Journals
Summer 2003, Vol. 43, No. 3
The UNM School of Law and the Natural Resources Journal Present
HOW BIG DO WE WANT TO GET? A Symposium on GROWTH MANAGEMENT: IMPACTS AND OPTIONS
Essay – Smart Growth in Western Metro
Robert H. Freilich
Defensible Moratoria: The Law Before and After the Tahoe-Sierra Decision
Matthew G. St. Amand & Dwight H. Merriam
Governments at all levels have used land use permitting and development moratoria as effective planning tools for decades. The U.S. Supreme Court’s Tahoe-Sierra decision last year, upholding a 32-month moratorium on all development around portions of Lake Tahoe, has heightened interest in moratoria. The Tahoe-Sierra decision elicited comments from all sides, most seeming to believe that the law had changed. Although defensibility remains an issue, a definitive review of the cases before Tahoe-Sierra; an analysis of the Tahoe-Sierra decision itself; and a look at the cases decided since reveals that there has been little change in the law. The objective of this article is to illustrate how the law has evolved and to serve as a research tool for landowners, governmental officials, advocacy groups, and the courts.
Creating Effective Land Use Regulations through Concurrency
S. Mark White & Elisa L. Paster
As communities struggle with mushrooming municipal growth, they are using a variety of tools to manage where, when, and how such growth will occur. One of these tools is concurrency regulations or adequate public facility ordinances (APFOs). An APFO is a land use regulation that is designed to ensure that necessary public facilities and services to support new development are available and adequate, based on adopted level of service standards, at the time that the impacts of new development occur. APFOs are designed to manage the timing, not the location or quality, of new development. Actual concurrency regulations will be different in each community depending on local planning needs and local law. One thing is clear, however; concurrency regulations are more advantageous than other traditional land use controls because they are more flexible and deal directly with population levels and employment growth, thereby controlling roadway demand. While they will not stop growth, down zone property, deter economic development, or raise housing prices; nor are they a catchall solution to growth management. They are one tool in the planning toolbox to help a community meet their expectation of growth and visions for the future.
Rural Development Considerations for Growth Management
Anita P. Miller
Growth and development is occurring in New Mexico’s rural areas, threatening an agricultural lifestyle and economy that many communities would like to maintain. Planning is merely advisory in New Mexico, but rural communities should develop coordinated comprehensive and regional planning processes as the basis for implementation of land use regulatory strategies that will protect the rural agricultural values these communities revere.
Water Supply and Urban Growth in New Mexico: Same Old, Same Old or a New Era?
Lora Lucero & A. Dan Tarlock
New Mexico and other arid western states face the following dilemma: rapid urban growth and the increasing demand for the dedication of water to aquatic ecosystem services are placing new stresses on the ability of available water supplies to support these new demands at a time when a coherent federal supply and water policy no longer exists and states have been slow to fill the vacuum. The answer to the increasing demand for water is no longer simply to augment supply through new diversions, high-capacity wells, or the construction of large storage reservoirs. Instead, in today’s increasingly unmediated, competitive water allocation environment, states and local governments are being forced to reexamine the traditional relationship between water policy and urban growth: if they come, we will supply them, and, more generally, water should never limit growth. Thus, urban areas are being forced to use alternative strategies such as demand management (conservation) and controversial rural-urban transfers to accommodate continuing urban growth and the state is aggressively limiting new groundwater access. New Mexico is an important case study of the stresses of reallocating water to meet continuing urban growth. The state has mined its ground water both for urban growth and irrigation, and it does not have a large, under-allocated federal project to support future growth or a major new source of water that can be tapped. The highly stressed Rio Grande, a major interstate and international river, must be shared with other states and Mexico. Furthermore, New Mexico has a unique rural landscape with strong Native American and Hispanic communities fighting to maintain a non-urban way of life. The article argues that water policies and urban growth policies must be better coordinated to promote more sustainable water use and "smarter" urban growth. Planning is the link. As the margin of error for unsustainable resource use decreases, integrated land and water use planning takes on a more critical role in connecting policies with decision making. Water and urban growth policies must support each other rather than continue to separate enterprises that are often at cross purposes with each other.
Market Based Approaches to Environmental Preservation: To Environmental Mitigation Fees and Beyond
James C. Nicholas & Julian Conrad Juergensmeyer
Impact fees are widely accepted and utilized across the United States as a technique to generate revenue for capital infrastructure improvements necessitated by new development. This article looks at the origination of impact fees, their legal framework, the extension of the concept towards environmental protection, and an alternative economic approach in environmental protection, "market based regulation." Based upon techniques utilized primarily in the arenas of wetlands and air quality regulation, a concept of utilizing economic incentives for broader environmental protection is explored. Considerations of the legal framework evolved through impacts fees are then applied to possible implementation aspects of the concept.
Public Participation Is on the Rise: A Review of the Changes in the Notice and Hearing Requirements for the Adoption and Amendment of General Plans and Rezonings Nationwide and in Recent Arizona Land Use Legislation
Douglas A. Jorden & Michele A. Hentrich
The public’s role in planning and zoning decisions traditionally has been limited to participation in a public hearing held a week or two after receiving notice of the proposed action. Although the receipt of notice and a public hearing meet due process requirements, they do not address the need for more public participation at the critical early stages of the proposed regulation. By the time the public has an opportunity to express concerns about the proposed plan amendment or rezoning, it is already in the final stages of consideration. Beginning with the adoption of the Oregon Planning Act of 1973, states have been changing their planning and zoning statutes to include requirements that municipalities adopt procedures to encourage early and continuous public participation. The American Planning Association’s Growing Smart Legislative Guidebook continues this trend by emphasizing the need for public participation. This article is intended to give a broad overview of the state trend toward increasing public awareness and participation in planning and zoning processes and will examine in more detail recent changes in Arizona’s planning and zoning statutes.
Implementing the Vision: Impact Fees and the Albuquerque Metropolitan Planned Growth Strategy
Louis J. Colombo
The Planned Growth Strategy (PGS) for the Albuquerque metropolitan area represents a signal change in the direction of local government from its past practice of being reactive or accommodating to the initiatives of private developers to having a "different, more intentional approach to growth that…follows carefully considered principles," in the words of Town Hall participants. The Planned Growth Strategy was completed in 2001, culminating nearly four years of effort by a team of consultants including Parsons Brinckerhoff, Camp Dresser & Mckee, Ch2M-Hill, Freilich Leitner & Carlisle, Friedmann Resources, Growth Management Analysts, Lora Lucero, Esq., Michael McKee, Ph.D., Sites Southwest, and Wilson & Co. The full text of the report is available on www.cabq.gov/council. The report was incorporated into three pieces of legislation: Bill Nos. F/S R-02-111, F/S O-02-39, and R-02-112. The first two of these bills have been adopted by the City of Albuquerque. The PGS proposed an interrelated system of implementation tools principally including a land use plan, a capital improvement program, development impact fees, financial and regulatory incentives, cumulative impacts, concurrency, governmental service delivery policies, and mixed-use zoning categories. The PGS is noteworthy nationally because of the extent of its reliance on market-driven and financial implementation tools. The article focuses on the PGS approach to development impact fees as a key element of the implementation strategy. The discussion is in the context of the New Mexico Development Fees Act.
