‘Smart growth’ goals frustrated by local authorities

Introduction

In a pasture, along a tree-lined road, a small herd of hefty black-and-white striped “Oreo cows” — more formally known as Belted Galloways — graze near the entrance to a housing development widely regarded as one of the few examples of “smart growth” on Maryland’s Eastern Shore.

The Village of Cooke’s Hope is a neighborhood of upscale, single-family homes set on small, manicured lots in the town of Easton. Planners praise it for combining land preservation with housing innovation.

“Everybody loves Cooke’s Hope,” said Ed McMahon, a senior fellow at the Urban Land Institute. “You are driving down the road and you see a bunch of designer cows. That’s because there is a conservation easement on the property out in front. Then you drive in and there is a little village. The houses… have a color palette, vernacular architecture, and they are not all the same builder houses.”

McMahon said that while growth and development are inevitable, it is important to control where they go and what they look like.

“Beyond a handful of projects, there is not a whole lot that you can go and look at on the Eastern Shore that is not your typical crapola suburban development,” he said.

It’s an especially sobering assessment in light of recent history here. After more than a decade of well-intentioned efforts to serve as a national model of carefully managed development, Maryland finds its so-called Smart Growth programs frustrated by local governments whose parochial interests often trump the broader visions of regional and statewide planning efforts.

Partly as a result, the pastoral Eastern Shore is at risk of losing tens of thousands of acres of farms and forests over the next two decades if current growth patterns are not changed, according to a state Department of Planning report issued last year.

“In determining how the region will grow, the Eastern Shore is currently at a crossroads,” the report stated, “between a future that can hold much promise for its residents, environment, and economy or one that may lead to a permanent degradation of a place and a way of life that residents now treasure.”

Feuding authorities

But the Eastern Shore is not the only front in this war. One case in western Maryland that has drawn statewide attention is a plan to build 4,300 housing units on 935 acres next to a state forest in Allegany County. Called Terrapin Run, the development received zoning approval from the county board of zoning appeals in 2005.

The state and conservation groups fought the county zoning board in court, claiming the local officials had not followed the guidelines for growth spelled out in their Comprehensive Plan. Last year, the state’s highest court, in a 4-3 decision, upheld the county’s zoning action, ruling that local officials have the authority to grant exceptions to a local Comprehensive Plan.

A bill, backed by Governor Martin O’Malley that requires local government to follow their plans, was approved by a 46-0 vote in the Senate and 120-12 in the House of Delegates and was signed into law this spring.

Robert S. Paye, attorney for PDC Inc., the Terrapin Run developer, said he does not know if the measure will change the future of the development. Construction has not begun.

“There is still further permitting that is required,” Paye said. “I don’t know what the impact of the legislation will be on those permits. It has been a long road, and of course, the economy has changed dramatically in the last year and a half.”

The economic crisis has put the brakes on many blueprints in Maryland. But twelve years after then-Governor Parris Glendening pushed smart growth legislation through the General Assembly, the state is still struggling with ways to control growth.

Glendening’s legislative package was hailed nationally as a systematic way to reverse sprawling development that was rapidly encroaching on Maryland’s countryside. The five bills in the package called for concentrating growth in and around existing municipalities, preserving farmland and forests to maintain the state’s rural heritage, cleaning up brown fields and offering tax credits for job creation. A “right to farm” bill, which would have protected farmers from certain suits by neighbors, did not pass.

While the laws have had some success in creating in-town neighborhoods and revitalizing downtown commercial areas, they have not stopped the steady loss of open land because they gave the state neither enforcement power nor the ability to track compliance, according to a report released in December by the state’s Task Force on Future Growth and Development.

Control of land use is jealously held and zealously guarded by the 23 counties and 157 municipalities across the state, 120 of which have their own planning and zoning offices. The local governments have successfully resisted attempts by the state to centralize that authority.

O’Malley’s legislative agenda

O’Malley, who has been a champion of controlled, sustainable growth, promoted a legislative package this year that he said would strengthen smart growth laws, but even that was criticized by environmentalists for not giving the state any stronger authority to control growth.

O’Malley’s bills, including the Terrapin Run law, were based on recommendations from the December report by the state’s Task Force, which was formed by state law in 2006 to study land-use issues through December 2010. The Task Force warned that if the state’s policymakers do not change current laws, 650,000 acres of countryside, about the size of Cecil, Kent, and Queen Anne’s counties combined, could be chewed up by development in the next two decades. If significant changes are made, that loss could be reduced to 150,000 acres.

The 21-member task force has been meeting regularly around the state to get input on land use. “As Maryland heads deeper into the 21st Century, those with the power to choose have an important choice to make between these two outcomes, with an essential question in mind: Which Maryland do we want?” the Task Force report explained.

One of the governor’s bills, known as the “Indicators Bill,” which ultimately passed and was signed into law, requires local governments to make annual reports to the state on what and where new construction is occurring. An amendment that would have given the state enforcement authority — by tying state infrastructure funding to compliance — was opposed by local governments and died in the Senate.

Maryland Governor Martin O’Malley initiated and signed a set of new laws this year intended to enhance the state’s smart-growth efforts.Three other bills backed by O’Malley passed. The Terrapin Run Bill requires municipalities to follow their Comprehensive Plans when making planning decisions. Counties and municipalities prepare their own Comprehensive Plans that outline what they want their future to look like based on an outline spelled out by the state. “The Terrapin Run Bill was a very important bill to redefine consistency and how local rules and regulations need to follow the Comprehensive Plan,” said Alan Girard of the Chesapeake Bay Foundation. “I think that was an important fix.” Another bill expands the state’s “visions” for smart growth from eight to 12 key issues. The new law calls for communities to be designed as “compact, mixed-use and walkable.” It also stresses that policies for growth and development be looked at “across the local, regional, state, and interstate levels.” The third bill sets up tax funding for development around transit stations. O’Malley signed the legislation May 7.

But not everyone is impressed. “None of those things are huge, and that is a disappointment because the challenges are so big,” said Dru Schmidt-Perkins, executive director of 1000 Friends of Maryland, an environmental group that lobbies for stronger growth controls.

A March report by Environment Maryland, an environmental advocacy organization, concluded that since the 1997 laws were passed, residential and commercial development has continued at almost the same pace as before. In ten years, 175,000 acres had been developed, and, the report stated, “The vast majority of new acres of residential land (77 percent) were developed outside approved PFAs [primary funding areas].” To contain future sprawl and improve the quality of life, Maryland “must put teeth into its planning, zoning and smart growth laws,” said the Environment Maryland report, entitled “Not So Smart: Land Consumption in Maryland after a Decade of ‘Smart Growth.’”

Jon M. Laria, chairman of the state Task Force, said he did not think the legislation that passed this session would accomplish the needed changes, but he’s philosophical about the challenges. “It is probably unrealistic,” he says, “to think you could go from a lack of focus on the issue, to a Task Force report, to sea-changing legislation in a very short period of time.”

O’Malley’s spokesman, Rick Abbruzzese, said the legislation is just one step in the administration’s “green” agenda. “We will continue to talk to the parties and we will come back next near. The debate is ongoing,” he said. “The good news is that, for the first time in a long time, we are looking at these comprehensive plans with all parties gathered around the same table.”

Majority of public favors limited growth

Maryland is the 42nd smallest state in the United States by land mass, but is the fifth most densely populated. The Task Force projects that the population of the state will increase 20 percent — from 5.3 million in 2000 to 6.4 million — by 2030.

Task force chairman Laria said the state has to figure out how to accommodate the new residents in a way that minimizes the destruction of farmland and damage to the agricultural economy.

A 2008 poll sponsored by the Eastern Shore Land Conservancy reported that on the Eastern Shore, sprawl and development is a top concern of residents, with a two-to-one majority of respondents saying growth should be directed to existing municipalities and discouraged in the countryside.

In a 2007 speech marking the 10th anniversary of the Smart Growth legislation, Glendening said, “We need to strengthen the program and strengthen enforceability. We must transform the state’s relationship with local governments — if counties cannot do the job, the state must step in.”

But choosing between creating controls and doing nothing, as the Task Force frames the issue, is no easy chore, given the push and pull of land use politics.

Ronald D. Utt, a senior fellow at the Heritage Foundation, a conservative think tank, said he believes more control and stricter rules are actually a cause of sprawl, because they actually raise the price of land and increase the cost of houses.

“All the people that are starting families and leaving their parents’ houses are going to have to go someplace, so they often tend to leapfrog out to places that have few restrictions,” he said.

Utt said new housing developments in West Virginia and southern Pennsylvania are being built to serve the Washington-Baltimore corridor “because everything between Washington and West Virginia has been put off limits in one way or the other.”

John W. Frece, director of the Environmental Protection Agency’s Smart Growth Office in Washington, D.C., documented the decades-long struggle for power over land-use policy in the state in his book, Sprawl and Politics: The Inside Story of Smart Growth in Maryland.

Frece, who spent seven years in the Glendening administration working on smart growth issues, points out that the real muscle that governs growth, development and land use in Maryland resides in the county and municipal zoning boards. While the U.S. Constitution puts that power in the hands of the states, in most cases the states have delegated the minutiae of zoning to local governments.

In Maryland, the state can advise, but as Glendening noted in his 2007 speech, “Unfortunately, if a proposed project was not using state funding, local authorities could approve a project that was inconsistent with our state goals.”

Politically, that hot-button issue draws a sharp reaction from local governments every time it comes up. They argue that the local officials report directly to their local constituents and are best suited to handle issues unique to their jurisdictions.

Leslie Knapp Jr., associate director of the Maryland Association of Counties, said his organization had originally opposed some of O’Malley’s legislation because he said the measures imposed unfunded mandates — such as reporting and record-keeping — on the municipalities. The group also opposed the amendment to the Indicators Bill because it would have required 80 percent of all new growth to be in designated “Primary Funding Areas” to receive state financial support.

“The counties are very differently situated and a one-size-fits all approach does not really work,” he said. “It may work in urban areas but not in rural counties.”

State Senator Richard Colburn, a Republican who represents Talbot, Dorchester, Caroline, and Wicomico counties, puts the debate in even starker terms.

“We don’t need another czar from Annapolis telling us how to use our land here on the Eastern Shore,” Colburn said.

Candace L. Donoho, director of government relations for the Maryland Municipal League, which lobbies for the state’s cities and towns, said MML supported the original Smart Growth legislation because it channeled growth to their areas. But as a general proposition, she said, the league believes local land use decisions are best made locally.

“That’s where the citizens have the most input, and that is where the local officials are most able to react,” she said.

No governor has attempted a frontal assault on the counties’ land-use control since 1991, when a proposed bill, supported by then-Governor William Donald Schaefer, called for local governments to share zoning control with the state. A coalition of county and municipal leaders, backed by developers, bankers and farmers fought it from the start and the measure died in committee.

But there’s another view reflected by Russell Brinsfield, a University of Maryland professor and co-founder of the Eastern Shore Land Conservancy, who supports stronger measures to enforce state or regional land policy. Brinsfield, who is also mayor of Vienna, in Dorchester County, said the visions of previous smart growth laws have not been achieved because there is very little accountability.

“I don’t trust local governments, either on the municipality or county level, to think about the impact of their decisions,” he said. “Not only on future generations in the county itself, but how those decisions fit or don’t fit into broader regional concepts.”

Frece, who was associate director of the National Center for Smart Growth Education and Research at the University of Maryland after leaving the state government, said there should be more flexible ways to handle issues.

“I don’t believe authority should be stripped away [from local governments],” he said, “But growth and development need to be managed on different scales. Some issues need to be managed on a neighborhood level, or a watershed level, or a state and even federal.”

Future of super-sized developments in question

Lurking behind the smart growth-sprawl debate is a more practical question: What will the development world look like when the recession ends?

Mike Sherling, a policy advocate for Environment Maryland, said he believes state-level controls are still needed because developers are still gobbling up land to build low-density housing far from urban centers once the economy improves.

But there is an alternative — and growing — view that the era of sprawl and mega-homes may be drawing to a close. Russell Versaci, a nationally known architect and author, who spent most of his 30-year career designing big homes with big price tags, predicts the recession will change the market in ways legislation has not.

“The entire terms of the game have changed,” Versaci said. “In no way are we going back to business as usual after this meltdown starts to pass. I call it the end of the ‘McMansion’ era.”

He said the traditional method for sprawl building, in which development companies acquire large tracts, work them through the permitting and infrastructure process and build an inventory of houses for sale, is going to have a hard time finding financing after the recession.

“That whole paradigm that sprawl building was based on is over — it has gone away,” he said.

Frece agrees that “the pendulum is really swinging. We are becoming an older country. Older people are not going to be able to drive as far. Houses will be designed differently. It is all a movement back to the old system of mixed use, with people in all stages of life living closer together. That by its very definition is smart growth.”

Smart growth ideas are also finding their way into state and local government policies for economic and aesthetic, if not legal, reasons.

Frece said one of the more satisfying things he has seen from the advocacy of smart growth is its impact on planning decisions. “I am beginning to see that the dialogue has changed, and that is no small thing. You can’t quantify it, but people were not talking about [smart growth] in 1990 and now it is being discussed on the local, state, and federal levels.”

In Chestertown, Maryland, for instance, a developer has been told to redesign a project, eliminating proposed cul-de-sacs, to match the colonial village’s street grid. “We want to keep it walkable,” said Chestertown Mayor Margo Bailey.

John Ford, president of the Easton Town Council, said his town is concentrating on projects within the town’s boundaries, not on annexing new areas for development. He said Easton Village, a new neighborhood of single-family homes, is being built to mirror the more densely populated sections of town.

In Berlin, Planning Director Chuck Ward said the town is working on a new Comprehensive Plan that would shape the growth of the Worcester County village near Ocean City.

Indeed, it may be an opportune time to do this sort of planning, “What better time to plan than in a recession?” asked William Klein, director of research for the American Planning Association. “When things are quiet, you can actually think about the issues.”

McMahon of the Urban Land Institute said he sees many things happening around the state that smart growth has not gotten credit for, such as the restoration of downtown Silver Spring, where residents of area neighborhoods can walk to shops, restaurants and public transportation. The redevelopment was part of a joint public-private venture between Montgomery County and developers.

Back at Cooke’s Hope in Easton, developer Richard Firth said the countryside feel of the complex is no mistake. He said he came up with the idea of having the cattle farm as a buffer and as a marketing tool. He said the farm is owned by the development company and managed by a caretaker.

“My concept was to create a typical Eastern Shore community,” Firth said.

“I think we have accomplished that. You have the feel of the farm community. That is what people come to the Eastern Shore for.”