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By Janet S. Kole

Smart growth is the newbuzz phrase for states allacross the country. Some

states, like New Jersey andPennsylvania, have tried to develop

statewide initiatives to prevent urbansprawl from gobbling up green fields

and to promote growth in areas thathave no sensitive ecological receptors.Others rely on local regulation at the

municipal or county level to keep envi-ronmentally valuable areas from being

degraded.Regulation has taken, broadly

speaking, two formsthe carrot (pro-viding incentives) or the stick (enforc-

ing laws and prosecuting violators).Which is the most effective approach?

How does New Jerseys approach lookin comparison to other programs cur-

rently in existence? Is New Jerseys

anti-sprawl bias going to work to pro-tect its environment? Will the emphasison smart growth depress the states eco-

nomic growth? It depends on whomyou talk to and which study you

believe.A compendium of whats going on

nationally, prepared by the AmericanPlanning Association, and co-authored

by American Bar Association staff anda professor and associate dean ofAlbany Law School, shows that in gen-

eral, anti-sprawl programs focus onstatewide planning reforms, although

many of the states efforts are aimed atstrengthening the ability of regions or

local municipalities to control wheredevelopment takes place. As theauthors of Planning for Smart Growth

note, the approaches to planningreforms are as varied as the states

themselves. APA: 2002, p. 9. In fact,some states, particularly in the Wild

West, have chosen to do nothing aboutplanned growth in their states. For

example, Wyomings legislature hasyet to pass any planning legislation,despite its governors concern that

even Wyoming, with its vast openspaces, should be concerned about

untrammeled growth.At this years Temple

Environmental Law and TechnologyJournal Symposium, co-sponsored bythe Special Committee on Smart

Growth and Urban Policy (ABA

Section of Environment, Energy and

Resources), a standing-room-onlycrowd heard state regulators, planning

professionals and academics speak ona full days worth of topics, includingwhich programs, regional or local, are

more successful and whether carrotsare more successful motivators to halt

sprawl than sticks.Although some panel members

vigorously disagreed with each otherover some specific details, such as

whether or not land use regulationaimed at preventing sprawl would haltdevelopment altogether, they were in

remarkable agreement on most of theissues they discussed. All the speaker

agreed that, one way or another, moneytalks, and that states can limit sprawl

encourage brownfields cleanups and

ensure affordable housing by creatingfinancial incentives to reward munici-

palities and developers that directgrowth into specific planning areas

The incentives can be direct out-right grants, low-interest loans, tax

abatements or indirect (transporta-tion grants for planning and infra-structure development).

William Buzbee, Professor of Lawat Emory University, provided both a

dissent and a broad-based statement ofthe truism that carrots work better than

sticks in encouraging compliance withanti-sprawl measures. Unlike some

other speakers, he believes that nowholesale rewriting of zoning or environmental laws is needed to prevent

sprawl. Instead, regulators need only torefocus or modestly change the rules

coupled with financial incentives, saidProfessor Buzbee, thats enough to

motivate developers, whose mantra isjust let me know what the rules are

VOL. CLXXVI NO. 12 INDEX 1158 JUNE 21, 2004 ESTABLISHED 1878

This article is reprinted with permission from the JUNE 21, 2003 issue of the New Jersey Law Journal. 2004 ALM Properties, Inc. Further duplication without permission is prohibited. All rights reserved.

Real EstateTitle Insurance

The National Quest for Smart Growth:How Does New Jersey Stack Up?

How New Jerseys approach willimpact the environment and the

economy remains to be seen

Kole is a shareholder in the Cherry

Hill and Philadelphia offices of

Flaster/Greenberg. She concentrates her

practice in environmental and land use

law. She is a vice chair of the Special

Committee on Smart Growth and Urban

Policy of the ABAs Section of

Environment, Energy and Resources.

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and Ill find a way to make a profit.The speakers agreed that sprawl is

inevitable unless planning occurs on aregional rather than local basis, and

that financial incentives, whether in theform of grants, loans or tax abate-

ments, are crucial to saving green

space.Our neighbor to the west,

Pennsylvania, is a poster child for thecarrot approach to land use goals.

The Commonwealth has used carrotsto control sprawl and preserve green

space and to encourage brownfieldcleanup and reuse. The Pennsylvanialegislature has allocated many millions

of dollars for local land use planning,farmland preservation, watershed pro-

tection, and brownfield cleanups(through performance-based loans and

outright grants). By any measure,Pennsylvanias is a success story; inthe six years since the beginning of its

incentive-based program, close to1,500 sites have been cleaned up and

returned to productive use, protectingpristine green acres in the process, and

planning for growth has been regional-ized at the county level, by providing

incentives for municipalities to worktogether for regional planning efforts.

Given that the experts believe

financial carrots work better thanenforcement sticks, and they agree that

regional planning is much more suc-cessful than local efforts, how does the

state of New Jersey stack up?New Jersey has formulated several

different initiatives so far in its attempt

to halt sprawl. In 1998, GovernorChristie Whitman signed into law the

Brownfield and Contaminated SiteRemediation Act that purported to

make it easier and less expensive toclean up contaminated sites, so that

they could be put back into circulationand prevent the use of greenfields. Thecenterpiece of the legislation was a

carrot a voluntary cleanup, evenby a responsible party, would be subject

to state oversight informed by themotive to be cost effective as well as

protective of human health. The legisla-ture directed New Jerseys Departmentof Environmental Protection to be flex-

ible to recognize that requiring thatcleanups remove all contamination was

neither feasible nor desirable in many

situations.

Despite the best-laid plans of thelegislature, however, New JerseysBrownfields initiative has begun to

desert the carrot and focus instead onthe stick. At the end of last year, for

example, the Department of

Environmental Protection announcedthat it was ordering three companiesthat refused an invitation to voluntari-ly clean up under the Brownfields

Development Area Initiative to cleanup their property, subject to hefty

penalties if they do not comply.Further, over time, the Department has

demonstrated an unwillingness to beflexible; its site mangers still show a

preference for a complete cleanup to apristine level. In contrast toPennsylvanias success story, the num-

ber of brownfield sites put back intoproductive use in New Jersey is small.

In another recent initiative aimeddirectly at curbing sprawl, Bradley

Campbell, the Commissioner of NewJerseys Department of EnvironmentalProtection, threw the real estate com-

munity into turmoil when shortly afterhe was appointed he introduced the so-

called BIG map, a map of New Jerseycolored in red, green and yellow, show-

ing where growth would be banned (inred) and where growth was preferred(green). Mr. Campbell made it clear

that governmental approvals for devel-opment in the green areas would come

quickly, while permits for red areadevelopments would be mired in

bureaucracy, utilizing both a carrot anda stick. The BIG map concept has been

all but abandoned, because of intenselobbying by the regulated communitycrying that it would be put out of busi-

ness and that if it was, a domino effectwould cripple the states economy.

Yet the BIG map put into visualform what the so-called experts believe

is the most effective form of plan-ningit offered carrots (speedierapprovals) for development in accept-

able areas, and the planning was bothregional and statewide. Why was it a

failure?The BIG map concept probably

failed because it was too much too fast.Critics pointed out that the BIG mapshould have been called the RED map,

since most of the state was colored red,

meaning no further development could

take place. It was also unclear whetherred meant absolutely no development

or that in certain circumstances, somekinds of development could occur. AsProfessor Buzbee pointed out in his

speech on smart growth initiatives, a

developer/entrepreneur is used to deal-ing with rules and making money aslong as the rules are clear. The BIG

map was, in some ways, lawless.Despite this initial misstep, the

Department, the governor and the leg-islature have continued to grapple withthe issue of sprawl and to attempt to

create a plan to slow it, if not to halt italtogether. New Jersey has long been

in the forefront of smart growth plan-ning, starting with its State

Development and Redevelopment Plan

and its use of grants to encouragemunicipalities to plan for growth (the

so-called Smart Growth PlanningGrants Program). The legislature has

appropriated millions of dollars forfarmland preservation, for direct acqui-

sition of land and for purchase of farm-land development rights.

So far the biggest hindrance to a

statewide plan for smart growth isthe role politics plays in the mix

Legislators split along party lines eachtime a new anti-sprawl measure is

introduced; the fight concerns whocontrols development in each region of

the state. Critics of each new piece oflegislation contend that the controllingparty will funnel growth opportunities

to their cronies, making smart growthlegislation one more arena for the pay

to play debate.The current attempt by the legisla-

ture to craft a statute to protect the NewJersey Highlands from overdevelop-ment is a prime example of the role of

politics. The new Highlands WaterProtection and Planning Act will pro-

tect 800,000 acres spanning 87 munici-palities by, inter alia, creating a region-

al council of 15 people which woulddevelop a growth plan for theHighlands, limiting dense development

to 15,000 acres. The Boards of ChosenFreeholders from two counties impact-

ed by the legislation, Warren andHunterdon, opposed the Act, claiming

that while they agree in principle withpreservation, they cannot agree with the

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way the Act provides for what they per-ceive to be a partisan council directing

development in the region. The Boardsare both Republican-controlled.

Further hindering the success ofNew Jerseys efforts is confusion: how

will the State Plan, the new Highlands

initiative, and the requirements foraffordable housing created by the

courts decades ago in the Mount Laureldecisions interconnect? Can a munici-

pality satisfy requirements to limit

growth while providing its fair share ofaffordable housing?

Some cynics might say that theconfusion and the partisan wrangling

are accomplishing, better than anystatute, a slowdown in development.

Builders, predictably, fiercely opposed

the Highlands legislation. They havewarned that the Act will cripple devel-

opment, and cause housing prices tobecome unaffordable. That criticism

puts the bunny in the hat: if develop-

ment is too expensive for both buildersand buyers, it wont happen, which is

the aim of smart growth protectionsThere is no stick here, but the finan-

cial inducement is a negative one: ifyou want to make money, develop

property somewhere else.

Once the rules become clearer, itremains to be seen if Professor

Buzbees formulation holds true, anddevelopers can still make a profit in the

Garden State.

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