APA Smart Growth Plan Just Plain Dumb
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APA Smart Growth Plan Just Plain Dumb

American Planning Association guidelines could spell trouble for you, your customers, and freedom lovers across the U.S.

By Jennifer LeClaire

Big Brother is not only watching you he is keeping a close eye on your signage and your property. In this case, Big Brother's name is the American Planning Association (APA). Attempting to suggest to your city, county and state governments, what it thinks will make for "Smart Growth." Make sure you are sitting down and you may want to put on your seatbelt, because this scary fantasy may be the suggested reading material for your local government next.

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  • The APA's surveillance camera is in the form the Smart Growth Legislative Guidebook, a 15-chapter publication developed over the past six years and paid for with $2 million of taxpayer money. At first glance the Guidebook seems innocent enough. Its purpose is, on the surface, one that few would oppose: to set forth a legislative blueprint for zoning and land use planning that combats urban sprawl.

    Fair enough.

    Federal funding acts as an incentive for states to adopt this blueprint mandating "an integrated state-regional-local planning system that is both vertically and horizontally consistent." But the potential cost to sign makers, private citizens and small business owners is not fair enough. In fact, it is downright unconstitutional.

    Local governments lose power
    The APA-recommended system, suggests that states yield constitutional powers to the federal government. This is a welcome mat for bureaucracy and rigid control over issues that should only be determined by each specific community. Look no further, for example, than the APA's narrow view of how communities should appear and function. Zoning models and ordinances mandate "traditional neighborhoods," without representing an alternative view for community development.

    But the Guidebook does much more than give the federal and state governments the authority to govern the use of local private property. It gives the government the authority to seize your property if they decide it is a wetland. It gives the government authority to remove your signage without compensation if they do not like its location, color, period of display, size, height, spacing, movement or aesthetic features. It even gives the government the authority to seek criminal sanctions against you.

    Not even close to fair enough for a country built on principles of freedom and justice for all.

    Besides the APA, the Department of Housing and Urban Development is supportive of the Guidebook as is the Senate's Environmental and Public Works Committee. According to Michael Fluharty with HUD, "It is important to recognize the these are 'model' statutes provided to states solely for their consideration. Where the existing law on certain issues differs among states, the Legislative Guidebook provides a range of alternatives to reflect differing case law or enabling legislation. States are free to accept, reject, modify or ignore any and all of the Guidebook to the degree it best serves their policies, needs and priorities."

    In opposition are groups that represent landowners, small businesses and manufacturers. The Guidebook is already posted on the APA's web site. But if the Community Character Act is passed, along with its companion bill H.R. 1433, the government will allot $125 million of federal tax money to print and distribute this controversial Guidebook.

    State governments give way to federal policy
    What gives the Guidebook so much potency? The Guidebook contains model statutes that could reshape existing land use planning laws by replacing local control over economic land use planning with standards developed at the federal and state levels.

    Just look at a few examples:

    Model statutes direct state action
    The Guidebook presents model statutes for adoption by individual states. Model statute 9-201, for example, states that individual state Departments of Transportation "shall adopt and implement a transportation demand management program." But the model statute goes on to recommend specific details of what should and should not be mandated under the program. If a state adopts the model statute it hands over its legislative power to the federal government in that area.

    Parking and landscaping
    Even planning issues such as parking and landscaping are subject to uniform national standards under the Guidebook. Technical specifications in model statute 8-101, for example, would take power away from state planning committees and deliver decision-making rights to the federal government.

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    Coordination with federal government
    Under model statute 4-102 state planning agencies are paralyzed by the federal government, which mandates states to coordinate their programs with federal programs.

    Minority rules
    In a country where the majority is supposed to rule, the Guidebook recommends that practices of a minority should be adopted by all states. In model statute 8-502, for example, the Guidebook recommends and authorizes amortization and non-conforming uses of land, while currently only eight states in the U.S. authorize even a limited form of what the Guidebook recommends.

    Regulatory power expands
    Under the APA Guidebook, regulatory power of state governments over local governments is greatly expanded, as is regulatory power of local governments over individuals and businesses, potentially imposing financial hardships on these segments of society.

    Here are a just a few examples of potential economic impacts of the Guidebook:

    • States must review all local comprehensive planning before local government can adopt them. (7-402.2)
    • Red tape thickens. In addition to state and federal controls of wetlands, local government is given additional authority. (9-101)
    • Creation of a single state planning agency that has the responsibility for developing plans that address the economic, social and physical development of every community in the state.
    • Creation of a State Futures Commission with the purpose of formulating a "Strategic Futures Plan" that recommends issues -such as economic, demographic, sociological, educational, technological - affecting the state and each local community. (4-201)
    • Authority to violate state constitutions that give zoning authority directly to counties and municipalities. (7-402.2)
    Local governments may also require site plans prior to the approval of development permits and are encouraged to adopt zoning ordinances that promote the use of transfers and purchases of development rights that stymie private growth.

    The question of constitutionality
    Perhaps the most compelling question is whether or not the Guidebook, and its mandates, are constitutional. The First, Fourth, Fifth, Tenth and Fifteenth Amendments could be oppressed by this type of legislation.

    The First Amendment
    "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

    But despite the First Amendment, the Guidebook gives local governments the power to regulate individual businesses by mandating 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." This greatly impacts a business' right to advertise on company premises. A business can even be held criminally liable for violating content regulations of its sign. This is a gross violation of free speech. (11-302; 8-201)

    The Fourth Amendment
    "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

    But despite Fourth Amendment protections, the Guidebook allows administrative warrants to be issued to search private property without probable cause so long as the search is consistent with a valid administrative scheme, such as housing safety. Further, local governments can obtain inspection warrants for suspected land violations without notification to the property owner. (11-101)

    Under model statute 11-101, inspection warrants may also be obtained based upon allegations made by anyone. Local officials and police are exempted from trespass laws during inspections for possible land use violations.

    The Fifth Amendment
    "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

    But despite the Fifth Amendment, the Guidebook encourages the use of moratoria in all areas except communities adopting the "traditional neighborhood" smart growth plan. (8-184) Local governments can also increase bureaucracy by designating undeveloped private land as Historic Landmarks and requiring a Certificate of Appropriateness before the land can be developed. (9-301) Similarly, local governments can designate "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)

    At least six other model statues also trample on the Fifth Amendment.

    The Tenth Amendment
    "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

    But despite the Tenth Amendment, the Guidebook proposes model statutes that give the federal government control over state rights. Under 8-101, developers could be held accountable to federal standards that have no relevance to a community within the state.

    The Fourteenth Amendment says
    In section one: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

    But despite the Fourteenth Amendment the Guidebook's model statute on historic design review districts allows local governments to arbitrarily subject property owners in just those areas to design standards. (9-301). This is not fair and equal treatment under the constitution.

    This is all bad news for those that love freedom. But there is good news: The Bush administration opposes this plan and you can, too. Make your voice heard by calling or e-mail your congressman.

    Visit Congress.org to find contact information for your Senators.

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