After earning top honors as company commander in the Army's Officer Candidate School class, Mr. Alford assumed a variety of key sales and executive positions at Fortune 100 companies and served as the minority-business development point person in Indiana Governor Evan Bayh's administration. Mr. Alford writes weekly business columns and was recently elected to the board of directors of the U.S. Chamber of Commerce. He also serves as a member of the national advisory council of the Small Business Administration. We welcome you here this afternoon.
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    Next we'll hear from Dr. R. James Claus of Claus Consulting in Sherwood, Oregon. Dr. Clause is a graduate of Stanford University with a Ph.D. from the University of California at Berkley in urban land economics, real estate finance and analysis, and urban geography. He is an urban-rural land use economist who has spent more than 30 years researching the variables that affect land value. He is also the author of ''The Value of Signs: A Guide for Property Appraisers, Brokers, Legal Professionals, Sign Users and Municipal Planners.'' And we welcome you here this afternoon, Mr. Claus.

    Our next witness will be Robert Manley of the law firm of Manley, Burke, Fischer & Lipton in Cincinnati, Ohio. Mr. Manley is also an adjunct professor at the University of Cincinnati School of Planning. In his private practice, Mr. Manley's experience includes the representation of developers and units of local governments related to land use development. He is a graduate of Harvard Law School and has completed post-graduate study at the London School of Economics and the Massachusetts Institute of Technology.

    Mr. Manley has at the table with him Stuart Meck, a senior planner at the American Planning Association, who will be available to help answer any questions Members may have concerning the guidebook, if needed. And we welcome you here, as I mentioned before, Mr. Manley.

    Finally, we hear from Geoffrey William Hymans, senior counsel to the House Republican Caucus of the Washington State House of Representatives, who he advises on land use and transportation issues. Prior to joining the Legislature, Mr. Hymans was an attorney with the Seattle-based law firm of Williams, Kastner & Gibbs, where he specialized in land use issues.

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    I'd like to thank all of you for being here this afternoon, and I'd ask, as I mentioned before, that you please try to summarize your statements, if at all possible, within about 5 minutes. And your statement will be made part of the permanent record, so if you're written statement will be longer, that will become a part of the official record. And we'll begin here this afternoon with you, Mr. Alford.


    Mr. ALFORD. Thank you, Mr. Chairman. I really appreciate this——

    Mr. CHABOT. I think that mike is not on there.

    Mr. ALFORD. I really appreciate this opportunity to speak before you. I won't read my statement; it would take longer than 5 minutes, so I will highlight our position on this.

    The National Black Chamber of Commerce is a federation of 201 affiliated chapters in 40 States and eight nations. We have direct reach to about 85,000 black-owned businesses and gladly represent the 880,000 black-owned businesses that exist in the United States.

    We support good policy. We try to stop or remove bad policy. My mission here today is to deal with bad policy that is the APA ''Legislative Guidebook,'' thousands of pages of proposed bureaucracy, making the United States one big zoning ordinance law.
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    There is precedence to this, sir. It was done in the Soviet Union, and I don't believe the United States needs to emulate anything that happened in the Soviet Union. It's anti-freedom, it's anti-choice, it's anti-culture. What would happen to the Chinatowns of today? What would happen to the thriving bodegas in Hispanic communities? The Little Italys? The Greek towns? What would happen to Harlem, Sweet Auburn district in Atlanta, these thriving business communities with big signs and visual presentations, all of which would be out of compliance with what is being proposed by the legislative guidebook.

    It's the same mentality as the Fillmore district in San Francisco in the early '60's when the planning gurus decided that the Fillmore district had outlived itself. They destroyed with bulldozers the black business district of San Francisco. They also destroyed the black middle-class of San Francisco. Today the effects still linger.

    In San Francisco, the majority of African-Americans live under the poverty level and in public housing. It's a national disgrace, and it was caused by planning, faulty planning.

    Indianapolis has rigid zoning laws. To change a zone, you have to go before the zoning committee. Washington, D.C., has liberal laws, whereas there's a lot of multi-use in the zoning ordinances of Washington, D.C. Houston is rock-n-roll; there's no zoning laws. Do what you want in Houston; the bigger the better.

    All three work. All three work. It depends on the area. The decisions should be made locally, not up to a State, not up to a Federal Government. They all work. But they want to wrap it all up into one, march in step to the single beat of the commissar. This is not Americana.
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    They say we should be pedestrian-driven. Not Over-the-Rhine in Cincinnati. Not at 92nd and Center in Los Angeles. Not at 63rd and Halsted in Chicago. People drive. They take cabs. They take the bus. L-trains. The Metro. You do not stroll through those neighborhoods, going door-to-door, looking into windows. You must have vision from a distance. Your shopping is done with a mission, and it is focused.

    Pedestrian-driven won't work. It is misuse of economic development funds, of Federal tax money. They want to fund this with economic development money—economic development money for economic restriction. That is a misappropriation of funds.

    They want to cure our problem. What problem? The problem doesn't exist. There is no problem in the way we do business in our communities. They all have different flavors and choices, and all of them bring vitality to the economy. There is no problem.

    Did they consult the National Indian Business Association? Did they consult the National Association of Minority Contractors? Did they consult the U.S. Hispanic Chamber of Commerce? The Native American Chamber of Commerce? The Pan-Asian Chamber of Commerce? They certainly didn't consult the National Black Chamber of Commerce. And I think that is why the input, the views, of these communities and these constituencies are absent from this thinking, and it is wrong.

    It's a hustle. It's a hustle that won't work. I ask that it not be funded, and it be withdrawn. Thank you, sir.

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    [The prepared statement of Mr. Alford follows:]


    Mr. Chairman, members of the Committee, thank you for giving the National Black Chamber of Commerce, Inc. time to present testimony concerning this very important issue. The NBCC is a federation of 201 affiliated chapters located in 40 states and eight nations. We have direct access to approximately 85,000 Black-owned businesses and proudly represent the 800,000+ Black-owned businesses located within the United States. Our purpose is to promote entrepreneurship as the main vehicle to wealth building and economic vitality within African-American communities. We believe that the key to prospering in this capitalistic society of ours is to practice capitalism. Practice capitalism via understanding it and excelling in its principles.

    We have great concerns about the ''Guidebook'' of the American Planning Association (APA). Throughout the entire APA document runs a simple and consistent theme: that the proposed regulations will bring about positive benefits. No regard is given to the risk and uncertainty they will bring to the real estate market and related business activities. Furthermore, no understanding is displayed of the consequences of turning this large amount of discretionary authority over to planners—people who, as a whole, possess neither business experience nor a basic understanding of the banking and lending markets. Entry-level businesses will be severely impacted, especially those with the least funding, education, and political connections. Quite frankly, this will be devastating to the African-American entrepreneur seeking to break free from poverty and achieve the American Dream.

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    This threat reminds us of when the great Interstate Highway system was put into place throughout this nation. With little thought or foresight, inner city business districts were ''eminent domained'' into destruction as right of ways for the new freeways. The effects were awesome and can be pointed to as the key reason for the urban blight that was to come within the following decade.

    Likewise, The Legislative Guidebook is rife with regulations that display little understanding of business and the economy. Let me give you an example. The majority of independent businesspeople typically try to buy, or lease with an option to buy, their own buildings, usually an older building. Often they try to remodel those buildings. According to The Legislative Guidebook, those buildings are nonconforming. The way The Legislative Guidebook deals with ''nonconformity'' is all-inclusive. It offers no exceptions. Under the combined impact of Chapters 9 and 10, the process required for an older building to be brought into compliance with the new environmental regulations could create such a delay that for all practical purposes, no one could go into business without constructing a whole new building. If this required compliance process kicks in with every change of business in a nonconforming building, it is extreme enough that it may indeed activate the ''takings'' clause and result in costly litigation.

    All of this, of course, adds delays and problems in the permit process, but delays in and of themselves are not the real problem. The real problem is that this kind of development condition may make it impossible for the first time or beginning entrepreneur, or the person who does not have enough money to buy the business firm or business product franchise and receive franchisor supervision, to find the capital to enter the market; too much risk has been introduced in the market. Furthermore, the government inspections, then re-inspections, then re-examination of its inspections would lead to a level of lending uncertainty and would approach extreme frustration to the point of ''prohibition''.
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    The Legislative Guidebook's promotion of amortization and of an oppressive level of supervision of business signage displays a serious lack of understanding of how business functions. The average small business is nearly totally dependant on place-based communication, graphics devices and systems for its marketing and advertising. It is the most cost-effective way a business has of communicating to passing motorists that the business is part of the community, that it offers certain products or services, and that they are welcome to come inside. Signage literally can make or break a small business. The business site of a large corporation or franchise, on the other hand, can be very visible even without a large sign because its national advertising, signature building, prime location, and corporate identification makes it instantly identifiable to the passing motorist.

    Advocates of Smart Growth frequently talk of regulations such as those embodied in The Legislative Guidebook as being necessary to develop a ''sense of place''. They opine about limiting ''big box retail'' and the corporations and franchises that make so many of the newer suburbs indistinguishable from one another. But for all of this talk, one of the biggest things that has favored corporate America from the beginning has been land use planning rules, and especially sign regulations. The more difficult it is for the small businessperson to be seen, and the more risk is introduced into the marketplace for the independent merchant, the more franchises and corporations a town will have and the fewer small businesses. Add to this the indignation the financially struggling and inexperienced small businessperson suffers due to overbearing regulation and authoritarian demands, which corporations and franchises have the money and power to avoid.

    No one is bold enough to step outright on the Lanham Act and to stop the use of registered trademarks. Some cities flirt with it, but are only successful in manipulating the copy on the independent or small merchant's sign. Regardless of rules against content-neutrality, the planners know they can get away with this bullying tactic on small businesspeople because of their inexperience and lack of capital. The Legislative Guidebook encourages this kind of behavior, and what is worse is that it encourages this behavior from individuals who have no training to understand the risks and difficulties they are introducing for the small business community, or the negative impacts that will result for cities that implement these and other policies promoted in The Legislative Guidebook.
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    Let me give you just one example of the kind of trouble cities will face. It is a fact that many of the older buildings small businesses lease or buy are built right up to the property line, directly against the public right of way. When a sign projects even one or two inches from the face of the building, let alone the 20 to 30 inches necessary to be readable through the windshield of a passing automobile, it is projecting over public space. The Legislative Guidebook suggests that these situations require additional regulatory oversight, which increases lending risk. However, municipalities that apply this kind of additional risk to marginal buildings will find the regulations will drive small businesses away from existing buildings and into new buildings, and it will give a tremendous advantage to the corporate and franchise operations. Thus, the regulations will work against their goals of urban renewal, deceleration of urban sprawl, and prevention of urban deterioration.

    Furthermore, ''pedestrian-oriented'' business signs, as apparently advocated by Guidebook (2–101(2), are not functional for automobile-dependent communities. Potential consumers do not stroll around 12th & Teutonia in Milwaukee; 92nd and Central in Los Angeles; Fenkel & Livernois in Detroit; 79th & Halsted in Chicago, etc. The view is from a moving vehicle and the shopping mission is very direct and focused. One must not consider these neighborhoods synonymous with the mega malls of suburbia.

    In the late 1920's, the Supreme Court ruled that an exception or variance process must be a part of land use regulation. It is a fact, however, that such a process favors the well-financed, well-educated, and well-connected. Exception or variance processes are pervasive throughout The Legislative Guidebook. If a first-time entrepreneur has the six to twelve months to wait, and the necessary revenue, knowledge, and/or political connections, he or she might be able to obtain a variance and overcome many of these obstacles. But this is far from the norm for the small business community, and especially for the African-American small business community. The exception or variance process subjects important factors like the functionality of a district, motorists' visual acuity, the speed of traffic, and the need for increased visibility in certain areas (such as areas focused on impulse or a heavy volume of retailing, or where people are unfamiliar with the area), to the lofty goal of promoting ''aesthetics'', and creates even more uncertainty for the small business community.
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    It is truly a sad commentary that the American Planning Association, a trade organization working to enhance the job security of its members, can do so, by using millions of dollars of federal funding, on the back of the small business community, by creating a regulatory scheme which its members will enforce, and which will have the practical effect of institutionalizing racism by closing the door of opportunity for the typical African-American who simply dreams of owning his or her own business.

    Regardless of how good it is for the 30,000 APA members who will have guaranteed employment and totalitarian authority over a major portion of the economy, and regardless of how good it is for the few consulting firms that will take a healthy share of the $400 million booty, the regulations put forward in this ''Legislative Guidebook'' are not good for the small business community. They will introduce risk, uncertainty and exception procedures that will shrink and eliminate important financing opportunities.

    It is good for another group—that is, the large corporations. Do not expect members of that group to come forward in large numbers and fight this. It rests to representatives of small business, such as the National Black Chamber of Commerce, to accomplish that. Again, thank you for this great opportunity to speak before you.

    Mr. CHABOT. Thank you very much.

    Mr. Claus?

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    Mr. CLAUS. Thank you, Chairman, for holding these meetings.

    Very simply, this is not about land use planning. And anyone who thinks it is has to read the document and they will be quickly dissuaded. It's about how you're going to do land use planning. There will be winners and there will be losers here, and there will be substantial losers.

    The simple fact of the matter is, in writing any form of land use planning document, because it is a police power, the wider the net, the more severe the sanctions, the more you should concentrate on adequate public hearing, research that is balanced and fair, and you should be extremely cautious in recommending sanctions, particularly anything as silly as a private attorney general provision, so you can set neighbor on neighbor.

    The fact of the matter is, this guidebook, I believe, was done jointly between the American Planning Association and set governmental activists. We will supply materials we believe will help corroborate those statements.

    But if you take a look at the guidebook, it fails in every way. It wasn't reviewed by people who will lose substantial civil and property rights. It criminalizes an activity to a degree that it should terrorize anyone looking at it.

    More than that, if you look at it, it's basic review of the cases is not fair. It's not reasonable. And I don't believe it's the law. You might consider in your jurisdiction, rather than the cases we presented, the North Olmsted Chamber of Commerce v. North Olmsted.
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    Even the union, Local 639, got involved with 175 businesses because of the overreaching of this kind of sanction into normal, everyday activity with criminal sanction for no reason.

    There's a second problem; this really needs to be looked at carefully. It is completely out of step with where the Federal Government has gone in a highly enlightened way to make land use planning beneficial and useful. First, it is completely outside Title 11, Financial Institution Economic Recovery and Regulatory Act. Uniform standards of professional practice set down standards for research. This document absolutely ignores that, even though they are absolutely recommending and talking about value on business property and your personal civil rights.

    And frankly, there are places it recommends, in my opinion, violation of Federal law. For instance, recently in a personal case in Oregon, we were—tried to be told by the local planners that Truex Oil v. the City of Salem was the law. And the fact is, Hansen v. ODOT is the law, and it required compensation. Without that kind of language, you're encouraging people to violate the law.

    In our litigation I mentioned in Ohio, that you get short shrift if any mention in this guidebook, the courts have done a very simple thing. The wider your net, the worse your sanctions, and the more intrusive it is into our everyday life, the more of a burden they're putting on the government.

    In our case, they have specified time, place, and manner, and content neutrality. There must be a provable, substantial benefit. That is, they have shifted the evidentiary proof, and it must be narrowly crafted. This is being done because documents like the legislative guidebook are phenomenally intrusive and they are not going to be allowed in the end by the courts.
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    What I am saying is, in addition to the huge—and you will hear something of the cost that this kind of top-down planning inflicts—it is incredibly erosive of your ability even to go the marketplace, because what it introduces is a police power mentality that censors your speech, retroactively takes business and property without compensation, and due process of law is nothing but a charade under this, where you appear in front of a planner and he tells you, ''I'm taking your property for the public good.''

    Anything that is that far out of phase needs to be turned back and turned back radically. This Committee is taking the first step. There are other steps that need to be taken. How something that is so contrary to constitutional principles of free speech, just compensation, and due process of law could have gotten this far out of whack—we need to start looking at the agency that did that, and the in particular individuals.

    Further, you need to recommend to your colleagues they begin to look at some of these Web sties. You have hotlinks on EPA and FEMA to their Web site. I would submit it is exactly what we're objecting to. It appears to be endorsed by the Federal Government when it is contrary to rule and regulation and constitutional law.

    I would finish by saying that anything you can do to block the intrusion of this land use model that has been proposed by APA, is in their land use standards and in their forums, is beneficial.

    Certainly, Senate bill 975, House bill 1433 should be defeated simply because they're a further attack on our rights and privileges.
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    But I would conclude by saying, please understand there are land use statutes in this country. They have been modernized. They have been changed, as any intelligent person needs. We don't need this now, as long as we have a court system that is as functional and as long as a Congress as creative and concerned about the American citizens as this Congress has continually proven it is. Thank you.

    [The prepared statement of Mr. Claus follows:]



    The Senate Committee on Environment and Public Works has before it SB 975. The House of Representatives currently has in committee H.R. 1433. While there are slight differences between these two proposed pieces of legislation, essentially they both represent an attempt by the American Planning Association (APA) and government regulators to find a quarter of a billion dollars to distribute and implement their legislative guidebook and the state enabling statutes contained within. This guidebook is part of their ''Growing Smart'' campaign designed to radically alter land use planning practices on a national scale.

    The APA's legislative guidebook is an extensive and intensive effort to strengthen and expand government police powers as related to land use regulations in the United States. The guidebook has been developed entirely by regulators, and, with a few minor exceptions, has been submitted for peer review only to other regulators. While it proposes regulations that would substantially impact the personal and property civil rights of many, separately identifiable groups, almost without exception representatives of these groups have been excluded from participation in the formulation of the legislation that APA is proposing. In the few cases that non-regulators have become aware of the pending legislation or the guidebook behind it, their requests to become involved in the process of review and comment on the proposals advocated by the guidebook have been summarily rejected.
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    To what types of legislative proposals am I referring that will adversely impact personal and property civil rights? Primarily there are two:

1. A near-complete disregard for the Fifth Amendment, made applicable to the states by the Fourteenth Amendment, with respect to the right of individuals to receive just compensation when their property is taken for a public purpose and to receive due process and equal treatment in regulatory procedures.

2. An onerous ''criminalizing'' of the land use planning process by authorizing criminal punishment, including both substantial fines and imprisonment for violation of land use zones and regulations.

    To which groups of affected individuals am I referring? Primarily, there are two:

1. Owners of real property, particularly commercial property and marginal farmland adjacent to urban areas.

2. The business community, including both large and small business, with particular adverse impact on small entrepreneurial and minority business.

    A third group encompasses almost everyone who depends upon a well-maintained effective highway system. In this group, of course, are those who deliver 90% of our goods and products, or who commute (because they prefer living in suburban areas) or choose to arrive at vacation destinations by car. Even more dependent upon this system is the military and emergency response teams. We often forget that the reason behind creation of the federal interstate highway system was to permit the quick and efficient movement of military and emergency vehicles in the event of both local and national disasters. The APA legislative guidelines specifically advocate the diversion of highway construction and maintenance funds to financing urban mass transit and higher urban densities around inner-city transit stops and stations.
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    I address the Fifth and Fourteenth Amendment concerns first.


    The APA legislative guidebook is a massive tome. In chapter after chapter it sets out in great detail how government agencies—state and local—can restructure urban environments without accountability to voters, or even elected officials. Certainly nowhere does it express any concern whatsoever for the financial impact on property owners or those who would like to become property owners within the subject areas. As attorneys and legal experts, I am sure the members of this Committee are concerned when the just compensation guarantees of the Fifth Amendment are dismissed as not worthy of consideration. Or when great emphasis is placed on state enabling statutes that authorize local governments to regulate for the public health, safety and welfare without an equally great emphasis on the indisputable fact that federal and state courts across the country, led by the U.S. Supreme Court, have placed myriad, constitutionally-based restrictions on the exercise of police powers. These restrictions particularly target subjective declarations that the regulations are ''for the people's own good.''

    As just one example of judicial dismay with regulations designed to impose a subjective point of view or an ''appropriate'' lifestyle, I refer to 44 Liquormart v. Rhode Island, 116 S.Ct. 1495 (1996).(see footnote 1) Although a First Amendment case concerning restriction on commercial speech that advertised retail liquor prices, the Court's admonition ''. . . [t]he First Amendment directs us to be especially skeptical of regulations that seek to keep people in the dark for what the government perceives to be their own good'' is applicable to all regulatory schemes that adversely impact any Constitutional guarantee on nothing but subjective grounds.
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    The APA's ''Growing Smart'' legislative initiative is intended to regulate how and where we live because, according to its creators, we are not intelligent enough to make such decisions for ourselves. Therefore, we must be dealt with on a national scale through regulatory agencies and massive planner-oriented bureaucracies that will direct nearly every aspect of growth and development, and the ''look, feel and function'' of every urban, suburban and rural area in America.

    In advocating its policy of state control of local environments, the Legislative Guidebook is remarkable for its consistent failure to caution that land use planning and zoning is subject to constitutional imperatives and judicial scrutiny, particularly when it adversely impacts basic civil and property rights. Nor does it warn those local governments who might adopt its guidelines that they face substantial legal bills if their regulatory scheme is successfully challenged. Instead, the ''Growing Smart'' initiative advocates intensive manipulation of property and civil rights through total reliance on state enabling statutes. It too often does this without regard for either the Constitution or federal laws that place constraints on the unfettered exercise of sovereign police powers.

    Before beginning analysis of the legislative guidebook's attack on the Fifth Amendment and federal law, particularly the 1970 Rehabilitation and Removal Act, I respectfully direct your attention to the APA's policy statement concerning ''takings.'' (Exhibit 1)

    In April 1995, the APA Board of Directors ratified a policy guide on ''takings'' that had been adopted by a chapter delegate assembly convened in Toronto, Canada. After giving validation to the Fifth Amendment's proscription against taking private property for a public purpose without ''just compensation,'' as in eminent domain cases, the APA concluded that the same did not hold true for a regulatory impact that adversely affected either a property right, or the value of property, or both. Allegedly relying on court cases, which are never cited, the APA posits that land use regulation is subject only to ''reasonable relationship'' judicial inquiry, and just compensation is due only when a landowner has been denied all economically viable use of the land. The APA then finds, without equivocation or caution, that the courts have upheld the right of local government to intervene in private activity or the use of private property to protect the public health, safety and welfare. It provides extreme examples, essentially grounded in nuisance, to support this proclamation.
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    The APA policy statement continues with an alarmist treatise concerning the efforts of property owners to protect their rights through legislative relief from some of the effects of intensive land-use regulation. While giving token acknowledgement that some legislation has been the result of some legitimate concerns, for the most part legislative relief is nothing but ''anti-regulation clothed in the fabric of private property rights.'' We are then again treated to extreme examples of what is apt to happen if landowners are compensated for reduction in economic value resulting from government regulation. Generally, these examples focus on either bankrupting the state or creating significant federal deficits, or upon fostering a massive bureaucracy to develop economic impact statements (interestingly, the APA expresses no similar alarm that its ''Growing Smart'' legislation will create a massive bureaucracy). The statement continues with an apologia for zoning as a way to protect property values by, using another of its extreme examples, preventing the siting of a grocery store that also sells liquor in a residential district.

    The policy statement concludes with the fact that the APA ''strongly opposes most of the proposed 'takings' legislation its representatives have seen,'' finding that ''the collective political forces that have joined in support of 'takings' legislation have grossly distorted both the frequency and the intensity of the occurrence of hardship caused by government regulations . . . [p]roperty rights advocates are waging a guerrilla war of sound-bites, misleading 'spin-doctoring' and power politics which have characterized governments at every level as evil empires of bad intent . . . [these advocates] . . . wrap themselves in the flag and the distorted appearance of constitutional rights.''

    Thus, the APA Board and its supporters contemptuously dismiss the legitimate concerns of many people that the policies advocated by the APA are overreaching, and yes, in many cases, unconstitutional.
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    The Introduction to the Legislative Guidebook takes great pains to tell us that it is a research product that does not necessarily represent the policy of the APA, unless specifically identified as such in a policy guide or other action by its Board of Directors. The APA's position on ''takings'' is clearly articulated in its policy guide. We are duly warned, therefore, that behind the research of the Guidebook is at least one APA policy that seeks to neutralize, perhaps even destroy, the Fifth Amendment's ''just compensation'' application to regulatory actions that take away property value without a provable nexus to legitimate public interests.

    The error of the APA's reliance on a defense that a zoning regulation need only be ''reasonable'' to withstand legal challenge, or that, as a matter of law, land-use decisions are immune from judicial scrutiny under all circumstances, or both, was soundly pointed out to it by the U.S. Supreme Court in City of Monterey v. Del Monte Dunes at Monterey, Ltd., et al, 526 U.S. 687 (1999). The Court affirmed that just compensation would be due either if a regulation denied all economically viable use of the subject property or if a regulatory act failed to substantially advance a legitimate public interest. In specific response to the APA's amicus brief filed on behalf of the City, Justice Kennedy, delivering the opinion of the Court, said:

''To the extent that the City contends the [lower courts'] judgment was based upon a jury determination of the reasonableness of its general zoning laws or land-use policies, its argument can be squared neither with the jury instructions or the theory on which the case was tried, which was confined to the question of whether, in light of the case's history and context, the city's particular decision . . . was reasonably related to the city's proffered justifications . . . [t]o the extent the city argues that, as a matter of law, its land-use decisions are immune from judicial scrutiny under all circumstances, its position is contrary to settled regulatory takings principles and is rejected.
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    Having been defeated in Del Monte Dunes, and also Dolan v. City of Tigard, 512 U.S. 374—a case in which the Court concluded there must be at least a rough proportionality between the regulatory act and the state's asserted interest—the APA has increasingly touted ''amortization'' as a method to avoid compensating property owners adversely impacted by the land-use regulations it advocates.

    Briefly, amortization in the land-use regulatory sense, is used to achieve the demise of a property use or improvement that was legal and conforming before the enactment of new rules or regulations. The APA theorizes that by granting a ''grace period'' during which the newly offending use or property may continue is more than sufficient payment for its eventual removal. The grace or amortization period is arbitrarily based on the ''life'' of the asset as calculated under depreciation schedules used for tax accounting purposes. No cash compensation for the loss of use property will be paid because, the APA reasons, the property owner or user has recovered costs, and that is all he or she is entitled to. The APA does not care that the interest or asset has economic value to its owner or user far in excess of its original costs. All the APA cares about is that it is eventually gone—and the sooner the better (most amortization periods are only 3–5 years).

    Amortization in the world of planners is simply a compensation-avoidance scheme, and nothing less. It is also a scheme that has been rejected by the U.S. Congress, as evident in the 1970 Rehabilitation and Removal Act.

    Although primarily directed to correcting the inequities of amortization when the Highway Beautification Act is invoked to remove outdoor advertising structures, the 1970 Act, in essence, requires cash compensation based on true economic value when removal of any property pursuant to a regulatory ''takings'' if federal funds are involved in the project. This fact is not only ignored by the APA in the hundreds of thousands of words contained in its Guidebook and in its unrelenting attack on outdoor advertising structures, the APA proselytizes endlessly on ways to overcome the Act and federal compensation schedules, which among other compensatory remedies permit compensation based on income generated by the subject structure. The only time the cost of a structure enters the equation is when the subject structure can actually be relocated in a similarly effective location in terms of visibility to roadway traffic—a circumstance that almost never presents itself.
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    By way of example, I respectfully refer the Members to the APA's ''Policy Guide on Billboard Controls,'' ratified by the APA Board of Directors in April 1997. (Exhibit 2)

    . . . [M]any communities find it impossible to enforce their billboard ordinances along highly-visible transportation routes because of special-interest provisions in the Intermodal Surface Transportation Efficiency Act, successor to the Federal Highway Beautification Act . . . [u]nfortunately, in 1978 Congress adopted an amendment to the Highway Beautification Act . . . [b]efore the amendment . . . local governments in many states could require the removal of nonconforming billboards along Federal highways, offering compensation through amortization . . . [t]he Act now requires local governments to pay billboard owners before a nonconforming billboard can be removed. . . . Although in many cases [local governments] can and do require the removal of other signs without cash compensation, they can require removal of signs along heavily-traveled federal-aid highways only if they pay compensation. . . . In short, federal intervention intended to make highway corridors more beautiful has been manipulated by special interests to make it more difficult for local governments to use their own tools to accomplish the original purposes of the Highway Beautification Act.

    The ''policy guide'' continues: The APA promotes federal legislation that restores to local governments the authority to require the removal of billboards and other signs through amortization, and promotes the adoption where necessary of state legislation that expressly authorizes local governments to offer amortization as compensation for a requirement to remove nonconforming billboards and other signs within the jurisdiction of the local government.
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    I emphasize the words ''other signs'' to emphasize the fact that on-premise business signs, which are unprotected under the federal Acts, are considered fair game for burdensome treatment and retroactive regulatory ''takings'' without just compensation precisely because the APA refuses to acknowledge their extreme value to the businesses they identify and advertise, or the adverse impact on business revenues that occurs when signs are downsized to the point where they are, for all intents and purposes, invisible. Especially hard-hit by restrictive sign codes that limit signage height, size, placement or illumination are small businesses that in most instances rely entirely on optimally visible and readable on-premise signage to signal their presence to those passing by.

    The distain for property owners, and the 1978 Congress which attempted to protect at least some of them, is patent in these policy statements. The distain continues in the APA's Legislative Guidebook. In fact, what is occurring in this partnership between HUD, an agency of the executive branch, and the APA is an effort to end run the federal checks and balances system by intentionally failing to point out that, indeed, federal law and court cases have in the past, and will in the future, ''check and balance'' the actions of the executive branch, particularly when the intent of the action is to unilaterally impact the lives and property of the general public.

    Additionally, the APA-HUD program envisions $250,000,000 in federal funds to support implementation of its Guidebook, when the Guidebook specifically authorizes amortization of non-conforming uses. Amortization is specifically disallowed in regulatory undertakings that are in any way tied to federal funding. Therefore, I posit, the HUD-APA project directly advocates violation of federal law.
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Fourteenth Amendment

    The Fourteenth Amendment comes into play as we try to deal with the regulatory plans set out in the Guidebook. Minimally, to pass Fourteenth Amendment ''due process and equal treatment'' tests, a regulation or regulatory scheme must be sufficiently clear to allow persons of ordinary intelligence a reasonable opportunity to know what is prohibited; otherwise, individuals might be punished for conduct they could not have known was illegal, or enforcement might be subjective, arbitrary or discriminatory. The need for clarity of language and objectivity in enforcement is especially important when violation may be punished as a criminal offense, subject to both fine and imprisonment.

    Chapter 9 of the Guidebook (''Special and Environmental Land Development Regulation and Land-Use Incentives'') is particularly troubling because it raises the possibility of criminal conduct for engaging in the customary use and enjoyment of one's property, particularly agricultural properties. While purporting to be concerned with balancing the need to protect the public and environment with the rights of property owners, the thrust of the chapter focuses on ways to tip the balance in favor of the environment at the expense of property owners.

    For example, in agricultural areas it is often the case that farmers may ''alter land form'' or, as the Guidebook puts it, by human act ''change the existing topography of the land'' in the ordinary course of their agricultural operation, and may do this without intention to disrupt something the planning authorities have called a ''critical and sensitive area.'' Perhaps it is a generational farm with a ''wet spot'' that has been plowed for decades; perhaps the farmer has a general idea that ''wetlands'' are protected but doesn't think of his wet spot as falling into that category.
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    When the environmental or planning authorities come to investigate, does the farmer's ''no trespassing sign'' apply to them? No. Because his land is in plain view, the thinking espoused by the APA is that investigators can enter at will because no right of privacy attaches to open areas. Will the farmer's obviously intentional act of plowing and his general knowledge that wetlands are protected satisfy the APA's criteria of ''intentional and knowing'' violation that leads to criminal charges? Under the Guidebook's proposals, the likely answer to this question is ''yes.''

    Please do not think that I exaggerate in this example. The scenario, or something very similar, will occur. As a result, farmers and ranchers across the country are in serious jeopardy under the APA Guidebook.

    Chapter 9 also deals extensively with historic districts and landmarks, subjecting buildings that may fall into the designations to extensive, and very subjective, controls that may extend beyond the exterior to the interior. Additionally, where an individual property may have historic preservation potential, the regulatory format suggested by the Guidebook specifically authorizes a construction or development moratoria of up to 180 days to permit a local government to complete a designation process that will include the subject property. The only recourse from the moratoria by the affected landowner is mediationa time consuming process that will almost certainly extend beyond the 180-day period, thereby negating its usefulness in providing an avenue of relief. Finally, the Guidebook authorizes a code enforcement agency to order an owner to correct perceived defects in the owner's compliance with the required ''look'' of his or her building, either its exterior or interior. If the owner fails to maintain the property as required by the regulation, as a ''generally-available remedy'' in the model code, the code enforcement agency may enter the premises to repair the ''defect'' and impose a lien against the property for expenses incurred. The reason for a failure to maintain, such as an economic downturn that has reduced funds available for maintenance, is apparently irrelevant—the property can be entered, repaired or ''fixed up,'' and liened, with no limit on costs.
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    Another troubling aspect is the Guidebook's ''due process'' models—both substantive and procedural. In almost every instance, they are overly cumbersome and extremely time-consuming, necessarily imposing delays that will increase development costs, and possibly adversely affect the development's market value before construction is finally complete. Further, the Guidebook adds several levels of appeals of a denial of an application before administrative proceedings are sufficiently ''exhausted'' at the local level to permit removal to the state court system.

    The Guidebook also suggests that one ''remedy'' for denial is a requirement that the applicant resubmit the application under another theory, such as variance or conditional use. In this scenario, the applicant is not considered to have exhausted local remedies until he has submitted at least one other application that either meets the conditions enjoining approval of the first application or comes before the permitting authority with a request for exemption from the regulation. Since the Guidebook also discourages variances and conditional uses, it is very unlikely that an applicant will gain approval of such requests. The result of this ''two or more'' applications procedure unfairly entangles the applicant in local land-use procedures (in direct contravention of Monterey v. Del Monte Dunes (supra), and such a requirement was rejected by the U.S. Supreme Court in Palazzolo v. Rhode Island, 121 S. Ct. 2448 (2001). In this case, the Court said that it was not necessary for an applicant to submit more than one completed application for a case to ''ripen'' for adjudication.

    The lack of certainty in the highly subjective and time consuming regulatory process advocated throughout the Guidebook will ultimately have a very chilling effect on investor or bank willingness to commit development or redevelopment funds. A lack of funds ultimately will also have a chilling effect on the ''growing smart'' programs—an effect, I believe, the Guidebook authors and supporters have overlooked.
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    Exhibit 3, a letter to the APA hierarchy from the National Association of Industrial and Office Properties, National Multi-Housing Council, Self Storage Association, and American Road & Transportation Builders Association, addresses many of the concerns I have expressed. Exhibit 4, a letter to the mayor of Las Vegas from John E. Scott, SBA District Director for Nevada, describes SBA apprehensions regarding regulations that may dry up commercial lending support because of increased risks to businesses. Mr. Scott's letter was prompted by the city's efforts to enact an APA-model sign code that placed severe restrictions on sign size, height, illumination and placement and favored non-compensatory regulatory ''takings'' under an amortization clause. He is particularly concerned that the on-premise business sign regulations consistently proposed by planning consultants with close APA ties essentially render business signage invisible, thereby severely compromising the ability of businesses, small businesses in particular, to effectively communicate with potential customers.

    Simply, the due process models advocated in the Guidebook are incapable of satisfying the Fourteenth Amendment requirements that regulations be clear, concise, capable of objective enforcement, and provide for timely appeal. Further, and in spite of U.S. Supreme Court decision after decision, and the decisions of many lower federal courts, the Guidebook insists that local governments can regulate or adversely impact a basic civil right, such as the right to display commercial speech via signage, for ''aesthetic or appearance'' purposes without any qualifying language whatsoever that such regulation is impermissible in the absence of proof, by the government, that (1) there is a substantial government interest which justifies the regulation, (2) the regulation directly advances that interest, and (3) the regulation is narrowly tailored and no more extensive than necessary to achieve that interest. In the case of commercial speech, as protected by the First Amendment, an additional requirement the government must prove is that the regulation leaves open ample alternative avenues of communication. And, if the commercial speech regulation is based on either the content of the message or the identity of the messenger, the government must prove that the interest served by the regulation is compelling.
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    Under either the Fourteenth Amendment or the First Amendment, in the context of land use regulatory schemes, regulations based on unfettered subjective or discretionary determinations by the governing or permitting authority of what is beautiful and or ''appropriate'' are immediately suspect as unconstitutional and subject to intensified judicial scrutiny. Certainly, more than a ''rational relationship'' between the government act and its effect on a basic civil right is required when a fundamental interest is at stake.

Foreclosure from the Debate by Those Most Affected

    The Legislative Guidebook offers ''model statutes'' that are driven by executive orders or institutional authorities. The Guidebook is written without concern for voter opinion or preferences or the legal and economic consequences of its scheme. Further, it was written without opportunity for those most affected to participate in its formulation. The Guidebook authors themselves, in recognition that opposition to their agenda may be encountered, urge those who support the APA program to consider that ''[p]rivate coalition building or consensus building is appropriate when there is little support among legislators or governors for planning law reform or when reform has not been perceived as a statewide issue.''

    The exclusion practiced by the APA in its formulation of a legislative initiative replete with incalculable risks and hardships for many citizens should it be enacted and funded, is not only unconscionable, it undermines the fundamental democratic principles upon which our nation is founded.

    In a self-serving policy ''guideline,'' designed to assuage the very real concerns of many that the Guidebook is intended to impose land-use regulations without citizen accountability, the Guidebook asserts that one ingredient of a successful reform effort is to ''hold public hearings and invite widespread participation'' (Ch. 1–7). Another important ingredient is to make sure ''a study commission is comprised of individuals, elected or not, with varying perspectives'' (Ch. 1–10). Obviously, these ingredients are nothing but window dressing, as evidenced by the APA's failure to invite either widespread participation or varying perspectives during its development of the Guidebook. In fact, it summarily refused entrance to its ''reform'' efforts to not only the individuals who are meeting with the members today, but to many others, as evidenced by the documents you have been given.
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    We do know who did participate, however, in page after page of ''acknowledgements.'' A review of these acknowledgements reveals planners, land use planning professors, attorneys who have only litigated on behalf of government, and national associations of governors, towns, cities, counties and regions. A further review reveals no representatives from real property broker associations, property appraiser associations, chambers of commerce, commercial developers, agricultural or farm groups, or trade associations, with two exceptions: the Home Builders Association—a group that simply passes its added costs on to the beleaguered home buyer, and the Self Storage Association. This latter association, however, has withdrawn its support for the Guidebook. One reason for this withdrawal is that the Directorate in charge of the project reopened discussions for input by several ''environmental'' groups, who changed much of the original product. (I respectfully refer you again to Exhibit 3, which clearly, competently and concisely articulates the problems with the Guidebook and its development.) The Committee members will note there are self-proclaimed defenders of wildlife actively participating, but no defenders of property rights, who have been labeled by the APA as ''special interest groups,'' in seeming unawareness that wildlife defenders are very much representative of special interest groups. And while personnel from such agencies as the EPA and FTA are very much in evidence as ''participants,'' representatives from the Small Business Administration are nowhere to be found.

    There is even a special acknowledgement reserved for HUD personnel. I quote from the final draft (please note that much of this text was removed in the published version to hide the Federal government's involvement):

  ''We especially thank current HUD Secretary Mel Martinez for his support in seeing the project through to its completion; former HUD Secretary Henry G. Cisneros for his backing when the project was launched in 1994; former HUD Secretary Andrew Cuomo, for his staff's support during the project's interim period; current HUD General Assistant Deputy Assistant Secretary Lawrence Thompson; former HUD Assistant Secretary for Policy Development Michael A. Stegman, AICP; HUD Deputy Assistant Secretary for Research Evaluation and Monitoring Xavier de Sousa Briggs; and former Deputy Assistant Secretary for Research, Evaluation, and Monitoring Margery Austin Turner for their continuing support and their vision of the potential of statutory reform.
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  ''James E. Hoben, AICP, supervising community planner in HUD's Office of Policy Development and Research (PDR), was the initial project officer for Growing Smart and provided APA with challenging, insightful, enthusiastic, and stimulating reviews of all work products and, as a consequence, greatly influenced the course of the project. . . .

  ''HUD was particularly helpful in bringing together other federal agency staff in Washington, D.C. who lent their expertise to the preparation of the model statutes and commentary . . .''

    Clearly, HUD staff directly participated in this project. The acknowledgements imply that HUD staff edited it. In spite of the disclaimer that HUD does not endorse the Legislative Guidebook, it is impossible to think otherwise.


    The purpose of the Guidebook is to set forth a legislative ''blueprint'' for zoning and land use planning. With federal funding as an incentive, states are to adopt this blueprint that will mandate ''an integrated state-regional-local planning system that is both vertically and horizontally consistent'' (p. 2–27). Regional and local plans are to be vertically consistent with state plans and vice versa. The plans of local communities are to be horizontally consistent with each other. This inevitably creates a system steeped in bureaucracy with rigid control over local issues. Moreover, the constitutional notion of local ''laboratories of experimentation'' is destroyed.

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    The scope of the Guidebook moves far beyond the regulation of land use planning

    and mandates a broader reach of governmental planning that expressly deals with a wide range of social and economic issues (p. xvii). Model statutes create ancillary departments and programs only tangentially related to land regulation (such as traffic reduction—9–201). The social and economic policies that are mandated reflect the APA's narrow view of how all communities should look and function. For example, suggested model zoning ordinances require development of ''traditional neighborhoods'' (8–201(5)). No alternative views of community development are represented.

    Simply, the Guidebook strongly evidences an effort to ignore 75 years of federal judicial and congressional restraints, policies and procedures implemented to protect the rights of the American people while creating the most diverse and prosperous society in the history of the world. This federal system has successfully integrated market based activities, consumer preferences and interests, and citizens' civil and property rights, while building a livable and sustainable modern society. But the APA and its supporters at the federal level (HUD, FTA, FEMA, EPA) are attempting to turn back the clock to the 1930s—a time before the federal courts and Congress began to correct land-use planning abuses and to assure a regulatory framework that stays within the general bounds of common law and U.S. Constitutional constraints.

    The Guidebook consistently underrates, and in some cases completely ignores, the constraints the federal judiciary has put on the use of police powers to enforce the regulation of normal civil behavior or employ criminal procedure and punishment to civil violations (in fact, the Legislative Guidebook introduces extreme sanctions that I doubt any federal court would find constitutional). Instead, the APA and its partners at HUD have presented land use planning as if it is a process that is constitutional per se, rather than portraying how the process of land use planning decision-making by all state and local governments has been limited or modified by the federal court cases. Additionally, the Legislative Guidebook offers no suggestion of how these court decisions have shifted the evidentiary burden of proof to the government as well as increased the level of judicial scrutiny in certain land use planning cases. In other words, the document fails to explain that in some cases, if the government is going to intervene in the lives of Americans, it must be able to prove more than a rational relationship between the act and the effect, and that its intrusion will achieve a substantial benefit without going any further than necessary to obtain that benefit.
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    In one example, the Legislative Guidebook's presentation of Dolan v. City of Tigard [512 U.S. 374 (1994)], an Oregon case, is a complete misrepresentation of the significance of the case, and possibly of the law that has flowed from it. Prior to 1994, Oregon municipalities had been successfully avoiding compensation for taking tracts of land for ill-defined ''public purposes'' by tying approval of development applications to dedications of property to the city. These dedications were demanded even if the public was neither harmed by the proposed development nor particularly benefited by the ''public purpose'' the dedication was supposed to serve.

    In Dolan, the plaintiff's project would have had no adverse impact whatsoever on the public, and the public benefit of the ''dedication'' was essentially nonexistent. In spite of the Supreme Court's ruling that a dedication must be ''related both in nature and extent to the impact of the proposed development'' (Dolan, supra, p. 391), the implication in the Guidebook is that Dolan is an aberration, not once ''revisited'' by the Supreme Court. Therefore, according to the Guidebook, it is still acceptable for a local government to demand dedications or fee exactions on little more than a ''reasonable relationship'' to the proposed development. In fact, and contrary to the Guidebook's implication, the rule of proportionality was invoked by the Supreme Court in Ehrlich v. Culver City, 512 U.S. 1231 (1994). In this case, the Court vacated a California Supreme Court ruling upholding an impact fee, and remanded ''for further consideration in light of Dolan.'' On remand, the California Supreme Court held that Dolan is applicable to fees attached as conditions to a project [911 P.2d 429 (Cal. 1996)]. Neither the Ehrlich case, nor any other of the numerous lower state and federal court cases upholding the ''essential nexus and rough proportionality'' tests of Dolan, are cited in the Guidebook.
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    To compound its lack of candor regarding the legal constraints applied by the courts to over-zealous land use planning, the APA's public relations programs include a statement on its website that gives a resounding endorsement of its ''Amicus Curiae Committee'' and the briefs filed by said committee ''in cases of importance to the planning profession and the public interest.'' Apparently of especial pride is the fact that four of these briefs were filed in the U.S. Supreme Court. Several cases are listed. I am familiar with three of them—Lorillard Tobacco Co., et al v. Reilly, 121 S.Ct. 2404 (2001); City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687 (1999); and Palazzolo v. Rhode Island, 121 S. Ct. 2448 (2001). (Please see Exhibit 5.)

    Palazzolo and Monterey have already been touched on briefly. In Monterey v. Del Monte, the Supreme Court rejected the APA's position that prior cases decided by the Court did not require that a regulation substantially advance legitimate public interests. Specifically, the Court said, ''Given the posture of the case before us, we decline the suggestions of amici to revisit these precedents'' (referring to, inter alia, Dolan, Lucas v. South Caroline Coastal Council, Yee v. Escondido, Agins v. City of Tiburon). After the city imposed more rigorous demands each of the five times it rejected applications (over a five year period) to develop a parcel of land, the land owner, Del Monte Dunes, successfully brought the case under 42 U.S.C., section 1983, alleging that the city effected a regulatory taking or otherwise injured the property by unlawful acts, without paying compensation or providing an adequate post-deprivation remedy for the loss. In finding for plaintiff on this issue, the jury in the lower court awarded the plaintiff $1.45 million in damages, even though the plaintiff had realized some economic benefit from the property by selling it, during the course of litigation, to the State of California for approximately $800,000. The Supreme Court let the award stand, thereby defeating another favorite APA legal position that compensation is due only when a plaintiff has been denied all economically viable use of the property.
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    In Palazzolo the Supreme Court rejected the APA's argument, in keeping with an earlier case in which the APA's ''amicus'' team also intervened—Suitum v. Tahoe Regional Planning Agency, 520 U.S. 725 (1997)—holding that there is never a requirement that more than one application be submitted and denied for a case to ripen, unless the applicant makes an ''exceedingly grandiose'' proposal, which the Court found not to be the case in Palazzolo. It is interesting to note that the APA in its Palazzolo amicus brief disavowed its amicus brief in Suitum—a brief relied on by the National Association of Home Builders in its amicus brief filed on behalf of the plaintiff. In repudiating its former brief, the APA stated that the Suitum brief did not accurately represent its views, whereas the instant brief did. In the end it did not matter, because the Supreme Court found the APA's position unpersuasive in either case, finding in Palazzolo that a compensatory regulatory takings had occurred, and remanding the case to determine the award (or damages) amount.

    Lorillard Tobacco was a First Amendment case. Here, the Court struck down a Massachusetts law that imposed severe location restrictions on signs advertising tobacco products. The state, and the APA, argued that such restrictions were necessary to discourage tobacco use by minors. Although the Court acknowledged that the state had a substantial, possibly even compelling interest in preventing children from using tobacco, because the regulation impacted speech, based on the content of the speech, the regulation failed constitutional requirements that it be narrowly tailored and no more extensive than necessary to advance the interest. The Court further found that the state's effort to discourage underage tobacco use unduly impinged on advertisers' ''ability to propose a commercial transaction and the adult listener's opportunity to obtain information about products.'' (@ 2427.) Additionally, the Court noted that ''in some geographical areas, these regulations would constitute nearly a total ban on the communication of truthful information about smokeless tobacco and cigars to adult consumers. (@ 2425.)
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    The clear implication of the APA ''amicus curiae'' press release is that the APA's briefs resulted in government wins in all the cases listed, when such implication is, in fact, untrue. Further, I believe it can be reasonably argued that the APA's incredible expansion of moratorium powers as a tool to delay, even ban development while a local government figures out how to stop or severely restrict development under a new ''growing smart'' statute is a deliberate effort to sidestep the ruling in Monterey v. Del Monte Dunes (Chapter 8, Model Statute 8–604). Monterey got into trouble because it had to continuously invent reasons not present in the code to stop development it didn't want. The Guidebook's moratorium statute now legitimizes delay while reasons for denial are worked out.

    As for Lorillard, throughout its whole discussion of signage regulation (either on-premise or off-premise), the Guidebook does not once mention that the First Amendment protects the display of commercial speech on signs, nor does it caution local governments that great care must be taken when regulating such speech, particularly since violation of First Amendment rights may subject the local government to extensive monetary damages under 42 U.S.C., section 1983.

    Thus, while the Legislative Guidebook patently recommends government censorship, noncompensatory takings, and exactions, dedications, and moratoriums almost at will, and a type of criminalized process for civil infractions or violations, it is at the same time inexcusably silent regarding the series of landmark federal cases that have made it clear that the U.S. Constitution—and thus, federal law, oversight and sometimes preemption—applies to and places constraints on local land use planning. For me, this is the most serious of all the Guidebook's errors and omissions. From Gitlow v. New York [268 U.S. 652 (1925)], to Monterey v. Del Monte Dunes (supra), Palazzolo (supra), and Lorillard (supra), American courts have crafted a complex set of judicial precedents that expand and protect civil rights, and thereby ensure the health, safety and welfare of our society as a whole. However, it is apparently the intent of APA to ignore the past 75 years of case law in one swift stroke.
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The High Cost of Legislative Guidebook Policies and Principles on our Consumer Based Economy

    The Legislative Guidebook simplistically asserts that integrating planning through a true master plan and putting A.P.A. members in charge will result in a host of wonderful benefits. However, at no point in this document are the costs presented, even though a cost as well as a benefit analysis is always necessary when proposing regulations that will profoundly affect the ordinary course of human events.

    Land use patterns are a reflection of our culture. Individuals and institutions interact with an intricate cultural mix constantly controlled by legal mandates. Hence, land use planning in the United States is, or should be, responsive to our pluralistic, consumer-oriented and mobile society, which is the most productive society in the world. This elaborate interactive model of decision making is the only reliable method for modifying our society's land use guidelines. Responsible land use planning is a complex process that has, over the years and in concert with other responsible social and economic programs, fostered development of a live-together/work-together society that cannot be rivaled. Part of this achievement is reflected in the fact that we have the most sustainable and livable retail and housing environment in the world. No other country has it.

    The Legislative Guidebook seems intent upon wiping away the incredible changes in lifestyle that have occurred over the last century. One such change is the decline of the traditional stand alone, central business district department store in terms of retail dollars generated. Consumers have increasingly turned away from these forms of retailing as inconvenient and time consuming. Malls, on the other hand, have advanced by bringing many different shops together for a one-stop shopping trip, combined with entertainment and a stimulating visual experience. Is our society saving or losing money with today's shopping patterns? The APA discounts the cost of delays or loss of convenient retailing that takes advantage of economies of scale. But the inefficiencies that APA seeks to build into the system exact a considerable cost. In Europe and Japan those inefficiencies manifest themselves in a 15% to 50% higher retail cost. In the United States, retail efficiencies have dramatically increased the standard of living across the board.
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    In addition to certain economic impacts, there may be an enormous cost involved in building the infrastructure needed to support the dense development called for in the document. We have experienced this problem in Oregon, where whole neighborhoods have rebelled over zoning density increases in areas where streets were too narrow, sidewalks and water management systems nonexistent, and sewer capacity, public safety, parks and schools inadequate to handle the increased population. In Portland, the ''Smart Growth'' philosophy, which ignores consumer preferences entirely, has resulted in misallocation of public resources on a grand scale. For example, as much as 70% of transportation dollars available in the city have been spent on a public transit system that serves 3% of the population, while congested city streets remain in disrepair.

    This sort of outcome means that the benefit cost analysis, particularly where certain codes are concerned, will not be able to stand up in court. Because the Legislative Guidebook ignores Congress and the federal courts on land use planning, encourages violation of federal law, ignores federal regulations that demand compensation for takings, and introduces extremely serious questions about the 14th Amendment guarantees of due process and equal treatment, municipalities that implement its suggestions will face very high legal costs when challenged in court for violating people's civil rights. All this adds an additional cost—litigation expenses municipalities will be forced to pay when their codes get turned over. And as Americans become more and more fed up with people interfering with their civil rights, you can anticipate more lawsuits. Clearly, American lawyers have demonstrated a willingness to go that direction, and if punitives are added to cases brought and won under Title 42, USC section 1983, I think the ensuing litigation may rival that of the asbestos trials—the only difference being that the defendants will be local governments and not large corporations.
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    For an example close to home, after Tigard was forced to pay the Dolans $1.5 million for a bike path the City could have purchased initially for $14,000, but tried to ''take'' instead, shortly thereafter the City of Eugene, Oregon was forced to pay a settlement to Plaintiff Michael Kelley in the approximate amount of $4 million for a similar uncompensated regulatory ''takings'' in violation of the Constitution. Following the Kelley case, Plaintiff Joe Willis filed a class action suit against the City of Eugene on behalf of the many other people who suffered from similar ''takings;'' and the City of Tigard is facing a new challenge, Rogers Machinery v. City of Tigard.

The A.P.A. Agenda: Control of Growth to Achieve No Growth

    The APA, like all trade associations, has as its purpose to advance the interests of its members: in other words, where you sit is where you stand. You will hear much argument that this document represents good land use planning. But the Guidebook has very little to do with land use planning, and a great deal to do with employing and empowering planners.

    If the codes proposed in this document are implemented, the result will be a seizure of American real estate assets, if you will, putting them into the hands of an elite bureaucracy. This bureaucracy will have private attorney general rights, and in the extreme case be able to prosecute you and send you to jail for violating a zoning ordinance.

    Land use planning in Oregon is extolled in various places in the Legislative Guidebook, but the actual story of Oregon is not told there. Let me tell you about the response of Oregonians to Smart Growth.
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 When the City of Milwaukie decided to follow Smart Growth, the entire City Council was recalled. The citizens simply rejected it.

 As Portland has attempted to implement Smart Growth one area at a time, sector after sector of the city has rebelled and in some cases forced a complete overhaul of the City's plans in struggles that have lasted for years and cost the City millions of dollars.

 In Beaverton, a mixed use transit-oriented development called ''The Round'' has sat unfinished—a huge, empty metal skeleton—for two years because no financing can be found to complete the project, despite large taxpayer investments in it.

 Small towns on the outskirts of the Portland metropolitan area have exploded in size because families can no longer afford the high housing costs inside the city's tightly restricted urban growth boundary and are fleeing to the suburbs. Nearby Sherwood has seen a fivefold increase in population in a handful of years, and in February actually put its foot down on any more growth until it can figure out how to provide infrastructure for all the new people.

 The Portland Public School District, which is funded on a per-student basis, is seeing decreasing enrollment as families move to the suburbs, leaving the district in serious financial trouble.

 In December 2001, the Oregon Supreme Court concluded that property taxes in Portland diverted from other government uses and dedicated to urban renewal projects were collected in violation of Oregon's tax limitation law. Failing a reversal, pursuant to a request for reconsideration by Portland, its county (Multnomah) and the Oregon Department of Revenue, the potential refund to property owners may be as high as $30 million. The urban renewal projects that were funded by these tax diversions were for the most part ''Smart Growth'' programs, including plans to construct an interstate light-rail line (connecting Vancouver WA with downtown Portland) at a cost of $35 million, although public support for such construction was tepid at best.
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 After the Portland Development Commission and the Association for Portland Progress launched a study in December 2001 to come up with ways to strengthen and attract retail businesses in the city's downtown Transit Mall, consultants have just recommended reconstruction of the Mall to reinstate curbside parking. This would involve narrowing sidewalks from 30 feet to less than 12 feet in order to revive stagnant and in some cases failing businesses within the Mall proper. Portland architect George Crandall, who presented the proposal said, ''It's very difficult for businesses to be healthy, if there isn't some opportunity for parking on the streets they face.'' The Transit Mall, constructed in 1978, reflects ''Smart Growth'' policies that encourage public transportation and expansive pedestrian sidewalks at the expense of automobile traffic. Today, even the city realizes that something must be done to shore up the downtown retail climate, and the proposal is now headed for full public airing. (See Exhibit 7-article in the 02/28/02 issue of The Oregonian. Also referenced in the article is the rejection by voters of an extension of light-rail in the Mall area.)

    The infringement on Oregonians' constitutional rights under Smart Growth has become so common, that in 2000, Oregonians passed Ballot Measure 7, requiring all state and local governments to pay just compensation when government actions reduced the value of private property. Currently the measure is under review by the state Supreme Court on technical grounds. Given the activist history of the Court, it will undoubtedly find some reason why the measure violates the law. Metro, Portland's regional planning agency, also finds Measure 7 unpalatable. Soon after its enactment, Metro director, Mike Burton, urged in a speech to the Portland City Club (2/16/2001) that an amendment to the Oregon Constitution was necessary to assure that land-use planners could regulate all land uses without fear that those begin regulated could demand compensation. Planning should be a constitutional right, says Burton, because ''uncoordinated land use threatens orderly development, the environment and the welfare of the people.''
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    Despite the discomfiture of Oregon's planning community with Measure 7, lawmakers have been working on enactment of revised versions of the measure. It is my belief that, sooner or later, the state and its local governments may well find themselves in the position of having to pay just compensation for the diminution in land values created by Smart Growth legislation.

    In Exhibit 6, the unfortunate impacts of ''Growing Smart'' programs in Oregon are further outlined in a letter from the counsel for the Associated Equipment Distributors trade organization.

    The failure of Smart Growth in Oregon does not stop at the artificial urban growth boundary encapsulating Portland's metropolitan area. In the years since Governor Tom McCall implemented statewide planning, dramatically limiting private property rights in order to preserve farm and forest land, productive farm land has actually decreased, both in terms of significance and actual size. Under Smart Grown policies, farmers have not been able to change their practices and crops to take advantage of world markets and changing consumer tastes, and many have lost the ability to use their land altogether. Forest industries have been hit extremely hard, and reductions in logging have decimated the economies of entire towns. The state tax and land use policies have kept industries out of Oregon to the point where Oregon is suffering from an 8% unemployment rate at a time when the rest of the nation is panicked over an unemployment rate of 4–5%.

    Given the obvious adverse impact of Smart Growth programs and policies, one has to wonder why Smart Growth proponents push onward. To understand this, one must analyze their underlying motives. This is not too difficult if you are an Oregonian. The motives, in Oregon, are grounded not in smart growth, but in no growth. This mindset traces its roots to Oregon Governor Tom McCall. Governor McCall made national headlines in 1971 after telling a CBS News interviewer what later became the unofficial state motto: ''Come and visit us again and again. This is a state of excitement. But, for heaven's sake, don't come here to live'' (often shortened to the simple statement, ''please visit, but don't stay''). Twenty-seven years later, this sentiment was echoed by Oregon's Governor John Kitzhaber when he told The Oregonian, ''If I had the power, I'd turn off the spigot and keep Oregon as it is today.''
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    Thus, the Oregon model is intended to and does limit growth, regardless of consumer preferences or citizens' desires. For example, Metro recently began advocating initiatives that are designed to stop regional government spending on highway and other built-environment construction. Its stated reason: Such initiatives are necessary to stop ''sprawl.'' Its real reason: Such initiatives are necessary to stop growth. These no-growth initiatives advance earlier efforts by Metro Director, Mike Burton, to require all residents and businesses in the Portland area to pay a ''transportation utility fee.'' Such a fee, according to Mr. Burton, ''recognizes that transportation is truly a public utility like water, sewer, telephone and electricity.'' The difference, of course, is that people pay for the water, sewer, telephone, and electricity they actually use, while Metro wants the transportation fees for light-rail lines that few use and that have been repeatedly rejected by voters.

    Measure 7 is a direct result of a grassroots rebellion against the excesses of Smart Growth policies as practiced in Oregon. I predict that within two years, possibly less, Oregon will no longer be the poster child of ''Smart Growth'' truths; instead, it will be the poster child of ''Smart Growth'' fictions.

    And Oregon is not the only state adversely impacted by implementation of Smart Growth policies and programs. Exhibit 8 discloses the concern of many members of the House of Representatives of the state of Washington. These concerns echo those of a majority of Oregonians: 1) increased congestion in urban areas, 2) increased housing costs in urban areas, 3) decreased economic development in rural area, and 4) an ever increasing intrusion by state and local governments into the everyday lives of ordinary citizens seeking to use and enjoy their property.
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    Several Congressional members have expressed their grave concerns over the Legislative Guidebook's apparent focus on avoiding the ''just compensation'' requirements of the Fifth Amendment. The adverse impact of the proposed regulations on small businesses and the lack of broad-based participation in the development of the Guidebook are also mentioned as areas of concern. (Please see Exhibit 9—a letter to Secretary Mel Martinez signed by 21 Congressmen.)


    The costs to the American public if the policies advocated in the Legislative Guidebook are implemented will be enormous, in terms of economic decline, litigation, and impact on civil rights. Further, many key stakeholders were left out of the process, and the document has been carefully ideologically crafted in such a way that no professional or academic authority who disagreed with it, and/or even stated a different viewpoint, was cited.

    To correct the bias and redress the imbalance evident in the Legislative Guidebook, I believe it essential that further funding be enjoined and the Community Character Act be tabled until there has been an opportunity for additional public hearings at which opposing viewpoints and concerns may be presented for discussion and inclusion in the final product. I urge this Committee to take such action before state and local governments begin to believe that the silence of Congress means the blessing of Congress.

    If the fast track the project is now on is not blocked, literally millions of dollars in actual costs may be inflicted on the American public at a time when we can ill afford it.
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    Following is a brief summary of constitutional infirmities of the Guidebook.

    The Guidebook is a collection of model statutes designed to completely overhaul existing land use planning laws, replacing local control over economic and land use planning with federally crafted and state mandated standards. The Guidebook represents an effort to impose upon all 50 states land use regulations developed at the federal level. Under the Guidebook,

 Model statutes are presented for states to adopt—these model statutes often direct state action. For example, model statute 9–201 states that the state Department of Transportation shall adopt and implement a transportation demand management program. The model statute then provides specific details of what shall be mandated under such a program. By adopting the model statutes, a state is subjecting itself to the mandates and policies of the federal government.

 Uniform national standards have been devised that include technical specifications even for such traditionally local issues as parking and landscaping. (8–101)

 The state planning agency must coordinate state programs with the federal government. (4–102(2))
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 The practices of a small minority of states are recommended for adoption by all states—for example, the Guidebook recommends and authorizes amortization of non-conforming uses while currently only eight states authorize even a limited form of what the Guidebook recommends. (8–502)

Expansion of regulatory power

    The regulatory power of state governments over local governments, as well as the regulatory power of local governments over individuals and businesses, is greatly expanded. Model statutes, drafted to micro-manage and control small businesses, developers and individual homeowners, have the potential to impose serious financial hardships. Under the Guidebook,

 No local comprehensive plan or significant amendment thereto can be adopted by a local government unless it has been reviewed by the state. (7–402.2)

 Model statutes confer broad regulatory power in ''local governments''—local governments being broadly defined as ''any county, municipality, village, town, township, borough, city or other general purpose political subdivision.'' (3–101) This means, for example, that New York County, New York City and the Borough of Manhattan could all regulate land use in Times Square.

 Additional layers of bureaucracy are created—for example, allowing local control of wetlands in addition to the state and federal controls. (9–101(2))

 A single state planning agency is created and has the responsibility for creating a comprehensive plan addressing the economic, social and physical development of every community in a state. (4–102)
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 A State Futures Commission is created in order to formulate a ''Strategic Futures Plan'' to present to the state legislature—a discussion of and recommendations concerning economic, demographic, sociological, educational, technological and related issues affecting the state and each local community. (4–201(7))

 State agencies are given approval authority over local government regulatory plans—this could violate state constitutions, like Georgia's, that give zoning authority directly to counties and municipalities. (7–402.2)

 State legislatures must require local governments to draft ordinances to mandate that virtually all employers adopt and implement a commute trip reduction program which must include, among other things, designation of a transportation coordinator, annual reporting to local authorities and implementation of transportation measures, such as providing subsidies for transit fares and permitting the use of the employer's vehicles for carpooling. (9–201)

 Local governments can to require a site plan—an often expensive, detailed scaled drawing depicting development or use-prior to approval of any and all development permits. (8–302(1))

 Local governments are encouraged to adopt zoning ordinances that promote the use of transfers and purchases of development rights, with the goal of frustrating efficient private growth. (p. 9–56–57; p. 9–64)

Unconstitutionality of Guidebook policies and model statutes
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    Many of the model statutes are constitutionally questionable—indeed, the Guidebook offers several warnings of possible constitutional challenges and offers tips on drafting model statutes in order to skirt potential litigation. (e.g., p. 8–178) The following are just some examples of the Guidebook's trampling of constitutional protections.

First Amendment:

 Local governments are given sweeping power to regulate individual businesses. Among other powers, model statutes expressly authorize local governments to regulate the ''location, period of display, size, height, spacing, movement and aesthetic features of signs, including the locations at which signs may and may not be placed.'' (8–201(2)(h)) This allows local governments virtually unlimited control over the ability of a businessperson to advertise in his or her place of business. The local government has the ability to control even the content of the sign.

 A business can be found criminally liable for violation of an ordinance regulating the aesthetic content of its sign. (11–302; 8–201(3)(m))

Fourth Amendment:

 Administrative warrants can be issued to search private property if the search is consistent with a valid administrative scheme, such as housing safety—probable cause is not required. Inspection warrants issued pursuant to an administrative scheme can be easier to get than criminal search warrants. (11–104(4); see also Camara v. Municipal Court, 387 U.S. 523 (1987) and See v. City of Seattle, 387 U.S. 541 (1987))
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 Local governments are authorized to obtain inspection warrants for suspected land violations without first notifying the owner of the property that the property is the subject of an investigation. (11–101(4)–(7))

 Local governments may obtain an inspection warrant based upon any allegation that someone is in violation of land regulations—such an allegation may be made by anyone, such as neighbors, nearby businesses or other ''interested citizens.'' (11–101(6))

 Local officials and police are exempted from common law and statutory trespass when they are on owner's property to inspect possible land use violations. Property owners lose the right to exclude others from their property. (11–101(5))

 Inspection warrants can be sought for any land use violation—local officials could rezone high crime residential areas enabling code enforcement officers (accompanied by the police) to search every building in the rezoned area for suspected violations. (11–101(4))

 While the local police are not authorized to participate per se in the inspection of property for land use violations, the model statute does allow them to accompany local code enforcement personnel and enter and inspect the property without such entrance into the property being considered a search by the police. (11–101(5)) This could allow the police to surreptitiously gather evidence for possible criminal charges against a property owner.

Fifth Amendment:

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 The use of moratoria is encouraged—providing local governments with a tool to ban development for a specified period of time, depriving property owners of the right to develop their property. (p. 8–183) However, moratoria are not permitted in communities adopting a ''traditional neighborhood'' smart growth plan. (p. 8–184)

 There is no meaningful time limit for moratoria when the local government still perceives that a need for moratoria persists. (8–604(8)(b))

 The designation of any area as a ''Design Review District,'' is allowed—these areas are then subject to mandated interior and exterior standards of design. (9–301)

 A ''Certificate of Appropriateness'' is required before a business owner in a Design Review District can make any changes to the interior or exterior of his or her business—a process involving layers of bureaucracy and subject to the personal opinions of government officials on design, taste and appropriateness. (9–301(7))

 Local governments are empowered to designate undeveloped private land as an Historic Landmark that has archeological or cultural interest and require a Certificate of Appropriateness before the land can be developed. (9–301(1)(g))

 Local governments can define any ''lands and/or water bodies'' that ''provide protection to or habitat for natural resources, living or non-living'' as Critical and Sensitive Areas and can regulate and prohibit land use in these areas without limitation. (9–101(3)(c); 9–101(5)(f); p. 9–9)

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 The Guidebook authorizes zoning of land uses and structures within the local jurisdiction without regard for current uses. (8–201(3))

 Current subdivisions or resubdivisions of land that have not been approved by the local government pursuant to the Guidebook's recommendations are considered void. (8–301(4)(b)) Subdivision includes any land that is divided into two or more parcels for development or use. (8–101)

 Local governments are permitted to halt all profitable uses on a land without just compensation. (9–402(1)) The Guidebook authorizes compensating the owner for the ''use'' only, not for the value of the land. (9–402(5)(b))

 Local governments can prevent development or use of land by forcing the owner to accept development rights on another parcel of land (9–401). This violates the federal and state constitutions that demand that just compensation be paid in money. (p. 9–43)

 The Guidebook criminalizes and allows imprisonment for anyone who intentionally or knowingly violates any land development regulation, including, for example, the failure to conform to design standards set for a Design Review District or the failure to establish a commute trip reduction program. (11–302; p. 11–37)

 Local governments can demand dedications in exchange for the issuance of a building permit without proper justification. The model statute only requires that a dedication be in ''reasonable proportion'' to the demand for such improvements that are ''reasonably attributed'' to the proposed development. (8–601(4)) The Supreme Court, however, explicitly rejected such a reasonable relationship test, stating that, ''[W]e do not adopt [the reasonable relationship test] as such . . . We think a term such as ''rough proportionality'' best encapsulates what we hold to be the requirement of the Fifth Amendment. No precise mathematical calculation is required, but the city must make some sort of individualized determination that the required dedication is related both in nature and extent to the impact of the proposed development.'' (Dolan v. City of Tigard, 512 U.S. 374, 391 (1994))
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 The Guidebook promotes the amortization of non-conforming uses, structures and signs over time. Essentially, the local government can pass an ordinance making certain current uses of property illegal—thus rendering the current uses ''non-conforming'' with new regulations. The local government then sets a timeframe for the phase-out or ''amortization'' of the non-conforming uses. (p. 8–109) This allows local governments to get rid of unwanted uses and/or property owners without having to provide any compensation. The Guidebook specifically names signs as easy targets for amortization (8–502(4)). Such amortization provisions violate several state constitutional and statutes. (p. 8–119)

Tenth Amendment:

 The model statutes in the Guidebook are directives for state action—for example, Section 4–203 states that the state planning office shall prepare a state comprehensive plan and directs the state to undertake supporting studies in 16 different areas in its preparation of its comprehensive plan. (4–203(3)) By adopting the model statutes, a state is subjecting itself to the mandates of the federal government.

 Uniform national standards hinder the ability of developers to work with local governments to plan and build developments. For example, even if a developer achieves local approval on a project, the developer will be subject to possibly prohibitive uniform national standards that are predetermined on the federal and state level, having little or no relevance in the developer's community. (8–101)

Fourteenth Amendment:
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 The model statute on historic and design review districts provides for local governments to arbitrarily designate any area as a ''Design Review Districts'' and subject property owners in just those areas to mandatory standards on the design and aesthetics of the interior and exterior of their property. (9–301) This amounts to an intentional difference in treatment and a lack of rational basis for that different treatment.



    In a letter to Senator Chafee, the APA is telling the Senate, and by extension, the House, that 78% of persons participating in an APA-sponsored survey believe ''it is important for the 107th Congress to help communities solve problems associated with urban growth.'' Moreover, according to the APA letter, ''three-quarters of voters also support providing incentives to help promote smart growth and improve planning.'' In making these statements, the APA is relying on a survey conducted by Belden Russonello & Stewart of Washington, D.C., presumably at APA's behest. A copy of this survey is attached as Exhibit 10.

    Even a cursory review of this survey reveals it is ''cooked'' (leading questions that everyone would answer ''correctly''; gross underrepresentation of minorities; overrepresentation in the high income and low income brackets; no disclosure of the costs of the policies labeled as ''smart growth'' in survey question 14), with the consequent ''cooking'' of the data in order to support APA's predetermined outcome.

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    For example, the survey in no way supports the statement that ''78% believe it is important for the 107th Congress to help communities solve problems associated with urban growth.'' The survey does not even mention the 107th Congress. In fact, the only section that addresses federal government intervention is the one that asks, ''how much confidence do you have in each of the following to make the best decision on land use issues affecting your area?'' Those expressing ''a great deal of'' or ''some'' confidence in city government represented 61% of those surveyed. County government also received a ''great deal-some'' confidence level from 61% of the survey group, while state government did even better—62%. The entity receiving the most ''confidence'' votes was neighborhood associations and civic groups—67%. On the other hand, the federal government received only 46% of the ''great deal-some'' confidence choices. This figure is considerably less than the 78% claimed by the APA. In fact, 52% of those surveyed responded they had ''not very much'' (21%) or ''very little'' (31%) confidence in the federal government's ability to make the best land use decisions.






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    Mr. CHABOT. Thank you, Mr. Claus.

    Mr. Manley?


    Mr. MANLEY. Thank you, Mr. Chairman Chabot. I'm happy to be here. I'm here on behalf of the American Planning Association, and I am accompanied by Mr. Stuart Meck, who was the principal author and investigator of the Growing Smart project.

    I was on the task force that helped design the basic approach. And as the Chairman may remember, probably 80 percent of my clients are the people who are in the regulated community: property owners, businesspeople, and neighbors.
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    And, for the record, almost every week I walk from my home on 9th Street through Over-the-Rhine to Findlay Market and back.

    Now, Mr. Chairman, I'm very pleased to be here, and I hope that I can be helpful. The American Planning Association chose to focus extensive effort and resources on the reform of planning enabling legislation quite simply because our planning tools are out of date, from another era. These laws form the foundation of how planning occurs in communities, thus they affect the well-being of all citizens because they shape both the built and natural environments in our urban and rural areas.

    Despite this vital role, planning in most States continues to be guided by a model statute drafted by an advisory committee appointed by the then-Commerce Secretary Herbert Hoover in the Twenties. When these acts were drafted, the Nation was a different place. Approaches that worked in the 1920's are plainly inadequate for today. Citizens are demanding new choices concerning land use, housing, employment, transportation, and environment.

    In response to citizen interest, the concept of smart growth has arisen. I have seen this groundswell movement all over my areas of activity.

    Smart growth is a set of public policies designed not to stifle growth but to promote development in ways that create communities of balance, consumer choice, and lasting value.

    Let me use Ohio for an example. Ohio for decades was a leader in planning, and now we're finding that we are looking backward, we're ineffective, largely because Ohio has not rethought the issues around land use regulation since the 1920's. In those days, urban settlements like Cincinnati were surrounded by many miles of farm land.
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    All across the State, units of local government have zoning without any comprehensive planning. As a result, many planning decisions or zoning decisions are based upon cronyism, prejudice, and political popularity. This is very costly to the communities, because development becomes haphazard, and that's why you find all over the country abandoned shopping centers that were put in the wrong place.

    And it also is very damaging to the property owners and developers because it creates uncertainty. There is no way in which a developer or a property owner in Ohio can look at a—buy a piece of property and look at the comprehensive plan for the area and the zoning code and anticipate what he can do or cannot do. When he walks into a zoning hearing, he knows that it's unpredictable what the outcome would be.

    As a result, the investment—the development community and the ownership community is handicapped. And in my observation, this is true not only here in Ohio, but in other States across the country.

    Jack Kemp was the Secretary of HUD, and he was the man who solicited a report, which resulted in a recommendation that we rethink the way in which we do zoning.

    And the book that was produced by Mr. Meck and many, many other people under guidelines that were created when our task force was in place is really nothing more than an encyclopedic discussion of the problems and options for solutions. It's a big menu.

    And to say that—to pick and choose what part of the menu are to be applied to a particular community is up to the local community to pick and choose what they want. It is not a top-down arrangement. It actually—it's coming as a demand from a wide spectrum of the public at large.
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    And to suggest that there's something wrong with having all these options is like saying, ''Oh, you shouldn't publish the 'Encyclopedia Britannica' without removing the chapter on abortion.'' It's nonsense.

    The study is a clear, helpful tool to help communities solve the difficult problems that they all recognize, and it gives a wide menu of options. And all the options are options that have been tried from place to place and have a proven track record. However, they are not recommended for every community. There are alternative ways to go about it, and it's up to the local community to select what alternatives they want to pursue.

    One final thing: Zoning laws have, to the best of my knowledge, always had criminal sanctions. And that's not a new idea. I don't know why it would be even suggested that was a new idea. But they always have, and, indeed, I even arrested somebody who tried to tear down trees in Greenhills in violation of the zoning thing, zoning code.

    But, in any event, I appreciate the opportunity to be here, and I'll be available to answer questions, with Mr. Meck's help, at the appropriate time.

    [The prepared statement of Mr. Manley follows:]


    Good morning Chairman Chabot, Ranking Member Nadler, and members of the subcommittee, I am Robert Manley, partner with the law firm Manley, Burke, Fischer and Lipton. I appear before you today on behalf of the American Planning Association, and I am accompanied today by Stuart Meck, FAICP, principal author and investigator of the Growing Smart project.
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    The American Planning Association represents 32,000 professional planners, planning commissioners, land use professionals, and citizen activists interested in shaping the vision for the future of their communities. APA's members are involved in formulating planning policies and land-use provisions at all levels of government. APA has a long history of promoting public policies to improve quality of life in the nation's communities and neighborhoods through better planning.

    In addition to being a long-time member of the American Planning Association, I am an attorney in private practice dealing with a large number of matters on real estate development, land use, local government law, and environmental law. I have had the opportunity to represent developers, communities, and citizens alike in the course of my years of practice and in doing so I have developed a deep understanding of the issues and complexities that arise in conjunction with planning and development.

    It was my experience in dealing with outdated state planning statutes and inadequate local planning that led me to participate in the original APA task force that designed the project under discussion this morning, Growing Smart.

    Mr. Chairman and Ranking Member Nadler, I appreciate the opportunity to offer testimony at this important hearing. Growing Smart is a landmark research project that promises to be an invaluable tool for improving our communities' economic vitality and quality of life enjoyed by their residents. I hope my appearance here this morning will help dispel many of the myths and misinformation regarding Growing Smart, as well as outline the vital importance of planning reform initiatives.
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    Growing Smart is the American Planning Association's (APA) seven-year project to draft the next generation of model planning and zoning legislation. The project has involved a wide variety of partners and advisors and has produced multiple research and education products related to the revision of state enabling legislation for planning and land use.

    APA chose to focus such a high level of attention and resources on the reform of planning enabling legislation because, quite simply, our planning tools date from another era. These laws form the foundation of how planning occurs in communities. State statutes delegate power to local governments to prepare comprehensive plans, zone land, regulate subdivisions, require the installation of public facilities, and redevelop older areas. Thus, they affect the well being of all citizens because they shape both the built and natural environments in our urban and rural areas.

    Despite this vital role, planning in most states continues to be guided by model statutes drafted by then-Commerce Secretary Herbert Hoover in the 1920s. These models, the Standard City Planning and Zoning Enabling Acts, were designed to support the rise of zoning and were almost universally adopted. When these acts were drafted, the nation was a different place. Growth was largely confined to central cities and the few suburbs served by commuter trains. In the 1920s, we saw land principally as a commodity, something to be bought and sold, whose value needed protection based on zoning. After World War II, a variety of factors shifted development outward from central cities to the vast rural areas beyond.

    Today, we view land as a resource for which there are competing social uses. The planning process is the best means for communities to make decisions about those uses. Approaches that worked in the 1920s are plainly inadequate for today. Citizens are demanding new choices concerning land use, housing, employment, transportation, and the environment. These demands are reflected in the broad and growing public movement coalescing around the concept of smart growth.
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    Smart growth is a set of public policies designed not to stifle growth, as some critics would have it, but to promote development in ways that create communities of balance, consumer choice, and lasting value. Smart growth is planning, designing, developing, and revitalizing communities to promote a sense of place, preserve natural and cultural resources, minimize public outlays, and equitably distribute the costs and benefits of development. Smart growth can be the basis for promoting economic development and preserving property values, not the antithesis. Updated planning statutes are essential to empowering communities to pursue a smart growth vision consistent with their local vision and values.

    Ohio, for decades, had been a leader in sound planning. The first Comprehensive Master Plan of any city in North America was done in 1925 for the City of Cincinnati. Euclid v. Amber Reality, 272 U.S. 279 (1926), the case where the Supreme Court of the United States upheld the power of governments to engage in regulation of land through zoning arose through Ohio. The Ohio Planning Conference is the oldest organization of citizens and professional planners in the United States having been founded in 1917.

    Ohio has fallen from a position of leadership to a position of backwardness and ineffectiveness, largely because Ohio has not rethought issues around land use regulation since the 1920s. In those days, urban settlements were surrounded by many miles of farmland. Ever since suburbia began to develop the farmland around major cities has been replaced by independent urban settlements. Each community has its own zoning without focusing on the relation between the community and the region in which it exists. All across the state, unites of local government have zoning without any comprehensive planning document that is reasonably up to date. As a result, many zoning decisions are made based upon cronyism prejudice and political popularity.
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    This is very costly to the communities and it is very costly to developers. Communities suffer because without a current comprehensive master plan, they make zoning decisions without any guidelines. Developers and property owners suffer because there is no predictability. When they walk into a zoning hearing, they have no idea what the outcome will be. They also have no basis on which to develop investment-backed expectations when they buy real estate.

    If Ohio rethinks the land use regulation policies, the state and local governments will look for a way to develop regional plans through cooperation among several local governments and foster conformity between zoning decisions and these regional plans.

    The reality is that different municipalities in the same region are not competing with each other. It is the region that is competing with the Toronto region, the Munich region, the Barcelona region, and various regions within the United States. At the present time, land use policies and zoning policies in Ohio are as Balkanized as historically public affairs have been Balkanized in Yugoslavia.

    Earlier this week I was speaking before a number of citizen planners on planning commissions from southwestern Ohio. One of them asked how to get Ohio back into a position of leadership. I was happy to be able to point to American Planning Association's Growing Smart Legislative Guide Book as a menu of options that can be selected to fit the special needs of different regions within the state.

    The status of land use regulation does great harm to property owners and developers. This is manifested by the reality that any group of Nimbys (Not in My Back Yard) can keep any development tied up in the courts any where from four to seven years. If the state of Ohio were to encourage the local governments to develop comprehensive regional plans and to administer zoning in compliance with those plans, developers and property owners would have reasonable predictability and would be less vulnerable to protracted delays caused by vexatious zoning litigation initiated by Nimbys.
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    Not only does the present chaotic situation damage developers and property owners, it damages the public good because wrong decisions are made for the wrong reasons on a regular basis. These wrong decisions damage not only the property owners, but also their neighbors.

    When a property owner buys real estate, the property owner should be able to look at the existing comprehensive plan for the area and the zoning and have a reasonable understanding of the uses that are going to be available to the property owner. That is rarely true in Ohio today.

    I have had enough experience in other parts of the United States to say that is rarely true throughout most of the United States. This is largely for the same reason, that is, local and state officials have not rethought the issues since the 1920s.

    The Growing Smart Legislative Guide Book is similar to an encyclopedia of factors to be considered that offers a diversified menu of approaches that state and local governments can apply to themselves and to their regions.

    The idea for Growing Smart originated from two sources at about the same time. The concept of a new generation of model planning and zoning enabling legislation was first recommended by the Advisory Commission on Regulatory Barriers to Affordable Housing, which was created during the administration of President George Bush and Secretary Jack Kemp at HUD. The Commission, in its 1991 report, ''Not in My Back Yard'' Removing Barriers to Affordable Housing, recommended that:
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    ''HUD assume a leadership role and work with government and private-industry groups, such as the American Bar Association, the American Planning Association, National Association of Home Builders, National Governors' Association, League of Cities, State community affairs agencies, and others to develop consensus-based model codes and statutes for use by State and local governments. Specifically, the Commission sees a need for a new model State zoning enabling act with a fair-share component, model impact-fee standards, and a model land-development and subdivision-control ordinance.''

    I would like to note that all of the recommendations in the Commission's report were subsequently included in APA's Growing SmartSM Legislative Guidebook, including state and local barrier removal plans, state zoning reform, conflict resolution or mediation, streamlining state regulatory responsibility, time limits on processing and approvals, and state impact fee standards.

    Also in 1991, the Chapter Presidents Council of the American Planning Association asked the APA Board of Directors to direct the Research Department to investigate the development of new model planning and zoning enabling legislation to replace the two model acts from the 1920s. The council believed that APA should provide leadership in the reform of the nation's planning statutes to meet the needs of the next century. APA created a task force to develop an approach to draft the model legislation. The task force of planners and attorneys met in Chicago in March 1991. I was honored to be part of that original task force. I knew and respected the professional experience of most of the task force members. We worked very hard, but there seemed a certain obvious courses of action that emerged from the collegial deliberation of the highly experienced persons who worked intensively together. The report of that task force ultimately led to the submission of a proposal to the U.S. Department of Housing and Urban Development and the Henry M. Jackson Foundation in 1993, and funding of the proposal in 1994.
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    The work of the Growing Smart project during the intervening years culminated recently in the publication of the Growing Smart Legislative Guidebook: Model Statutes for Planning and the Management of Change, 2002 Edition. The Guidebook is essentially a compendium and analysis of options for planning statutory reform. The Guidebook presents an overview of key issues, sample statutes from states addressing these issues, and commentary on various approaches.

    The development of the Guidebook was guided by several basic principles. Most importantly, that, unlike the 1920s model ordinances, there is can be no ''one-size-fits-all'' approach. Instead, the Guidebook provides a range of alternatives, with commentary on the pros and cons of each approach, out of the recognition that states should select or adapt the approach that best fits the local context. Some critics maintain that the Guidebook is a single prescription that states are being urged to adopt. This is simply not the case.

    The Guidebook does not make specific recommendations for each state. States can pick and choose from the proposals for enabling legislation in the Guidebook. The Guidebook is reference book, not a policy prescription. Because it is a compendium of options, with commentary, it cannot be ''adopted.'' Further, because enabling legislation ''enables,'' local governments can decide themselves whether or not they wish to use certain powers granted to them.

    Further, the project from the outset only considered including models based on existing statutes whose impact and effectiveness could be objectively evaluated. The Guidebook does not contain or recommend new, untried statutes. Again, some critics have erroneously claimed that the Guidebook contains prescriptions for radical change. The reality is that the Guidebook contains nothing that is not already on the books, with a track record. The product is invaluable for modernization efforts because it carefully details the implications and impacts of statutes from across the nation with commentary on how these might be adapted or modified for particular circumstances.
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    Another cornerstone of Growing Smart was broad-based participation and review. From its inception, an advisory council consisting of national organizations and representatives of an array of constituencies. HUD insisted on the creation of an advisory board to help provide feedback on initial drafts of the Guidebook. This body, called the Growing Smart Directorate, was comprised of all the leading national associations representing public officials: the National League of Cities; U.S. Conference of Mayors, National Association of Counties; National Conference of State Legislatures; National Association of Towns and Townships, Council of State Community Development Agencies, National Association of Regional Councils, and the American Planning Association. It was later expanded at HUD's request to include three members-at-large—one each for the built environment, the natural environment, and municipal law. The 18-member Directorate met twice each year for the duration of the project, hammering out consensus on all but the most contentious issues.

    Each member of the Directorate was afforded the opportunity to write dissenting opinions on unresolved issues about which he or she felt strongly. The final Guidebook contains two such opinions, one written by Jim McElfish (member-at-large for the natural environment) and the other written by Paul Barru (member-at-large for the built environment). In addition to this formal advisorybody, APA continuously conducted outreach regarding Growing Smart with all manner of organizations and interest groups. In early 1995, we announced the Growing SmartSM project by mailing a cover letter, a 4-page project summary, and an ''Invitation for Involvement'' questionnaire to the CEOs of 161 national and regional interest groups. The questionnaire asked respondents to define for themselves the type of involvement that best fit their organization.

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    From 1995 to the present, APA has maintained a very robust outreach program. In addition to working with the advisory directorate, project staff mailed a semi-annual project newsletter to a list of over 800. We maintained a heavily visited project web site with all past newsletters, working papers, and published materials. As evidence of the project's openness to comment from all quarters, APA received over 320 pages of comments in just the last year of the project. Environmental groups, smart growth advocates, and organizations representing builders and developers all offered recommendations. Each comment was carefully considered. APA's approach to responding to each comment was carefully documented in a series of ''change memos.'' By our estimate, over 85 percent of the suggestions made in these comment letters were accommodated in the Guidebook. The project was presented and discussed at conferences and workshops across the country as well. Growing Smart was certainly not conducted behind closed doors.

    The Growing Smart project was undertaken through a cooperative agreement between the U.S. Department of Housing and Urban Development and APA. HUD also served as the lead agency for five other Federal agencies, including the Federal Highway Administration and the Federal Transit Administration in the U.S. Department of Transportation, the U.S. Department of Agriculture Rural Economic and Community Development Administration, the U.S. Environmental Protection Agency, and the Federal Emergency Management Agency.

    Cooperative agreements, as opposed to outright grants, require that the parties to the agreement share in the costs of the project. Over the project's seven years, about 28 percent of the total project cost of $2.47 million was paid for by private sources, comprised of APA, two foundations, and a corporation. The remaining 72 percent, or $1.78 million, was paid for by the six federal agencies. Private funding came from APA, the Henry M. Jackson Foundation of Seattle, Washington, and the Annie E. Casey Foundation of Baltimore, Maryland. The Siemens Corporation of Washington, D.C. provided a grant for the development of model statutes on state and local telecommunications planning.
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    APA's contractual relationship with HUD was clear and unambiguous with regard to the project's content. HUD was allowed, based on the agreement, the opportunity to reject final publication if the research was deemed faulty. HUD was also permitted to submit a dissenting opinion as part of the guidebook. The Department opted to forego both options.

    However, critics of the project have misconstrued the import of these contract provisions and HUD's final actions. At no time was the project intended to represent an official HUD policy statement. It was, and is, a contracted research project whose findings were, and are, part of the public domain. APA always retained final editorial license. In fact, virtually the first words in the Guidebook are notice to the reader that ''the contents of this report are the views of the authors and do not necessarily reflect the views or policies of HUD, the U.S. Government, or any other project sponsor.''

    While the Guidebook addresses the full array of planning-related policy concerns, today's hearing centers around two specific issues: impacts on economic development, particularly minority business owners and entrepreneurs, and impacts on private property rights. Additionally, the specter of vast litigation over these provisions has been raised. When it comes to promoting vibrant local economies, producing new small businesses, and protecting private property rights, we share common cause with our critics.

    However, we believe that the planning reform improvements discussed and analyzed in Growing Smart are important components of realizing these objectives. Our current planning and development patterns are too often hindering new business development and generating conflict over private property. Growing Smart offers vital assistance to states and communities struggling with the consequences of change, whether rapid development or economic decline, and promotes policies that can lead to innovative solutions to improving local quality of life through better planning and land use.
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    Planners represent the public interest and that includes small businesses. We strongly believe the existing pattern of sprawl does more to discourage small minority business than any other single thing. Reforming planning statutes would curb the flight of investment from urban neighborhoods. As Sam Staley of the Reason Public Policy Institute has shown in his ''Giving a Leg Up to Bootstrap Entrepreneurship'', sprawl is the antithesis of reinvigorating central-city economies. Growing Smart encourages the streamlining of regulations and the removal of subsidies to favor greenfield development.

    The impacts of sprawl under the current, out-dated system fall heavily on minority-owned businesses. For example, a 1998 study of Small Business Administration loan guarantees in the Chicago metropolitan region found that a disproportionate number went to higher-income, suburban fringe communities, which are also predominately white. Better planning would help promote reinvestment in minority neighborhoods and create development patterns with greater predictability and efficiency to spur, not inhibit, economic growth.

    Reform envisioned and enabled by Growing Smart would provide improved predictability in the planning and development process. This kind of predictability does not aid only the development and construction industry, as important as they are. It also creates a better climate for all business investment, be it start-ups, expansions or relocations. Similarly, the kind of state and local planning processes espoused by all the optional statutory models contained in the Guidebook promotes efficiency in the investment of public funds in the location of government facilities and in transportation and utility infrastructure.

    As in the business world, these public investments, if wisely and strategically made, can build upon and extend private investments, thereby lessening the need for new tax revenues. If poorly made—as often happens in places where the haphazard, low-density development called sprawl occurs—these public investments can be wasteful and fail to leverage private investment. So rather than constraining small business development or being inimical to it in any way, the Growing Smart Legislative Guidebook actually proposes options for a rational framework within which sound investments can be made.
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    Finally let me emphasize that there is no better defense of private property than a good plan, implemented. Property has little value in the marketplace absent access, utilities, and our system of laws and administration that protects individual rights. Good planning assures everyone, not just the moneyed or powerful, equal treatment in the development process. Plans ensure development decisions will not change at the whim of local politics and special interests, but will be carried out over time on behalf of the whole community and its diverse interests. Good planning assures schools, parks, streets, utilities, fire and police stations and emergency services will be there to support private investment. Time after time, poll after poll, places Americans most want to live or visit, with the strongest economies, are those places that have a clear vision, a sound plan and effective and fair implementation.

    Thank you, Mr. Chairman, Mr. Ranking Member Nadler, for the opportunity to address some of the concerns raised regarding Growing Smart and to detail for the Subcommittee the value of this project. One prominent syndicated editorial writer described Growing Smart as a ''gift to the nation—tools we need to cope with a tidal wave of development . . . not some single planning recipe . . . but a menu culled from statute books across the nation.'' I certainly believe this project represents a landmark research product that helps improve communities and neighborhoods across the country through better planning.

    This concludes my testimony, and I would be happy to answer any questions at the appropriate time.

    Mr. CHABOT. Thank you, Mr. Manley.

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    Mr. Hymans?


    Mr. HYMANS. Good afternoon, Mr. Chairman, Congresswoman. My name is Geoffrey William Hymans, and I'm senior counsel for the Republican Caucus of the Washington State House of Representatives. My principle duties include advising the caucus on land use and transportation issues.

    Mr. CHABOT. Would you pull that mike a little bit closer? I think it may be a little bit difficult for the folks to hear.

    Mr. HYMANS. Is that better?

    I come before you today on behalf of the citizens, businesspeople, and property owners of Washington State to express serious concerns regarding the American Planning Association legislative guidebook and to urge you to deny any funding to State and local governments to implement the guidebook.

    The State of Washington has had 10 years of experience under a State-mandated growth management regime. The results of this experiment have been dramatic: increased congestion in our urban areas; increased housing costs; decreased economic development in our rural areas; a shift in development and prosperity from the rural parts of the State to the urban areas; and an ever-increasing amount of regulation by both State and local governments, not to mention the huge expenditures required by such regulation.
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    My written materials give you a short summary of the act, and I can provide a more extensive history to the Committee staff, if requested. But the extensive regulatory system described in my written materials, existing at both the State and local levels, simply breeds further regulation.

    The perfect example of this, as described in my written materials, are concurrency requirements contained in Washington's GMA with regards to transportation facilities and recommended in the APA legislative guidebook for other infrastructure. These planning requirements, local legislative implementation, administrative appeals, and agency programs and assistance have not been cheap.

    By way of example, Jefferson County, a small county of 25,000 population, has spent $3 million and counting on its GMA implementation. The amount spent statewide, at both the State and local levels, is easily in the low hundreds of millions of dollars.

    If Congress is considering grants to implement these policies nationwide, it will not be cheap.

    The Puget Sound region in Washington has developed some of the worst congestion in the country over the past 10 years, the time period coinciding with Washington's growth management scheme. By now, a large body of research shows that the growth management schemes, particularly those that use urban growth boundaries and related methods to increase density, also increase congestion.

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    This is not really surprising. We start with the fact that Washington, like many States around the Nation, has reached almost a saturation point of one registered vehicle per licensed driver in the State. Therefore, the simple math of congestion goes like this: If you double density within a certain geographic area, even over time, but don't either double road capacity or have a large shift from low-capacity vehicles, such as cars, to high-capacity vehicles, such as buses, you will double congestion on the roads in that area.

    Planners have an answer for this: Make the commute and the congestion so bad that folks will be forced to get out of their cars and take transit.

    Yet even in the most dense urban areas of Washington, around Seattle and Tacoma, transit usage fluctuates, depending on what figures you look at, between 10 and 30 percent. This means that 70 to 90 percent of those new people you have placed in a more dense area are going to be driving their single-occupancy vehicles on the roads.

    In Washington, we have already adopted transportation demand management programs, such as HOV lanes, commute trip reduction programs, and intelligent traffic control measures, not to mention already having a very extensive transit system available and building a new light rail.

    Most people still drive solo, and the more dense you make an urban area, the more folks will want to use the limited road space.

    Unless there is a massive road infrastructure investment in dollar amounts that will dwarf even the expensive smart growth implementation cost discussed above, adopting these density-promoting policies guarantees more congested roads.
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    Seattle has also been famous in the past decade for its high cost of housing. This is not just a Seattle problem. Housing costs have gone up around the State. While some of this is due to income growth, the question shouldn't be whether smart growth schemes are the sole cause of unaffordable housing.

    One of the primary purposes of the GMA is to promote affordable housing. So if urban growth boundaries are contributing to increased housing costs, then there's reason to question whether such a law should've been adopted in the first place.

    Three major studies show that the GMA has contributed to the decrease of affordable housing in Washington. Two of these studies were conducted by the Washington State University's Center for Real Estate Research. The first study found a significant 35.5 percent increase in residential lot prices market-wide resulting from the implementation of the growth management act in Clark County. A similar 38.7 percent increase is shown for residential lots located within the urban growth area.

    The second study, also by the institute, in Clark County looked specifically at housing affordability instead of at lot price. This study examined 12 quarters prior to and subsequent to GMA implementation. It controlled for many external factors, as did the price index used in the study. The central finding was: The study reveals a 15.97 percent adverse real price, resale home affordability effect in Clark County as of the end of 1997.

    This means that a typical resale home sold for $19,749 more than it would have in 1997 absent the measured GMA effect, and that's in 1992 dollars.
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    Finally, the most recent and comprehensive study was issued in December 2001 by the Reason Public Policy Institute. This extensive study made several findings, but the conclusion was that as much as 26 percent of the housing-price increases at the county level in Washington State may be attributed to the GMA. Overall, the GMA slowed progress in increased housing affordability statewide by as much as 5.1 percent, since housing prices increased at a faster rate than income during the period. The results suggest that population density has an important impact on housing prices as well. Thus, policies that encourage more compact development may contribute to a decline in affordable housing rather than an increase.

    The cause is simple: Decrease the supply of buildable land, yet maintain or increase the demand for housing, and costs go up. Add to that factors such as increased process costs and impact fees, and you can see how it's ironic that smart growth leads to a decrease in the supply of affordable housing.

    Finally, I would like speak about the rural economic shift in Washington. Economic development in Washington's rural areas has come to a virtual standstill. And as the agriculture-based economies of such rural areas have suffered over the past few years, local communities have not been able to turn to other industries for jobs because of the development restrictions contained in the State's smart growth statutes.

    This has caused a shift of wealth from rural areas to urban areas. If we look at data from the Northwest Income Indicators Project from the implementation of GMA, we find that virtually all economic indicators as a percentage of the statewide totals or as a percentage of statewide averages have been falling in eastern Washington rural counties and rising in western Washington metropolitan counties.
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    The Republican members of the Washington State House of Representatives did not believe that a Republican Administration could be party to encouraging these destructive policies. This is why the Republican Caucus sent a letter to HUD Secretary Martinez urging HUD to reject the guidebook.

    We urge you, the Members of the House, to reject any funding requests to assist State and local governments in implementing the APA's legislative guidebook. Thank you very much.

    [The prepared statement of Mr. Hymans follows:]


    My name is Geoffrey William Hymans. I am Senior Counsel to the Republican Caucus of the Washington State House of Representatives. My principal duties include advising the caucus on land use and transportation issues. Prior to joining the legislature, I was an attorney with the large Seattle-based law firm of Williams, Kastner, and Gibbs, specializing in land use issues. In Washington State this means specializing in the deceptively named Growth Management Act and the local comprehensive plans and development regulations adopted under the act.

    I come before you today on behalf of the citizens, businesspeople, and property owners of Washington State to express serious concerns regarding the American Planning Association (APA) Legislative Guidebook (Guidebook), and to urge you to deny any funding to state and local governments to implement the misguided schemes contained within the HUD/APA Guidebook.
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    The State of Washington has had ten years of experience under a state-mandated ''growth management'' regime. The results of this experiment have been dramatic:

1) increased congestion in our urban areas;

2) increased housing costs, particularly in our urban areas;

3) decreased economic development in our rural areas ;

4) a shift in development and prosperity from the rural parts of the state to the urban areas;

5) an ever-increasing amount of regulation by both the state and local governments, not to mention the huge expenditures required by such regulation.

    The state of Washington has had twelve years of experience with ''smartgrowth'' and ''growth management'' regimes. Next to the states of Oregon and Florida, Washington has the longest experience with these land use controls in the nation. And, unfortunately, Washington's version of growth management ranks second only to Oregon in terms of the restrictive nature of its state-mandated land use controls.

    Washington first adopted the Growth Management Act, or ''GMA'' for short, in 1990. Although Washington state had been growing at a fairly robust pace, adding roughly a million people during the 1970s and 700,000 during the 1980s, the growth rate was still roughly linear. The precipitating act for the adoption of the Growth Management Act was the filing of Initiative 547, which proposed highly restrictive growth controls.
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    Washington is an initiative state, as are all West Coast states. The people can propose legislation by collecting a qualifying number of signatures, at which point the initiative is placed on the ballot. According to the ''old hands'' at the Washington state legislature, this ballot initiative spurred a group of urban legislators to ''do something'' about ''controlling growth'' in Washington. The legislature passed SHB 2929 on July 1, 1990. Ironically, in November of that same year the voters rejected Initiative 547 by a vote of 986,505 to 327,339—a 3 to 1 margin.

    In July of 1991, Washington state passed the second half of the GMA, ESHB 1025. While the act has been amended virtually every year since, it has remained substantially similar to its 1991 provisions.

    If I were to give you a detailed explanation of everything the act does, I would be testifying till next Thursday. And since Washington's legislative session ends next week, I am needed at home. But I will give you a very quick overview of the provisions of the act, with the hope that these highlights demonstrate the high costs, the increase in state government control over traditionally local processes, and the potential for misuse of the expanded planning and permitting processes that have accompanied the GMA in Washington.

    There are thirteen planning goals in the GMA. These include promoting affordable housing, encouraging efficient transportation systems, encouraging development in urban areas, encouraging economic development, protecting natural resources, and ensuring that public facilities are in place to serve development. In the abstract, no one could disagree with the goals of the act. But the implementation scheme is drastically flawed.
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    Counties and cities within counties that reach certain thresholds in either population or population growth are required to adopt comprehensive plans consistent with the state act, and to adopt development regulations (such as zoning, subdivision, critical areas and concurrency ordinances) consistent with their comprehensive plans. Twenty-nine of Washington's 39 counties, containing 95% of the state's population, currently meet these requirements and plan under the act.

    Counties planning under GMA must adopt Urban Growth Areas (UGAs) and Urban Growth Boundaries (UGBs). These areas are supposed to be sufficient to accommodate projected population growth for 20 years. Outside these boundaries, ''urban'' levels of growth—which are only vaguely defined by the state act as growth requiring ''urban services'' and at undefined ''urban densities''—are banned. These density levels have been set by the Growth Management Hearings Boards. For example, one board set the ''bright line'' density at one house per five acres. This means that on one side of the UGB zoning of one house every 4 acres is considered too ''urban,'' while on the other side zoning of one house every 5 acres is considered too ''rural.''

    Unelected state Growth Management Hearings Boards, and there are three serving separate geographic areas in Washington, hear appeals and decide whether the local plans and development regulations are ''consistent'' with the GMA. These growth boards, in addition to deciding the density question discussed above, have ordered municipalities to redraw their urban growth boundaries, have ordered increased ''no-touch'' buffers around certain fish-bearing streams to be set in place by local governments, and have limited the kinds of businesses that can locate in areas that have been designated as ''rural.'' Further, these growth boards have given great deference to state agency ''guidance'' documents and state ''model'' growth management ordinances, leading to de facto state control over local decisions even when the act itself was designed to work from the bottom-up.
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    The GMA is, in the parlance of the APA's legislative guidebook, both vertically and horizontally integrated. Local plans must conform to the state act, and local plans must conform to the plans of adjoining municipalities. County-wide planning policies (CWPPs) trump local plans where they conflict. And while this mandated coordination can result in an easier time locating essential facilities, it also can result in rather harsh top-down planning decisions. Just last year Washington was on the verge of a revolt by many counties when sex-predator transition and housing facilities were declared essential public facilities and the state planned to force counties to allocate such housing on an equal basis among themselves and their cities, using the CWPP process.

    All of these regulations—on both the state and local levels—breed further regulations. A perfect example of this is ''concurrency'' requirements, currently contained in Washington's GMA with regards to transportation facilities and recommended in the APA Legislative Guidebook for most infrastructure. These prescriptions require local governments to deny development where local facilities do not meet some predetermined ''level of service.'' However, it is precisely the ''density'' requirements embodied by these so-called ''smartgrowth'' policies that create the congestion in the first place (which will be further discussed below). The answer by state and local governments? Further regulation, such as ''transportation demand management'' ordinances and mandated ''transit-oriented development,'' development moratoriums, and making development contingent on the payment of huge ''impact'' fees exacted to expand roads overburdened by the increased density. An ever increasing cycle of control over individual's use of their property, without a hint of compensation provided to affected landowners.

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    These planning requirements, local legislative implementation, administrative appeals, and agency programs and assistance have not been cheap. By way of example, Jefferson County, a small county of 25,000 population, has spent $3 million (and counting) on its GMA implementation. The amount spent statewide at both the state and local level is easily in the high tens of millions, and probably in the low hundreds of millions. If Congress is considering grants to implement these policies nationwide, it will not be cheap.

    And this doesn't even count the costs to private citizens. The increased costs to move a business which is now nonconforming, the increased housing costs which will be discussed below, the increased costs from urban congestion worsened by increased densities, the increased process costs, and the increased costs associated with multiple land use appeals made possible by the redundant levels of planning and implementation.

    Here is one example from my own personal experience when I was a land use lawyer in private practice. An individual wanted to rezone property that was across the street from dense residential (apartments) to put up his own apartment building. Bordering the back of his property was single-home residential. This is the classic case where a local government balances the community interests and makes a decision. Given the discretion granted to local governments, these cases prior to GMA usually involved one appeal from the administrative decision to superior court, and that was it.

    Now though, it is far more complex, with more avenues for parties opposed to the project to appeal. Because the zoning, or development regulation, must match the comprehensive plan, you need to get both a zoning change and a comprehensive plan change. The latter is not cheap, as one must hire consultants to demonstrate how the proposed change fits within the comprehensive plan and the act. While these are often processed together by the local government, the comprehensive plan change can be appealed to a growth management hearings board. That board will determine if the change complied with the act. This decision can be appealed on up through the court system. Meanwhile, this delay increases the carrying costs of the project. Finally, after the comprehensive plan amendment is approved, and if the development regulation is found to be consistent with the comprehensive plan, you can start to apply for the permits to actually build the project under the new land use scheme. Which can generate a whole new round of appeals. A simple project like this one can easily cost $20,000 dollars in legal fees, plus fees to planning consultants, traffic engineers (if traffic considerations play a part of the plan), etc. These costs put such projects out of the reach of mom-and-pop developers, leaving the housing market dominated by big developers who can afford to play this game. Of course, fans of the status quo, including no-growth groups, radical environmentalists who oppose development, and local ''NIMBY'' groups of concerned neighbors, are given far more avenues by which to oppose development.
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    Did Washington need this act? Certainly not. In 1990, the year GMA was adopted, just over 3% of Washington's land was used for housing, industrial, and commercial purposes—broadly classified as ''urban'' purposes. 37.5% of Washington's land was in agricultural production. This meant that 40.5% of Washington's land was in ''human use.'' Therefore, almost 60% of the land in Washington is still open space, largely owned by the federal government as national forest land, national parks, and other federal facilities. In 1990, before the GMA was adopted, 82.9% of Washington's citizens lived in a metropolitan area. In 1996, after GMA had been fully implemented in most counties, 82.8% lived inside urban areas. And while completely updated figures aren't yet available from the 2000 census, a current map of the ''urban growth areas'' in Washington produced by a state agency clearly shows how little of Washington is still ''developed.'' (Attached.)


    The Puget Sound region in Washington has developed some of the worst congestion in the country over the past ten years, the time period coinciding with Washington's growth management scheme. By now, a large body of research shows that growth management schemes, particularly those that use ''urban growth boundaries'' and related methods to increase density, also increase congestion.

    This is not really surprising. We start with the fact that Washington, like many states around the nation, has almost reached a saturation point with almost one registered vehicle per licensed driver in the state. Therefore, the simple math of congestion goes like this: if you double density within a certain geographic area, but don't either double road capacity or have a large shift from low capacity vehicles (such as single-occupant cars) to high capacity vehicles (such as buses), you will double congestion on the roads in that area.
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    Planning to increase congestion is also not surprising, since the same folks who advocate for growth controls usually advocate for ''multimodal''—read transit—forms of transportation. The only problem is that the public won't go along.

    Even in the most dense urban areas of Washington around Seattle and Tacoma, transit usage fluctuates, depending on what figures you look at, between 10–30%. This means that 70–90% of those new people you have placed into a more dense area are going to be driving their single-occupancy vehicles on the roads. It is not surprising that congestion keeps increasing.

    Further, the public won't go along with the density scheme in another way that contributes to congestion. The American dream is to live in a single-family home with a bit of property. Far more of Washington's citizens have voted with their pocketbooks for this lifestyle over living in apartments and condos inside urban areas. But if we are rezoning areas for increased density, and the public doesn't want to live in these dense neighborhoods, then the public is willing to drive longer distances to commute between home and work. Their home conditions have, so far, outweighed the burdens of increased commute times (which have not increased by a huge margin anyway, according to Texas Transportation Institute and census data). So if more folks are driving between urban areas that contain their job sites because they don't want to live in the dense neighborhoods that surround these areas, yet aren't allowed to develop housing in the ''rural'' areas that separate the urban islands, you have yet another prescription for increased congestion.

    Planners have an answer for this. Make the commute and the congestion so bad that folks will be forced to get out of their cars and take transit. Portland planners have admitted as much, but short of very coercive transportation and land use policies this simply won't work.
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    One of the best papers on this is by Genevieve Giuliano of the USC School of Policy, Planning, and Development. In ''Land Use Policy and Transportation: Why we won't get there from here,'' Professor Giuliano concludes that only drastic measures would actually decrease auto usage. Can any of you see adding a few dollars gas tax as politically viable? What about banning single-occupant auto use in urban areas?

    In Washington, we have already adopted ''transportation demand management programs'' such as HOV (high occupancy vehicle) lanes, commute trip reduction programs mandating that large employers provide incentives for their employees not to commute by single-occupancy car, and intelligent traffic control measures—not to mention already having a very extensive transit system available.

    Most people still drive solo. And the more dense you make an urban area, the more folks will want to use the limited road space. Unless there is a massive road infrastructure investment in dollar amounts that will dwarf even the expensive smartgrowth implementation costs discussed above, adopting these density-promoting policies guarantees more congested roads.

Lack of Affordable Housing

    At the same time we have increased congestion, housing prices in the Puget Sound region have skyrocketed, in large part due to the limitations on supply that have accompanied growth management.

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    Seattle has been almost as famous for the past decade for its high cost of housing as for its congested roads. But this is not only a Seattle problem. Housing costs have been driven up state wide. While a lot of this is due to income growth, the question shouldn't be whether smartgrowth schemes are the sole cause of unaffordable housing. One of the primary purposes of the GMA is to promote affordable housing, so if urban growth boundaries are contributing to increased housing costs then there is reason to question whether such laws should have been adopted in the first place.

    Between 1990 and 2000 the median house price in Washington increased by 41.6% placing Washington 46th out of 50 states in terms of the change in affordability. A different measure, comparing the ratio of the median house price to median income, placed Washington 49th out of 51 (including DC) in terms of the change in affordability represented by the change in this ratio from 1990 to 2000.

    While there have been relatively few studies that have looked at the contribution of growth management to decreased housing affordability, those that have have established a clear connection. And if we remember that the GMA has only been fully implemented for the past 6–8 years in the largest counties, and less than that in some smaller counties, we can continue to track the data to confirm the early findings.

    Two of the Washington studies were conducted by the Washington State University's Center for Real Estate Research. The first study, from March 28, 1997, was titled ''Urban Growth Boundaries and Lot Price.'' This study examined the urban Clark County in southwest Washington. It found ''a significant 35.5% increase in residential lot prices market-wide resulting from implementation of the Growth Management Act in Clark County. A similar 38.7% increase is shown for residential lots located within the urban growth area.'' (Wolveton, Purdie, and Crellin, pg. 9.) This data is very significant, as the imposition of the Clark County UGB represented the ''closing'' of the Portland metropolitan area, thereby giving a unique window into what happens when a formerly open pressure valve for growth shuts.
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    A second study of Clark County by the Center (Wolverton/Wolff 2001) looked specifically at Housing Affordability instead of at lot price. This study examined 12 quarters prior and subsequent to GMA implementation. It controlled for factors such as excess supply, construction costs, population growth, interest rates, and seasonal factors. The price index used in the study controlled for distance from the Vancouver central business district, distance to freeway interchange, bedroom and bathroom count, home age, lot size, outbuilding size, fireplaces, garage, central air conditioning, and home quality. The central finding was:

''the study reveals a 15.97% adverse real price, resale home affordability effect in Clark County as of the end of 1997. This means that the typical resale home sold for $19,749 more than it would have in 1997 absent the measured GMA effect (measured in 1992 dollars.)''

    Finally, the most recent, and comprehensive, study was issued in December, 2001by the Reason Public Policy Institute. This extensive study made several findings, but the conclusion was that:

''as much as 26 percent of the housing-price increases at the county level in Washington State may be attributed to the GMA. Overall, the GMA slowed progress in increased housing affordability statewide by as much as 5.1 percent, since housing prices increased at a faster rate than income during this period. The results suggest that population density has an important impact on housing prices as well. Thus, policies that encourage more compact development may contribute to a decline in housing affordability rather than an increase.''

    The cause of this are simple. Decrease the supply of buildable land, yet maintain or increase the demand for housing, and the cost will go up. Add to that factors such as increased process costs cited above and impact fees tacked on to housing prices stemming from concurrency requirements of the GMA, and one can quickly see how ''smartgrowth'' schemes can lead, ironically, to decreasing the supply of affordable housing.
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    This has some very interesting unintended consequences. As Matthew E. Kahn of Tufts University noted in his paper, ''Does Sprawl reduce the Black/White Housing Consumption Gap,'' (Housing Policy Debate, Volume 12, Issue 1, Fannie Mae Foundation 2001), decreased housing affordability hinders the reduction of the black/white housing consumption gap, which has been steadily closing for 80 years.

    What is the solution to this ''smartgrowth'' affordable housing dilemma? Well, the smart thing to do might be to open up the market by increasing the supply of buildable lands for housing, and removing land use controls to let local jurisdictions incorporate densities according to their needs. One could even imagine tax incentives for the development of low-income and affordable housing. But unfortunately, too many ''smartgrowth'' supporters in Washington would rather see direct subsidies to allow folks to live in areas that are otherwise unaffordable under the GMA. Of course, where do these subsidies come from? They are taxpayer dollars, taken by government to solve a problem created by government land use control mandates in the first place.

Rural-Urban Economic Shift

    Finally, economic development in Washington's rural areas has come to a virtual standstill. As the agriculture-based economies of such rural areas have suffered over the past few years, local communities have not been able to turn to other industries for jobs because of the development restrictions contained in the state's ''smartgrowth'' statutes. This has caused a shift in wealth from the rural areas of Washington to urban areas. And since more of these urban areas are located in Western Washington than in Eastern Washington (convenient shorthand for the split along the Cascade mountains), this wealth shift is moving West.
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    If we look at data from the Northwest Income Indicators Project at Washington State University from the implementation of the GMA on the county level (roughly 1995), we find that virtually all economic indicators as a percentage of the statewide totals or as percentage of statewide averages have been falling in Eastern Washington counties and in nonmetropolitan Western Washington counties, but rising in Western Washington Metropolitan counties. This is true for employment, total industry earnings, average earnings per job, personal income, and per capita income. For now, all that we can note is the correlation between these economic measures and the implementation of GMA. But this wealth and opportunity shift deserves further exploration. It is exactly what one would expect when it is easier to develop in areas that are already much more urbanized, and therefore offer more development opportunities than areas that are largely rural, where urban growth boundaries will be more restrictive and opportunities to develop more limited.


    The Republican members of the Washington State House of Representatives did not believe that a Republican administration could be party to encouraging these destructive policies to be adopted by other states and local governments. This is why the Republican Caucus of the Washington State House of Representatives sent a letter to HUD Secretary Martinez urging HUD to reject the Guidebook.

    It is not hard to fathom the APA's interest in pursuing this guidebook. The APA will expand its membership as the number of planners expands exponentially with the implementation of this ''smartgrowth'' scheme. Further, under these very restrictive proposed local and state laws, the power of those who make a living by ''planning'' the lives of citizens will also radically increase.
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    For the most part, these planners are unelected, as are the state bureaucrats who oversee these ''smartgrowth'' programs. Such programs, when instituted, therefore constitute a massive shift of responsibility and accountability from the people and their elected local officials to labyrinth planning departments and state agencies.

    We in Washington have lived with this nightmare for ten years, and despite bipartisan legislative efforts, two democratic Governors from the state's most heavily urbanized area, Seattle, have vetoed reasonable reforms to Washington's Growth Management Act. However, we would urge you, the members of the House, to avoid assisting those dedicated to increasing government's scope, and their planning association and radical environmentalist allies, in spreading this ''smartgrowth'' disease across the country. We urge you to reject any funding requests to assist state and local governments in implementing the APA's Legislative Guidebook. If the House is interested in addressing state and local planning methods, it should begin an inclusive process in which all interested parties might participate to develop a national consensus on this issue.


    Mr. CHABOT. Thank you, Mr. Hymans. You tricked me; you said ''finally,'' and I thought you were wrapping up, and then you said ''finally'' a second time. [Laughter.]

    Mr. HYMANS. That's an old trick from the Washington Statehouse.

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    Mr. CHABOT. Okay.

    At this point, the Members who are present here have 5 minutes to ask questions of the panel members. I'll begin with myself.

    My first questions I would address to all of the panel members and anybody who would like to take a shot at it is welcome to do so. And if there's no objection, Mr. Meck is able to answer as well.

    Do any of you have any concerns about an executive branch agency contracting out to interested parties the drafting of proposed legislation, which if not objected to by the agency, becomes official government work product? Do you think that amounts to a sort of compounded delegation doctrine in which Congress delegates to executive branch agencies, then those agencies delegate to interested private parties? And if so, does that concern any of you or not concern? And anybody who wants to take a shot at it—Mr. Manley?

    Mr. MANLEY. Mr. Chairman, we have a model for that with the NIH. The NIH contracts out to universities on a regular basis to do research in the biomedical fields, and the research investigators publish their results. And the government does not assume responsibility for that.

    And the same thing is true here. Mr. Meck and his team did research, and they're publishing an encyclopedic document to help local government decision-makers make better informed decisions.

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    And what is more, that's the same—the same thing that was done here was done by Mr. Hoover when he was Secretary of Commerce back in the Twenties. And Alfred Bettman from Cincinnati was a principal draftsman in these old enabling statutes. And unfortunately, he made the assumption that the whole world was like Cincinnati, and he drafted it that way. And that's one of the reasons we're in this problem, and we haven't thought about it since then.

    Mr. CHABOT. I think we'd both agree, it's too bad the whole world isn't like Cincinnati; right, Mr. Manley? [Laughter.]

    Mr. MANLEY. Absolutely. I'm a Cincinnati nationalist.

    Mr. CHABOT. Absolutely.

    Mr. Claus?

    Mr. CLAUS. We have an acute concern with just exactly that. There are a number of reasons.

    First, APA has an established history on what they take on the issues, whether they comply with the Federal court decisions or not.

    Secondarily, there has been a deliberate part on the HUD staff to withhold input, and we will supply you information on that. What happened is, this was an agenda-driven proposal that, if you look at it, was aimed at promoting jobs for identifiable people to the exclusion of other people. And any time you do not put a disclaimer in, then this gets out to the local governments with their granting powers that the Federal Government has—they're going misconstrue this as Federal policy.
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    And if you look at the acknowledgements, they mislead you. Look at Bender's acknowledgements in their legal series; they mislead you. Look at the links on FEMA, HUD, and EPA's Web sites, and they mislead you. You would literally believe this is Federal policy when, take something like the 1970 Rehabilitation Removal Act; in spite of Mr. Manley's suggestion there is a menu, there isn't. It is biased to one side. The menu doesn't give the other side like just compensation.

    The most innovative program created in wetlands restoration was created by this Congress around buying easements. And the key was appraising land and then paying just compensation for taking those uses, which, in effect, is zoning. That was never even mentioned. What happens when you get documents by agenda-driven organization—without that clear separation, we will fight this over and over and be told it's Federal policy.

    Mr. CHABOT. Thank you.

    I've only got 1 minute left, unfortunately. So I'd like to go to my next question, if I could.

    Mr. Alford, what, if any, impact do you believe that this would have on minority businesses?

    Mr. ALFORD. I think it would be devastating. I gave a good example of San Francisco. I think we would have more Fillmore districts happening throughout this country.
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    In my written testimony, I talked about the interstate system, when it was built in the '50's and '60's, how they ripped open black business districts in the urban areas. You look at I-65, you look at 395 here, you look at the Dan Ryan Expressway—they just ripped through urban communities and the business districts scattered with no recourse and basically destroyed those business operations, destroyed the black middle-class.

    And within the next decade, we started having urban blight, for some reason. And that's one of the main ingredients, was the poor planning of the interstate system.

    I see this as replicating the same thing.

    Mr. CHABOT. Thank you very much. I've only got 10 seconds left on the clock here, and I wouldn't even get the question out, so I'll yield back the balance of my time. And I'll turn now to the gentlelady from Pennsylvania.

    Ms. HART. If you'd like, I could yield you some of my time, Mr. Chairman.

    Mr. CHABOT. If you have any left, that would be great.

    Ms. HART. Okay. I'll do that, but I just want to ask one quick question.

    I was a State senator for 10 years and believe it is appropriate to have the zoning-type decisions made on the local level. I'm assuming that every State does that. And if anybody on the panel has any reason to disagree with that statement, I need to hear it, especially from Washington State.
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    Mr. HYMANS. The way Washington State works is we have a mandated—we have a State statute called the Growth Management Act, which mandates certain things be included in every local government's comprehensive plan. Then we have an unelected hearing board, called the Growth Management Hearing Board. This hearing board, because the State act is so vague—you know, it requires that urban growth not occur outside the urban growth boundary, but it doesn't define what urban growth is.

    So we have this unelected State hearing board that makes those decisions for the State. And so those decisions, while many of the smart growth advocates claim this is a bottom-up system, because of the operation of the hearings board, it is a State-oriented top-down system when you get into the details of the act.

    Ms. HART. So if your local governments make a determination about their plan, there's always somebody at the State level who can basically tear it apart.

    Mr. HYMANS. There's an activist—a hard-core activist culture out there that is willing to appeal any local government decision that they disagree with, and those are usually growth-oriented decisions, to these growth hearing boards, which then tend to reverse the local governments.

    Ms. HART. Okay. Mr. Meck?

    Mr. MECK. I happen to agree with his assessment of the hearing boards. The hearing boards are a serious flaw in the Washington system, which is why we didn't include them in the legislative guidebook.
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    In essence, what the hearing boards are doing in Washington State is making policy on an ad hoc basis. And the problems that he identifies are problems. And unfortunately, the system has resisted efforts to reform it.

    Our guidebook, as I said, does not recommend a system in that respect to provide for hearing boards.

    I will say, though, that one of the things we did embrace from Washington State that appears in chapter 10 of the legislative guidebook—I don't know if you have it. It's about the size of, you know, a construction block. But——

    Ms. HART. I——

    Mr. MECK. Okay.

    Washington State has an excellent law on—or, judicial review of land use decisions, and we felt it was the best such law in the Nation. And so the mechanism that we established in the legislative guidebook to deal with disputes over land use issues, apart from the growth management hearing board that is in court, we drew from Washington State. It's a first-rate statute.

    Ms. HART. Thanks.

    Mr. Claus, I believe you had a comment.
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    Mr. CLAUS. Yes. Well, first of all, obviously, all of us support local decisions, but that is not really as much of the issue we object with as—first of all, my first case was Metromedia v. San Diego, that ended up at the Supreme Court. Current Solicitor General Ted Olson was on the winning side; I was working for the losing side.

    And what happened is, in no surprise to most of us who have some sense of the Constitution, we lost because of first amendment intrusion. It was a free speech issue. It wasn't a fifth or a 14th.

    And then the result was, we ended up paying—the City of San Diego ended up paying court costs. We had no justification for doing what we had done. It was what you called rational relationships. We specified, we're doing this for the following reasons. They were not true. And as a result, we paid for the litigation.

    What has happened, in these extremely intrusive cases, where you're intruding and allowing neighbors now to intrude, the courts have come in and put a burden of intermediate to strict scrutiny on the State.

    And it is only fair that people drafting a book explain that when you start manipulating civil rights, and you've gone far, far beyond property rights, and you're destroying businesses, you take an adult responsibility as outlined in FEMA and outlined in the Uniform Standards of Appraisal Practice.

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    That side of the menu, I am sorry, is not in the legislative guidebook. It is simply as if you've gone in to say let's liberalize the State's powers without giving them any responsibility.

    And we encourage the Federal courts to keep doing what they're doing, because it's what makes land use planning livable, workable, and leaving some our basic rights to our homes intact.

    I had the amortization phrase recommended in the legislative guidebook on my home, and I could not get a loan until the city realized what it did. It destroys your ability.

    And the lower income, particularly minorities in this, inevitably end up with these nonconforming zones that the planners next time will get it right.

    Ms. HART. So it's not only invasive, it's extremely burdensome.

    Mr. CLAUS. It's burdensome in every sense.

    Ms. HART. Thank you.

    I yield back, Mr. Chairman.

    Mr. CHABOT. I thank the gentlelady for yielding. I'm going to yield myself, by unanimous consent, an additional 2 minutes to just ask one final question about the review process on the project, and I'll direct the question either to Mr. Manley or Mr. Meck, and then any of the other gentlemen that would like to respond.
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    Relative to requests for outside parties to submit information or have input in the project, what was the procedure that was followed? And I'd be interested to know what sort of concerns the other panel members might have had about that process, how it was carried out.

    Mr. MECK. You want me to respond?

    Mr. CHABOT. Yes. Either you or Mr. Manley.

    Mr. MECK. I'd be happy to.

    At the outset of the project—the project actually began in 1994. We sent out questionnaires to a group of about 150 to 160 associations, and about 50 or 60 of them responded, with varying degrees of interest. In some cases, we had people who were willing to write working papers for us to suggest different strategies. In other cases, we had people who simply wanted to review our newsletter.

    We also created a directorate, and advisory committee—this was, by the way, at HUD's recommendation—that consisted—I would not call them the regulated community. I would call them associations of local government officials. So we had the representatives from the National League of Cities, the U.S. Conference of Mayors, the National Association of Towns and Townships, the National Association of Regional Councils. And they served as our sounding board for the legislative guidebook.

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    As we developed individual drafts of the model legislation and commentary, people would give us comments. And in the last phase of the project, as we indicated in Mr. Manley's testimony, we got approximately 320 to 330 single-spaced pages of comments, a lot of them from, for example, from the National Association of Homebuilders. In Mr. Claus' testimony, there's a letter that was sent to us.

    In each case—in each case—we responded in writing in a series of highly detailed memos, which we'd be happy to provide the Committee. And in about 85 percent of the cases, we made changes based on them, because people—we felt if people took the time to read this stuff—and, you know, zoning law ain't that exciting—we were going to respond to it.

    And we—what this process did, in my opinion, is identify for us options that we would normally have not thought of by ourselves.

    Mr. CHABOT. Thank you.

    Would the other gentlemen like to respond? Mr. Claus? Mr. Hymans?

    Mr. CLAUS. Well, I mean, first of all, let's go back to what the legislative guidebook is. It's an agenda-driven manuscript written by APA with them having the final, total editorial rights. And if you look at the list of authors they cite, they're either in lockstep with their agenda or they're not included.

    So aside from the fact that there really never was any kind of public hearing, they excluded people's testimony and picked and choose as it went.
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    And in our case, we had two specific people contact the research director, Mr. William Klein, and I will put a memo in here, asking him, does this legislative guidebook impact on us, and he said no. Now, that pretty well stops the comment.

    The problem is that when I went to David Engel at HUD and there is—I'm pushing on this issue. I was told I was not welcome to comment. Now, as you can guess, I'm not particularly a favorite of APA, but be that as it may, it seems like to me, if they were going to manipulate my property rights and my civil rights, I should have been able to comment. I shouldn't been misled. And we were misled.

    Mr. CHABOT. Thank you.

    Mr. Hymans?

    Mr. HYMANS. I just wanted to point out—and I don't have it in front of me. I was trying to find it. But if I remember from looking at the list of folks that were consulted, I don't believe any national property rights organizations were consulted. However, national environmental groups were.

    And in Washington, we come a lot into the arena where we have hard-core idealists on one side and business on the other. And businesses are always willing to go along to get along. But unless you address the hard-core idealists on both sides, you never get a complete picture.

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    And while I notice—he can correct me—Stuart can correct me, if I'm wrong, but I do believe that several national environmental groups were directly consulted, but I'm not sure if any national property rights organizations were.

    Mr. MECK. Actually, I could respond. We did send out the—one of the questionnaires we sent out was responded to by the Pacific Legal Foundation, and they were on our newsletter mailing list. We did separate briefings for the National Association of Realtors. I went to the National Association of Homebuilders legislative policy conference myself. We met with the National Multifamily Housing Association. Mr. Claus, who is sitting next to me, receives our research highlights, which described in great detail what we were doing.

    So, we weren't keeping this under, you know, a bushel. All this material was on our Web site. And we had a newsletter mailing list of about 800 people. And every time somebody asked us for something, we sent it to them and kept logs of who we sent materials to and provided them to HUD under our cooperative agreement.

    Mr. CHABOT. Thank you.

    Mr. Alford?

    Mr. ALFORD. Mr. Chairman, there's a perception—in fact, a paranoia, in the African-American community that a lot of these decisions are done with discriminatory intent. And it probably is not the case, but when African-American entities are not included in the decision-making, if they're not at the table when the cards are dealt, you're going to have effects that exclude their best interests—and hence, the paranoia.
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    Mr. CHABOT. Thank you.

    Mr. MECK. I'd like to respond. We had four African-Americans who sat on our directorate, representing national organizations. And I can identify them by name, if you'd like me to.

    Mr. CHABOT. If you'd like to.

    Mr. MECK. Karen Jackson Sims; Haron Battle; Eugene Lowe from the U.S. Conference of Mayors; and Ben Brown, who was involved with the International Municipal Law Officers Association. So we did have minorities on our directorate who were involved very—in a very engaged way in reviewing this material. So there was no discriminatory intent. Anybody who wanted to comment or involve themselves in the review of the guidebook, we were happy to hear them. And we did hear from them.

    Mr. CHABOT. Mr. Alford?

    Mr. ALFORD. I would like to know, were there any minority organizations that were represented, not just someone who is of color? National Black Mayors Conference, were they represented? Urban League? NAACP?

    Mr. MECK. We set up the directorate under the guidelines that HUD asked us to do it. And if HUD had wanted that, we would have been happy to accommodate them. But this is 7 years later.
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    Mr. CHABOT. But the answer is no to the question.

    Mr. MECK. The answer is no, right.

    Mr. CHABOT. Okay.

    Mr. MECK. Predominantly, the organizations that we had on the directorate were organizations of elected officials. HUD felt that it was important to have elected official organizations on the directorate, because they represented the elected will of the people.

    Mr. CHABOT. Okay.

    I thank the panel very much for their testimony this afternoon. I think you've added a significant amount to this topic.

    I apologize for there not being more Members here this afternoon, but, unfortunately, we had our last vote. As you know, this hearing was actually earlier and then another Committee went longer, and that's the Committee above this Committee, so we deferred. And so that's why we're a little bit late, and that's why there aren't more Members here. I apologize for that.

    But this will all be part of the record, and hopefully most of the Members will take the time to review this testimony. So we appreciate your time.
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    Without objection, Members may submit additional materials for inclusion in the hearing record, and they may also submit questions for the witnesses within seven legislative days. So you may well be getting some written questions, and we'd ask you to respond in a reasonable amount of time to those.

    If there's no further business to come before the Committee, we are adjourned.

    [Whereupon, at 2:01 p.m., the Subcommittee was adjourned.]


Material Submitted for the Hearing Record


    The ''Growing Smart Legislative Guidebook'' is a collection of commentary and proposed state legislation that would comprehensively revise the nation's land use planning laws. It is the result of a seven year effort by the Department of Housing and Urban Development using $2 million of the taxpayers money.

    Under the contract between HUD and the American Planning Association, the Guidebook is considered official federal government work product. The contract states that HUD could have disapproved the Guidebook if its methodology or analysis were found faulty, but HUD did not so disapprove. HUD also did not exercise its right to have dissenting views attached to the Guidebook addressing disagreement with the proposed legislative solutions or to point out errors in the methodology on which any of the Guidebook's conclusions are based.
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    Many in the regulated community—including those in the landowning, agricultural, minority, small business, and manufacturing communities—have vociferously objected to the proposals contained in the Guidebook. Organizations signing letters expressing their concerns regarding the Guidebook include the National Black Chamber of Commerce, the Small Business Survival Committee, the Islamic Institute, the Chamber of Commerce, and the National Association of Manufacturers. Such organizations point out that only one representative of the regulated community—compared to 29 other representatives representing the regulating community—was allowed to serve on the ''Directorate'' that engaged in the official deliberations that resulted in the Guidebook. Consequently, they argue that their lack of representation during the seven year project is a fundamental methodological error that taints the Guidebook's proposals and conclusions, and for that reason alone HUD should have delayed its approval of the Guidebook or at least insisted on its right to include dissenting views.

    In exercising its oversight role, Congress should be especially vigilant when the executive branch contracts out to potentially interested parties the job of drafting legislative proposals. Our hearing today provides an opportunity for Members to hear the concerns of those who were not represented during deliberations on the Guidebook, but who will be severely impacted by many of its proposed provisions should they become law.

    Many of these provisions may well result in disparate racial impacts and unreasonably burden property rights. For example, a report by a researcher at the Fletcher School of Law and Diplomacy concluded that ''[b]lack households living in sprawled metropolitan areas live in larger housing units and are more likely to own a home than . . . identical black households in less sprawled areas.''
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    Further, many argue that a sound land use planning program should foster decentralized programs that center on local control—rather than centralized programs directed at the state or regional level—because localities should be allowed to use their better understanding of local conditions to provide local citizens with the best available quality of life. Yet under the legislation proposed in the Guidebook, local governments would be required to write plans that follow state goals even if local residents do not agree with those goals and plans. As a former local official—serving in both county and city government—I have serious concerns with this approach.

    Finally, the Guidebook expressly authorizes local governments to regulate the ''location, period of display, size, height, spacing, movement, and aesthetic features of signs, including the locations at which signs may and may not be placed.'' These provisions, in part, take aim at on-premise signs that identify a place of business or advertise the product and services available—allowing government, after a period of time, to force the removal of signs from a business. This raises the unsettling, and possibly unconstitutional, possibility that a small business, who frequently depend on signs for their livelihood, would have no right to tell people that they exist.

    I'd like to close by welcoming all our witnesses here today, in particular Robert Manley from Cincinnati. I know from personal experience and from reading Bob's testimony that we both agree on the need to promote development that offers consumer choice, gives families an opportunity to buy their first home at an affordable price, and is consistent with a local communities vision and values.

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    Bob, it's good to have you here today and as we have the opportunity to hear from some of those who are concerned about the Guidebook's recommendations we'll also be interested to learn more about the Guidebook's drafting process and APA's views.



    Mr. Chairman, with all due respect I must ask you, why are we here today? When Jack Kemp was Secretary of HUD under the first President Bush, he ordered this study to survey state and local legislative initiatives to update models of land use and planning. Almost $2 million dollars later, the American Planning Association provided HUD with what it asked for—a document that could serve as a resource for communities around the country that are facing challenges of unparalleled, unplanned suburban growth and sprawl, and the descimation of urban centers. This guidebook is exactly that—a guide and survey of what has worked. It is not a law or regulation that communities must follow to the letter. It does not have the force or even the implication of law, and I trust that communities will use it to fashion planning laws that work for them.

    The report itself indicates that a multitude of organizations and individuals were consulted and involved over this seven year process. Today you have brought some individuals who are not happy with the report. I guarantee there's not a single report anywhere that someone won't disagree with. But we don't hold a hearing every time someone is unhappy with a report commissioned for a government agency.
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    I am particularly concerned about the way this issue is being couched as one that will harm the African American community. Assuming that the arguments we will hear from the National Black Chamber of Commerce are true, I see no distinction between the effects of commercial sign regulations on African American businesses and other small and community based businesses. Access to financing is serious problem, however, and it is exacerbated for black businesses by the decline of urban communities caused by sprawl from the city.

    African American communities are suffering from the lack of updated urban and suburban planning models. In my home town of Detroit, extensive suburban expansion has provided another vehicle for white flight from the city, but fewer blacks have been able to move to big homes with big yards in the suburbs. Fannie Mae ranked Detroit as the third worst city in the nation for promoting sprawl. Detroit's African American community has become more and more isolated in the urban center without the benefits of housing improvements and options, commercial centers and expanded work opportunities that exist in the suburbs. Furthermore, environmental problems (along with social ones), devalued property and declining tax bases plague black urban communities without much improvement. From brownfields to decayed housing and infrastructure, struggling African Americans are losing out in our cities as money and political attention follow the more affluent people to the suburbs, draining resources from city needs.

    I am curious to hear why your guests today think the suggestions in this Guidebook are so damaging to black businesses. I am sure that African American businesses share my deep concerns for the fate of urban communities, which are often the base of their business market.

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(Footnote 1 return)
44 Liquormart, Justice John Paul Stevens; pp 1507–1508.