Envisioning a Role for RIGOs in Cross-Boundary Land Use Regulation

blogamerican regionalismstate of the field

Oct 3

Thomas Skuzinski (Northern Illinois University) and Carolina Velandia Hernandez (Northern Illinois University)

The acknowledged value of regional planning is evident in the proliferation of state and federal policies that require coordination between local authorities. However, as Thomas Skuzinski (Northern Illinois University)and Carolina Velandia Hernandez (Northern Illinois University) note, even while regional planning efforts exist the plans themselves lack teeth and land use regulation remains a predominantly local activity. This phenomenon is at the heart of one of the most common critiques of American regionalism: regional entities, such as RIGOs, may exist but they typically have few statutory powers. If their responsibilities and ambitions do not align with their authority, then how effective can they be? This piece lays out the problem and promise of regional land use planning and highlights the challenges that regional entities face in executing collaboratively established visions. It also explores how RIGOs are able to work within these constraints to influence outcomes in regional land use. In so doing, Skuzinski and Hernandez set out a blueprint for how the role of RIGOs, and other regional entities, might be intensified in this policy area. Their note contributes to a broader conversation about how RIGOs can influence outcomes in other policy domains where they are idea-rich but authority-poor.

Introduction

More than six decades ago, the eminent land use attorney and scholar Charles Haar observed that “the regional plan is again largely a didactic exercise. While the usefulness denoted by its very existence should not be minimized, it must be recognized that the effect of such regional plans in directing the application of human energies in land development is indeed small” (1957, 523).Anyone engaged in understanding and solving regional problems—the myriad problems that span beyond the scope of authority and likely functional capacity of a single local government—will recognize that these words continue to ring true today. Regional planning is widespread, pervasive, and frequent, especially in metropolitan settings. But land use regulation is “arguably the sole legal domain in which local governments are preeminent” (Camacho and Marantz 2019, 141) and has even been described as a cornerstone of American localism (Cashin 1999; Briffault 1990). The highest hanging fruit, therefore, for any regional policy agenda is a unified development ordinance that covers zoning, subdivision, and supportive capital projects and that is commensurate with the scale of regional problems. A healthy alternative would be any cross-boundary land use regulation—any attempt at shared land use regulatory power among two or more units of local government.

These efforts do exist, and they are the focus of this article. They appear only rarely and seemingly unpredictably in the vast terrain of nearly 40,000 local governments in the United States, and their effectiveness and endurance remain unknown. But their presence suggests tantalizing possibilities, and state governments generally allow and even encourage such efforts. Regional entities, such as regional intergovernmental organizations (RIGOs), metropolitan planning organizations (MPOs), councils of government (COGs), and others comprised of local government representatives (Miller and Nelles 2018) also support cross-boundary land use regulation through their extensive work in producing regional plans.

This article works from the following premises: cross-boundary land use regulation is essential, it is possible and feasible in more places than it currently exists, and RIGOs (or other regional entities) could advance it through soft policy interventions that align with their current work. We admit before proceeding that the latter premise is built atop somewhat shaky ground. No comprehensive national or multi-state study of cross-boundary land use regulation exists, and some regional entities are surely already working to advance these efforts. However, it is work that has been largely invisible in academic research and in the agendas of national professional associations, and it warrants more attention.

We target three goals in this short article. The first is to review the differences between land use planning, regulation, and implementation to highlight why the latter two activities are essential to regional progress. The second is to give the reader a general sense of the cross-boundary land use regulations that would support such implementation. This is done by describing a few examples from around the United States. The selection is not meant as a representative sample, but it is adequate for illustration. The third is to offer the brief outlines of a framework that can help us think about how RIGOsor other regional entities might support—not necessarily supplant, but support—efforts at cross-boundary land use regulation. The framework will, we hope, serve as a call for more primary data collection about cross-boundary land use regulation and the role of regional entities in supporting it.

Planning Versus Regulation and Implementation

Regional intergovernmental organizations (RIGOs) are well known players in regional land use planning, with many such organizations required by federal and state statutes to fill this role. For example, one function of many RIGOs is to be a metropolitan planning organization (MPO) responsible for transportation planning in urbanized areas (49 U.S.C. 5303-5305, 23 U.S.C. 134-135). Completing this transportation planning requires at least an awareness of land use planning to estimate travel demand and gauge the supply of land and supportive infrastructure for transportation land use plans, and most MPOs produce land use planning documents or integrate land use plans and scenario planning into their transportation plans (USDOT 2012; GAO 2009; Wolf and Fenwick 2003). Many other regional public sector organizations were motivated by a series of federal mandates in the 1960s promoting regional planning and coordination in transportation, community development, environmental quality, and other policy domains. Like MPOs, they too often attempt regional land use planning or try to influence land use planning by local governments. Economic development districts (EDDs) are multi-county entities (often a component of rural RIGOs’ policy domains) designated by the Economic Development Administration, and are meant to encourage regional economic development (13 CFR §§ 301.3(a)-304). Like MPOs, they regularly engage in regional land use planning activities supportive of their Comprehensive Economic Development Strategies (Reese and Fasenfest 2003).

But plans are not laws, despite their sophistication and comprehensiveness. A land use plan, to move from a vision to reality, requires at least zoning and subdivision regulations that accord with it. This accordance is central to the justification of land use regulation as constitutional, since due process demands that such regulation be at least a rational pursuit of a legitimate public interest. However, this is a loose requirement at best. Many states allow existing land uses and the pattern of decisions about zoning relief—through zoning amendments, special use permitting, variances, and the like—to serve as evidence of a planning scheme, and courts are quite deferential in interpreting the required closeness between regulations and a plan (Nolon 2005). While the regulations might accord with the comprehensive plan, implementation through ad hoc activities by zoning administrators, commissions, boards of zoning appeal, and local councils can still frustrate the vision of a regional plan. A successful challenge to a regulation of land use because of its failure to accord with a comprehensive plan is exceedingly rare. Not surprisingly, even when considering a single general-purpose local government, the conformance between land use outcomes and plans is highly imperfect (Loh 2011). State land use policy ambitions, such as open space preservation, can also be stymied by the reality of land use regulation even if they find their way into comprehensive plans (Loh 2015).

RIGOs and other regional entities lack that authority. A push by the Chicago Metropolitan Agency for Planning (CMAP) to promote smart growth, for example, has not “translated into a set of supporting regulations by local governments within the state” (Talen and Knaap 2003, 348). They cannot regulate the use or subdivision of land, and even planning processes can fail even to translate into those policy areas where they do have implementation authority (Bartholomew 2007, 408).

Robust state support for regional planning without a shift in regulatory authority makes no difference. California MPOs, which had increased responsibilities for crafting a regional land use vision to reduce automobile dependence under the state’s Senate Bill 375, continued to contend with local government land use regulation (Sciara and Strand 2017) and the resulting “mismatch between authority and responsibility” (Barbour and Deakin 2012, 83). Nolon (2012, 1018) helpfully summarizes the limits of regional planning amidst local authority: “[e]conomic development activities in one community cannot reverse negative trends in the larger economic market area. … One community cannot create enough supply to meet the regional demand for affordable housing. Efforts in one community to protect natural resource areas that are shared with adjacent municipalities cannot succeed without compatible efforts.”

Thus, plans are not unimportant, but they require the backing of regulatory authority. In the next two sections, we target this mismatch by reviewing three forms of cross-boundary land use regulation and then discussing how RIGOs could encourage such policy behaviors.

Examples of Cross-Boundary Land Use Regulation

At the heart of cross-boundary land use regulation, as we define it, is the development and ongoing application of a law that applies to land in two or more general-purpose local governments that continue to exist separately and do not merge or consolidate. Before proceeding we note that we do not consider conditional land transfers (Zeemering 2008), annexations (Tyson 2012; Edwards 2008), or the exercise of extraterritorial jurisdiction (Romero 2018; Schwartzmiller 2006) to be cross-boundary. While these can require some kind of interaction between one local government and another, they typically do not demand ongoing collaboration: an agreement occurs at the outset to coordinate tax sharing and service provision, but no additional decision-making interaction is necessary. Exceptions exist. For example, in the Middleton Extraterritorial Zoning Area of Westport, Wisconsin, the Towns of Middleton and Westport have a joint zoning committee with three members from each local government.1 We also exclude the requirements of regulatory consistency with regional plans common in growth management states (Ben-Zadok 2005; Carruthers 2002), because these involve regional land use outcomes being motivated by the state rather than local governments.

Cross-boundary land use regulation can happen through three modes: regulation by joint agreement, regulation by formation of a special purpose government, and regulation through the transfer of development rights across boundaries. Examples of the former can be found in many states, especially in those where the township or borough form of government creates high fragmentation of land use authority. In Pennsylvania, the Eastern Schuylkill Planning Region includes Rush, Schuylkill, and Walker Townships, and the Borough of Tamaqua, and has a joint Subdivision and Land Development Ordinance.2 In Michigan, the Fremont Community—which includes the City of Fremont and Dayton and Sheridan Townships—has had a Joint Zoning Ordinance and Joint Zoning Board of Appeal since 2013 (Skuzinski 2017). While the joining together of rural communities is common (often an assortment of county subdivisions with an incorporated anchor), in northwest Indiana, a joint development plan adopted in 2008 among LaPorte County (which has a population of about 100,000), LaPorte City, and Michigan City led in 2016 to the adoption of a joint zoning ordinance and subdivision regulation.3 These joint agreements have no discernible hurdles to adoption beyond the reticence of local governments to part with land use autonomy, and exit from them only has adverse consequences if this is agreed at the outset. Every state explicitly or implicitly allows for local governments to do jointly a wide range of activities that they could do separately, and that typically includes joint land use regulations and implementing bodies (Skuzinski 2018; David 2008; Nolon 1999).

The remaining options—regulation by formation of a special purpose government and transfer of development rights—are more exceptional. Ohio allows for the formation of Joint Economic Development Districts, which are taxing authorities formed by agreement among two or more local governments that may determine their own land use regulations and building codes within the boundaries of the district. (Ohio Revised Code 715.70-71; CUPA 2006). Formation is by joint agreement, and one of the restrictions is that the underlying property be zoned for commercial use or mixed use. The practice of marrying land use regulatory power to a special taxing authority appears unique to Ohio.

Transfer of development rights across jurisdictional boundaries is another mechanism of cross-boundary land use regulation. A full treatment of transfer of development rights (TDR) programs is beyond the scope of this article, but their basic operation warrants some description to understand their inclusion as a potential cross-boundary mechanism. The description here is based on work by Skuzinski and Linkous (2018) and Pruetz and Standridge (2008). In a TDR program, a unit of government with land use regulatory authority—typically a municipality or county—identifies parcels of land targeted for conservation or preservation (e.g., as agricultural land, as a historical asset) that might otherwise be lost because they are desirable sites for development at a density and intensity that would be allowed under current land use regulation; these parcels are designated as a “sending area.” The municipality or county also identifies parcels where development demand exists but where existing land use regulations do not allow such development at the desired density or intensity; these are part of a “receiving area.”

The program is usually voluntary, meaning that landowners in the sending area have the option of transferring by sale (or sometimes donation) their development rights directly to a developer in the receiving area or to the local government as an intermediary “bank” matching sellers in the sending area to buyers in the receiving area. The primary appeal of TDR programs is that the legal instrument used to sever the rights has the same force and potential perpetuity as any property transfer device, thereby creating durable conservation and preservation that do not shift with local government changes in administrative staff and elected officials.

While TDR programs are often within the purview of a single local government that has both sending and receiving areas within its boundaries, the programs can also be multijurisdictional (i.e., have sending and receiving areas in different local governments). Pennsylvania (53 P.S. §§ 10619.1 et seq.) and New Jersey (N.J.P.L.1993, c.339 (C.4:1C-51)) now explicitly allow for multijurisdictional TDR programs in state law; the former also allows for multijurisdictional plans to be implemented via direct or representative voting on developments of regional impact and revenue sharing across municipalities. Multijurisdictional TDR programs are also active in at least Colorado, California, and Washington (Nelson et al. 2012, 72-87), sometimes between unincorporated and incorporated areas, and other times between incorporated municipalities.

All these activities are unusual. For example, while Pennsylvania boasts 14 joint zoning ordinances among 42 municipalities as of 2015—making it the most active state in this regard—the state has more than 2,500 municipalities (Bond 2017). Ten joint economic development districts have been formed in Ohio, but the state has 938 municipalities and 1,308 townships (U.S. Census of Governments, 2017).4 The number of cross-boundary transfers as part of TDR programs is likely small, but unfortunately no reliable count of these—or of the number of acres they affect—is available. We also note that TDR programs in single jurisdictions require broader regional market awareness to understand developer demand in both receiving areas (to ensure the rights will be purchased) and sending areas (to ensure conservation or preservation truly is necessary). This need would, ideally, require at least cross-boundary consultation and perhaps coordination with neighboring and nearby local governments.

A Framework and Call For Research

What can RIGOs and other regional entities do to encourage cross-boundary land use regulation, if we assume a policy window will never open in which RIGOs are explicitly empowered with land use regulatory powers? We identify three possibilities for soft policy intervention based on activities common among RIGOs: convening, resourcing, and enculturating. Each of these works by nudging local decision-makers—in the behavioralist meaning of that term (Battaglio et al. 2019; Thaler and Sunstein 2009)— toward voluntary embrace of cross-boundary land use regulation. Table 1 summarizes these three mechanisms.

Convening is a central activity of RIGOs, which are organizations whose boards are composed primarily of local government representatives, such as managers or elected officials (Rickabaugh, 2021). Evidence suggests these local governments adopt a parochial and competitive posture, either intentionally or as a response to their socioeconomic and institutional context (Trounstine 2020; Skuzinski 2018; Briffault 2000). By having representation on a RIGO, these local leaders can more easily participate in a marketplace of exchange for sharing information and strategies (Sciara 2020; Bryan and Wolf 2010; Visser 2004). We also know that RIGOs regularly share expertise and share their own resources, as well as coordinate resource sharing across jurisdictional, governmental, and sectoral boundaries (Miller and Nelles 2019; Rickabaugh 2021). And evidence suggests that the convening function, beyond knowledge sharing, can encourage the development of interpersonal norms of reciprocity that persist over time and across policy domains (Thurmaier and Wood 2016; Vogel and Nezelkewicz 2002). The behavioral mechanisms by which these three activities of RIGOs encourage individuals in local governments to engage in cross-boundary collaboration are summarized in the right-most column of Table 1.

The mechanisms we have described are complex, and we lack the evidentiary record to suggest that they will engender cross-boundary land use planning, regulation, or implementation. We also know that they are likely dependent on RIGO capacities, resources, and goals. However, convening, resourcing, and enculturating would not be foreign to any RIGO as general competencies across a wide array of policy domains. A few extant examples illustrate the potential for how these mechanisms might manifest in land use policy specifically. The River Area Council of Governments5 serves several communities in Pennsylvania, including the Towns of Champion and Wilna and the Village of Carthage, and is a participant in the joint land use ordinance there. The Inter-Regional Planning Cooperative, an advisory body comprising representatives from five regional planning organizations in two Pennsylvania counties, includes in its mission statement the need to “identify and support land use planning and zoning ‘best practices’” (Regional Planning Handbook 2010, 2). And RIGOs are present in all the examples mentioned earlier of cross-boundary land use activity, and in many instances had completed plans, but much more would be needed to develop and defend any claims about their role in the policy outcomes. This brings us to the academic record.

The major deficit, and the one that must be overcome first, is in description. We simply do not know how many cross-boundary land use regulations exist. Much of the empirical record focuses on cross-boundary cooperation in general, or on cross-boundary planning activities. Cross-boundary land use regulation may be included within that record, but it would need to be extracted. Given the proliferation of interjurisdictional service delivery arrangements in recent years, the growing resource scarcity faced by local governments, and the increasing interjurisdictional knowledge and resource sharing motivated by the pandemic, we may be at an inflection point in which cross-boundary land use regulation becomes more common. Like other attempts at regional governance and government, such as city-county consolidation, we also have a very limited record of the cross-boundary efforts that were considered but floundered, or that were attempted but failed, but this is a trickier empirical hill to navigate. While Sciara (2020) has recently explored the limits of nudging local land use behaviors in the California RIGO context, a promising avenue of inquiry would broaden this kind of work to include other states, other types of regional entities, and a broader portfolio of nudges.

Once the descriptive endeavor is complete enough, the next step is to explore—beyond the single or multiple case study—the determinants and consequences of cross-boundary land use regulation. Is it more efficient for participating communities? Is it more effective at meeting regional goals? Does the shift to a regional scale for land use regulation promote more equitable development outcomes, or does it reify more inequitable ones? We hope these questions will be taken up by the broader research community, and we look forward to answering some of them.

Notes

References

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For more information about how we are using language in this colloquium, see this resource.

Emily Holloway