Agenda - Planning Commission - 08/06/1996

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resorted to two-, three-, four-, and five-acre zoning. Aa a result, more landgets bulldozed and more road must be built for each house, people have more yard than they know what to do with, and land and house prices go through the roof. Large-lot zoning has done little or nothing to preserve the land because it has occurred in the conventional zoning context: uniform development of the entire landscape. Zoning became the preeminent land-use technique in the 1920s through the efforts of Commerce Secretary Herbert Hoover; it is probably his most lasting legacy. Designed originally ro standardize development in cities, it has had its greatest i?npact in the development of suburbs and exurban sprawl, resulting in the familiar pattern of extensive, uniform residential subdivisions, and shopping strips. Another hallmark of zoning, strict separation of different uses, may have had some historical relevance to cities and suburbs, where it is important to avoid putting tanneries next to apartment houses. In the rural context, however, it is a stifling restraint on people's traditional freedom to do what they want on their land. Whatis important in rural areas is not the use category but the scale and the impact of the use on the surrounding area. Almost any activity that can fit into a garage or barn can be carried on in a way that has little impact on the neighbors, especially.if the nearest neighbor is a quarter of a mile away. And it is far better to have these small businesses and industries scattered around the countryside than concentrated in the expensive and ugly commercial strips and office/industrial parks that have degraded formerly scenic roads. It is slowly dawning on transplanted urbanites and suburban- ites tho/the initial resistance felt by long-time rural residents toward conventional zoning may be well-founded. Zoning is a "big-city" concept that must be turned upside down if it is to serve rural areas. A quiet revolution in zoning is beginning to occur, thanks largely to some original thinking by creative local residen[s who resist the conventional wisdom propounded by their engineering, legal, and planning consultants. Aa c~)nventionally practiced, zoning is inappropriate to the needs of rural and semirural communities. Their master plans, advisory documents that do not have the force of law in most states, usually contradict the zoning blueprint. They typically call for focusing limited growth in existing population centers, keeping commercial growth downtown, and maintaining the rural undeveloped character of the countryside. The zoning laws, which are binding on developers and planning boards, mandate the wholesale conversion of the countryside to residential subdivisions and prescribe strip commercial development along major roadways, outside downtowns. The contradiction between the master plan and zoning law seems to go almost entirely unnoticed. Maybe this is because people don't read the master plan (usually written in planning jargon) or the zoning ordinance (usually written in indecipherable legalese), or because people view a master plan the way they view ideal human virtue: much to be desired but basically unattainable. Another explanation is that town boards fear litigation from developers if they explicitly limit large-scale development in the countryside, as many-master plans recommend. .Joel Russell, planner and attorney, h principal of Woodlea Aasociates, a planning and zoning consultingfirm in Salt Point, New York, that specializes in drafting land-use regulations that protect commteniO, character and allow compatible g~vwth. Master plans articulate the community's goals. Zoning laws apply these goals to the sometimes conflicting claims of private property rights. This explains why master plans say agricultural land should be preserved while zoning laws prescribe cookie- cutter development. Elected officials do not want to confiscate a farmer's retirement fund but sometimes are unaware that land value can be'maintained without prescribing wholesale development of the countryside. As a result, the farmer sells to a developer, and the scene described at the beginning of this article ensues. Are there other ways to regulate and use land so that the countryside's rural, agricultural, and natural character can be maintained without confiscatory regulation? is costly public land acquisition the only alternative? The Takings Challenge In a 1989 law review article, "Law and a New Land Ethic" (74 Minnesota Law Review 339), John Humbach traces the evolution in our nation's values from frontier days to the emerging consensus that we are stewards and caretakers of an ecologically fragile planet. He shows how earlier legal doctrines evolved to encourage private exploitation of nature by sanctifying property rights and how they have been modified in recent years to foster protection of the environment. The emergence of the property rights movement shows that frontier values persist, resulting in a cultural war between defend- ers of property rights and those who embrace the new land ethic. Many battles have been fought over the takings issue. Until recently, it was difficult to prove a taking without showing either that a land-use regulation does not serve a valid public purpose (preservation of farmland or environmental resources are consid- ered valid public purposes in most s~ates) or that it deprives the owner of any economically viable use of the property. Recent U.S. Supreme Court decisions have muddied the waters somewhat with regard to takings but do nor significantly affect well-designed land-use regulations that protect the rural countryside. However, it is important to note that proposed state takings compensation legislation would be a serious setback for any attempt to write the new land ethic into law. In general, ifa rural landowner can derive a reasonable return from farming a large parcel or from selling it for a single homesite, a zoning law precluding more intensive development will be constitutional. And even if'such a law is found to deprive the owner of any economically viable use of the property, the