The Great Swamp Watershed Association
Leonard W. Hamilton, Ph.D.
Science and Technology Advisor
Great Swamp Watershed Association
For more information, or hard copies ($10 each), contact
Great Swamp Watershed Association
Copyrights © 1997 Great Swamp Watershed Association
May be reproduced for personal and non-commercial purposes
To Helen Fenske
About the Editor Acknowledgments
1. Open Space: Our Legacy to Future Generations
Hon. Stuart Udall
Our nation's successes and failures in protecting open space as a natural resource.
2. Conserving Regional Resources
Robert D. Yaro, Regional Plan Association
An analysis of issues that require cooperation of different levels of government and the general public to preserve open space, so as to provide common resources such as water, recreational facilities, clean air, and so forth.
3. The Ecological and Biological Benefits of Open Space
Richard Kane, NJ Audubon Society
A discussion of the contributions of open space to maintenance of biodiversity and protection of endangered species habitat.
4. The Psychological Value of Open Space
Nora Rubinstein, Ph. D.
The benefits of open space and the activities promoted by open space for both physical and psychological health. A general discussion of issues such as crowding, crime, disease, and other risk factors.
5. Visioning Open Spaces in New Development and Redevelopment
Anton C. Nelessen, Ph.D., Rutgers University
The importance of open space in community planning, with special emphasis on the contribution of these areas to community and neighborhood character.
6. Sustainable Communities Through Open Space Conservation
Robert Pirani, Regional Plan Association
An analysis of the goals and policies of resource management that will allow the permanent use of these resources for future generations.
7. Economic Benefits of Open Space
Stephen Miller, Isleboro Islands Trust
A simple analysis of the economic benefits that open space brings to a community and its individual home owners as an alternative to different forms of development that add to municipal costs and raise taxes.
8. Preserving Open Space Without Raising Constitutional Claims
Lisa Moore, Esq., Environmental Defense Fund
A discussion of the history and present status of laws that relate to such issues as takings, the owner's right to develop, and other issues that pit individual decisions against the general welfare.
9. The Financial Argument for Open Space Preservation
Association of New Jersey Environmental Commissions (ANJEC)
A resource paper that provides detailed background and practical methods on the costs of locating development on open space.
Leonard Hamilton, Ph.D.
A step-by-step guide showing how to use municipal and county tax reports and other data to calculate the long-term economic impact of a specific project on the community.
II. Impact of Copperas Ridge Project on Rockaway Taxpayers
Alice Puleo and Leonard W. Hamilton, Ph.D.
A case history of a successful effort to block a housing project based on economic impact.
III. About the Authors
"Conservation...can be defined as the wise use of our natural environment: it is, in the final analysis, the highest form of national thrift--the prevention of waste and despoilment while preserving, improving and renewing the quality and usefulness of all our resources."
President John F. Kennedy
(1962 Conservation Message to Congress)
Now, even as the twentieth century winds to its close, many of us who
were nurtured in rural surroundings continue to share Jefferson's beliefs
about the contributions small communities make to our national life. But
our concerns are intensified as experts inform us that the bulk of the
U.S. population now resides in urban areas that lie within fifty miles
of the nation's shorelines in a burgeoning megalopolis that is swallowing
up most of the remaining rural areas along our coasts.
This unfortunate pattern of growth in our nation is leaving our cities
in disrepair and our countryside in desecration. Leaving once flourishing
cities behind, leaders of industry have built huge, sprawling corporate
centers where farmers once worked the fields. Laying waste to still more
of the countryside, developers have constructed huge, sprawling housing
developments so the workers and their families could follow the jobs as
they moved out of the cities. This undisciplined creed of reckless waste
has become the code, and our nation's resources are systematically being
raided in the name of economic progress.
With the passing of each year, our failure to preserve our open spaces
has piled new problems on the nation's doorstep. Our natural ability to
overpower the natural world has multiplied immeasurably our capacity to
diminish the quality of the total environment, and while individuals may
have reaped short-term profits, our nation has been saddled with a staggering
environmental debt. Our water husbandry has typified these failures: At
the same time that our requirements for fresh water were doubling, our
national sloth more than doubled our water pollution. We are now faced
with the need to build 10,000 treatment plants and to spend tens of billions
of dollars each year to chemically treat waters that once ran pure and
Our failed stewardship is not for lack of opportunities to learn the
lessons of waste. There was a time when the great herds of buffalo, the
magnificent forests, and the rich topsoil of our central plains were treated
as an endless bounty, and nature yielded to our taking. But nature has
a good memory, and at times of her own choosing, has belatedly presented
the bills for this waste and mismanagement to later generations, just as
the bills for our generations will surely be presented to our own children.
With stunning suddenness, our buffalo herds had disappeared, our forests
had been desecrated, and we faced the stark realization that there were
limits to our bounty. Eventually, we began to acquire some of the rudiments
of the land wisdom that we needed: we recognized that nature's laws are
paramount, that science and research hold the keys to husbandry, and that
government action is essential to save a permanent estate of wildlife and
water and forests and parklands.
It is sadly ironic that we are so slow to learn these lessons of nature,
apply them to our plans, and pass them on to the next generation. As inheritors
of a spacious, virgin continent we have had strong roots in the soil and
a tradition that should give us special understanding of the mystique of
people and land. It is our relationship with the American earth--our birthright
of fresh landscapes and far horizons-- that is being altered by what I
have termed the quiet crisis. Unless we are to betray our heritage consciously,
we must make an all-out effort now to acquire the public lands which present
and future generations need. Only prompt action will save prime park, forest,
shore line, and other recreation lands before they are preempted for lower
uses or priced beyond the public purse.
Generations to follow will judge us less by our material conquests than
by our success or failure in preserving in their natural state the waterways,
wetlands, forests, and swamps that have superior outdoor recreation values.
The quiet crisis demands a rethinking of land attitudes, a rekindling of
the spirit of preservation, a deepening involvement by leaders of business
and government, and a renewed search for methods of making conservation
decisions which put a premium on foresight. Once we decide that our surroundings
need not always be subordinated to payrolls and profits based on short-term
considerations, there is hope that we can both reap the bounty of the land
and preserve an inspiriting environment.
Beyond all plans and programs, true conservation is ultimately something
of the mind--an ideal of humans who cherish their past and believe in their
future. Our civilization will be measured by its fidelity to this ideal
as surely as by its art and poetry and system of justice.
Jefferson's concept of communities of yeoman farmers may be irretrievably
lost, yet one of our nation's richest resources today lies within the breast
of those who embody the Jeffersonian ideal and refuse to stand idly by
and watch the forces of planless sprawl proceed unchecked. Within each
of the small communities that lie in the path of the juggernaut of unplanned
expansion there have been individual, small-town Americans who want to
preserve the environmental attributes that make their communities distinctive.
Some of them have stood directly in the path and have said "No. These resources
belong to the common wealth of our nation."
In one case, the willingness of ordinary citizens to protect their common
lands led directly to the establishment of one of our most unique and important
parcels of public land, the Great Swamp National Wildlife Refuge. Without
warning, the powerful Port Authority of New York and New Jersey announced
in December of 1959 that the world's largest jetport would be built in
the Great Swamp of Morris County, New Jersey. This announcement was, in
effect, a call to arms, and local citizens banded together, collected money,
contacted political figures, and organized meetings with a zeal never before
seen by the Port Authority. It was not long before the news of this activity
reached Washington, where I was serving as Secretary of the Interior for
President John F. Kennedy. An aide told me one day that a group of citizens
in New Jersey had gone head-to-head with the Port Authority and wanted
to thwart the jetport plans by creating a national park. When I asked that
he characterize the nature of this fight, his analysis was short and precise:
"It's uphill all the way, and you have to get involved."
In November of 1961, it was my privilege to address the Great Swamp
Committee and some 600 guests where I promised to declare the area a national
wildlife refuge when they reached their goal of 3,000 acres of land. Although
some measure of success was to follow, it is regrettable that my words
on that evening more than 30 years ago can still be applied not only to
the Great Swamp, but to countless places across our land:
In a very real sense, what we are talking about tonight is the change
in man which is being wrought by our urban culture and its pressures. When
our ancestors came to America, they fought nature. The trees needed to
be cut to clear the way for farms. The swamps had to be drained. The rivers
and the streams had to be harnessed.
Today we are coming, I think, to realize that we have won our fight
with nature all too well. The roads have been cut, the swamps have been
drained, and too many of our rivers have been degraded from channels of
beauty to the squalor of public sewers.
We are learning that the search of modern urban man is not for new
ways to conquer nature but for ways to save the beauty of the out-of-doors
so that, to use Robert Frost's words, man can gain new insight from "country
On May 29, 1964, I was again invited to the Great Swamp, this time to
accept the land on behalf of the United States government, creating the
Great Swamp National Wildlife Refuge. I have always taken special pride
in this project not only because of the courage and tenacity of the citizens
who made it happen, but also because it opened a new page in history. Prior
to this, the mention of a national park evoked the image of great vistas
with thousands of square miles of mountains or desert or forest. But this
was a swamp! A small, 55-square mile swamp in the middle of one of the
nation's most populous states. It was to be the first national wilderness
area east of the Mississippi, and has become a lasting tribute to our efforts
to preserve the remaining oases of nature in our urban areas.
The denizens of the Great Swamp may have won their most significant
battle, but 30 years later the war goes on with the relentless pressure
to transform the surrounding open spaces and woodlands into parking lots,
corporate centers, and mind-deadening housing developments. The argument,
in most cases, is that the benefits derived from developing the land will
be greater than the costs of maintaining it in its more primitive state.
This argument may never have been valid, and it certainly is not valid
in most cases today. The chapters in this volume detail the tremendous
positive value of open space from a variety of different perspectives.
Appropriately enough, this volume is being produced by the Great Swamp
Watershed Association on the site where one of the most significant battles
against urban sprawl was waged. Although many of the examples are specific
to this watershed, the lessons to be learned can be applied much more generally,
and this volume will be useful to all citizens or government officials
who want to plan a better future.
The Benefits of Open Space provides facts and arguments for those
who want to protect and enhance the livability and appeal of their communities.
For some, it will be an effort to stop the tide of commercial development
that transforms quiet neighborhoods into clogged streets and crowded housing
developments, creating an ever-increasing spiral of municipal costs. For
others, it will be an effort to protect a water supply for tens of thousands
of residents in the region. Still others may want to save a trout stream,
or a pond, or the habitat of a salamander. In each instance, an essential
tool will be the ability to demonstrate to municipal, state, and federal
officials the fact that open space is not a liability, that it does not
need to be "developed" to have value. On the contrary, it is almost always
the case that the highest and most valuable use for the land is to leave
it as it stands, preserved for future generations to enjoy.
As this volume suggests, we can even correct some of our previous errors,
because there are many paths to rural renewal. Every town or region can
initiate programs that will make it a more attractive place to live and
visit right now and, more importantly, guarantee a sustainable future.
Many small towns thrive today as "gateways" to parks or wildlife sanctuaries
or historic places--and many communities have yet to discover and exploit
the economic potential of natural or cultural assets that lie on their
As a result of citizen initiatives of the past several decades, hundreds
of new park, wildlife, and historic areas have been identified and developed
by our national, state, and municipal governments. As the homogenization
of urban America has accelerated, vacationers have grown wary of the moneychangers
who operate our ever-present tourist traps, and the lure of attractive
small towns has increased as places to live and to visit. A new term, ecotourism,
has become the clarion call of environmental planners across our nation.
Rural areas that raise funds to preserve distinctive architectural and
cultural qualities are making investments that will assuredly enhance the
future of their communities. Moreover, every small town can plant trees
and flowers--or preserve a marsh or forest or riverside park--that will
add to its appeal and its direct economic value.
This volume outlines the many different reasons why towns at the edge
of suburbia should fight for managed growth policies that respect nature's
limits and exhibit reverence for the human environment created by earlier
generations. The authors of this work suggest that communities would be
wise to begin the inventories of their assets by listing open spaces and
rural features and from this foundation, be assiduous in using a total
environmental approach in developing their plans and projects. I suspect
that some communities have buildings or trails or nature sanctuaries where
they could recount the stories of explorers who first trod parts of the
American earth. Perhaps others have overlooked opportunities to interpret
nearby ruins, or to commemorate the lives and work of memorable literary
figures. This heritage of the past may be their best guarantee of a sustainable
My own experience growing up in a rural area tells me this country needs
small towns. We need close-knit communities because they are excellent
places to rear our children. We need them as slow-lane refuges where people
overwhelmed by urban stress can find quietude and peace of mind. We need
them as an antidote that dramatizes the failures and shortcomings of American
urbanization. We need them as laboratories of cleanliness where we can
gather baseline data about environmental health. And we need the diversity
they provide, as a reminder of the lifestyles and values of an older, perhaps
We can have abundance and an unspoiled environment if we are willing
to pay the price. We must develop a land conscience that will inspire those
daily acts of stewardship which will make America a more pleasant and more
productive land. If enough people care enough about the world outside their
door to join in the fight for a balanced conservation program, communities
will flourish, and this generation can proudly put its signature on the
It is ironic that today the conservation movement finds itself turning
back to ancient land ideas of those who were here first; to the native
American understanding that we are not outside of nature, but of it. From
this wisdom we can learn how to conserve the best parts of our continent.
In recent decades we have slowly come back to some of the truths that the
native Americans knew from the beginning: that unborn generations have
a claim on the land equal to our own; that humans must learn from nature,
keep an ear to the earth, and replenish their spirits in frequent contacts
with animals and wild land. And most important of all, we are recovering
a sense of reverence for the land.
The Benefits of Open Space reminds us that each generation has
a rendezvous with the land, for despite our fee titles and claims of ownership,
we are all brief tenants on this planet. By choice, or by default, we will
carve out a land legacy for our heirs. We can misuse the land and diminish
the usefulness of resources, or we can create a world in which physical
affluence and affluence of the spirit go hand in hand. We still have an
opportunity to make history by creating life-giving, sustainable environments
for our children. It is time for a new wave of conservation action in rural
and suburban America. We must act--and learn to cherish and live in harmony
with our past--because that is the only way truly civilized people can
Robert D. Yaro
Executive Director, Regional Plan Association
While most concerned citizens would agree that it is important to protect
regional natural resources, any two reasonable people may define "region"
and "regional" in different ways, all of them legitimate. We can define
a resource, such as the Hackensack Meadowlands, for example, as one based
on political boundaries (Essex and Hudson Counties), geography (in North
Jersey), bio-regional systems (the Passaic and Hackensack watershed) or
urban systems (part of the Greater Newark or Tri-State metropolitan region).
Unfortunately, most regional resource systems, including rivers, forests,
mountain ranges, estuaries, and wetlands systems, transcend political boundaries,
making their definition, protection, and management unnecessarily complicated.
This is because town and county boundaries in most cases were not defined
by the underlying biological or geological systems, since King Charles
II and his successors in England, on which our system is based knew or
cared little about these systems when they designated many of these boundaries.
Complicating matters further, the expansion of metropolitan economies,
housing markets and transportation systems in the late 20th century means
that most of us live and work in even larger regions that transcend even
Regional Plan Association now defines the New York-New Jersey-Connecticut
(or "Tri-State") metropolitan region as an area of 10,500 square miles,
stretching from Trenton to New Haven and from Montauk to Poughkeepsie,
and including 31 counties, 750 municipalities, and parts of three states.
This area encompasses North America's largest metropolitan economy, valued
at $640 billion a year, including regional housing, employment and other
markets, transportation systems, and a vast array of environmental systems
that support the lives of the region's 20 million residents.
The region's growth is now on a collision course with the natural resource
systems, including public water supply watersheds, wetlands systems, estuaries,
forests, wildlife habitat and farmland: the "green infrastructure" that
makes life in the region desirable, and in many ways possible. For nearly
half a century, despite relatively low rates of population growth, most
of the region's growth has consisted of low-density, "de-centered" development,
to the extent that developed land now covers more than 40% of the region's
total land area. In fact, we have urbanized more land in the past 30 years
than we did in the previous 300. Most of these newly developed areas are
accessible only by automobile, contributing to the more than doubling of
automobile registrations in the past three decades. Cars, in turn create
greenhouse gases and pollutants and require paving that contributes to
air and water pollution and visual pollution. Continuation of these land
consuming development trends threatens the survival of the region's major
natural resource systems.
Protecting these resource systems will be an enormous challenge, but
it will also be a prerequisite if we are to retain the region's economic
vitality and quality of life. More than ever before, these two attributes
have become linked because the region's future economic success will be
defined by its ability to offer a superlative quality of life to its citizens.
This is because:
The components of quality of life can be defined in a number of different
ways. Regional Plan Association's 1995 Quality of Life Poll determined
that 89% of the Tri-State region's residents consider environmental concerns
important in determining the region's quality of life; in fact, the poll
determined that access to open space and greenery is the single most important
factor in determining people's satisfaction with the region's quality of
life. At the same time, 75% of the region's residents consider air and
water pollution to be a problem in their community, and two-thirds of them
would spend money for access to open space and for clean air and water.
Even those aspects of the region's quality of life that residents like
the least --highway congestion and high taxes-- are a consequence of our
sprawling, automobile-based development patterns.
The inextricable link between environmental quality, quality of life
and economic success was recently underscored by Fortune Magazine,
which, in preparing its annual Best Cities for Business list (November
13, 1995) concluded that " . . no matter which operations a company is
moving to a city, it had better be a nice place to live. Top quality workers
demand a top quality living environment. That means affordable housing,
good infrastructure, and plenty of opportunities for recreation and culture.
Lifestyle matters to talented people who have a choice of locations --as
nearly all do."
Through much of this century, each generation in New Jersey and the
Tri-State region has successfully responded to challenges that threatened
regional resource systems, making us national leaders in land use planning
and environmental protection:
The juggernaut of unplanned sprawl that threatens to cover most of northern
New Jersey threatens also threatens to undercut the region's natural resource
systems, and its economic prospects. This tradition of innovative programs
provides us with the institutional base and the public confidence to move
aggressively to protect these resource systems.
Although it is important to look at the region's environmental resources
as integrated systems, it is first necessary to define the individual resources
that require protection. These include:
Protecting these resources will require that we fundamentally alter
the region's development patterns, to attract new growth into compact centers,
described by the New Jersey State Plan as "communities of place." To do
so will require changes in values that drive residents and businesses to
"greenfield" sites. It will also require new forms of cooperation between
communities, levels of government, private property owners and developers,
and private conservation groups and government, as well as creative new
forms of regulations and incentives.
Elements of an effective strategy should include:
Across the United States and around the world, other metropolitan regions
are taking steps to manage and protect important natural resource systems.
Since the late 1940s, greater London has had effective programs to protect
the London Green Belt and a network of Areas of Outstanding Natural Beauty
(AONBs) and Sites of Special Scientific Interest (SSSIs) across southeastern
England. Paris has prepared a new Plan Vert (or Green Plan) to protect
systems of forests, watersheds, and special scenic and historic landscapes
ringing the Ile de France metropolitan region. Both of these regions benefit
from the full financial and administrative support of their national governments,
which feel a special responsibility to their capital regions --which hasn't
always been the case here.
In the US, more than 30 regional land use regulatory commissions have
been created since the 1970s, in areas containing some of the nation's
most important natural and scenic resources. Most of these areas faced
metropolitan or resort development, leading to the creation of regional
preservation strategies. These areas range from the Florida Keys in the
south to the Adirondacks, Cape Cod and Martha's Vineyard in the northeast,
to the Sawtooth Mountain district in Idaho to the Columbia Gorge and Lake
Tahoe on the west coast. In addition, a new network of national heritage
areas and corridors is being established in Massachusetts and Rhode Island,
Connecticut, Pennsylvania, Illinois, and other states. Some of these commissions
have been created as partnerships between states (Columbia Gorge and Lake
Tahoe, or partnerships between states and the federal government (e.g.,
the Blackstone Valley National Heritage Corridor in Massachusetts and Rhode
Island). These models, as well as those within the Tri-State region, such
as the Jersey Pinelands or Long Island Pine Barrens Commission could become
models for protecting larger natural areas in the region, such as the Appalachian
Highlands or the Kittatinny-Shawangunk range.
More recently, a movement has begun in the U.S. to create metropolitan
greenspace systems, many of them initiated or administered by private conservation
groups. The first of these is Boston's Bay Circuit, first proposed by Benton
MacKaye in the 1920s to create a permanent green ring around the metropolitan
area. This concept was revived in the 1980s, and is now a joint effort
of state and municipal governments and the area's extensive network of
private land trusts, including the statewide Trustees of Reservations.
In the San Francisco Bay Area, since the 1970s the private Greenbelt
Alliance has been promoting protection of a permanent greenbelt around
the 9-county region. Over a nearly 25- year period, several hundred thousand
acres of open space have been protected by public and private action, but
another estimated 525,000 acres remain at risk. In Portland, Oregon, the
metropolitan government, Portland Metro, is working to protect a similar
green network surrounding the region's urban growth boundary. In Chicago,
the Openlands Project is protecting a system of forests, watersheds, lakefronts
and prairies, including a new 23,000 acre prairie reservation at the former
Joliet Arsenal. In Philadelphia, a similar Greenspace system has been proposed
by the Pennsylvania Environmental Council.
Finally, RPA's third regional plan proposes to build on the Tri-State
region's one million acre park system to create a Metropolitan Greensward,
that would include 11 large "regional reserves" protecting the region's
major natural resource systems, and creating a permanent "green edge to
growth" in the region. Ten of the reserves would protect the region's major
mountain, estuary, and pine barrens systems, (including the municipal water
supplies serving most of the region). These would include the Appalachian
Highlands in New York and New Jersey, the Catskills, the New York Harbor
and Long Island Sound estuaries, the coastal bay and barrier island systems
on the New Jersey and Long Island shores, the New Jersey Pinelands and
other resource systems. The 11th reserve would be a network of protected
agricultural landscapes, including those in Hunterdon and Somerset Countiesin
New Jersey. The RPA also proposes that Greensward also includes other large
regional resource systems, such as the Great Swamp and the Meadowlands,
a network of greenways along rivers and ridge lines, and a system of urban
The RPA has already worked to create model planning systems to protect
these landscapes, in places like the Long Island Pine Barrens and the Catskill
watershed area, and will be working with coalitions of civic, community,
environmental and business groups to protect others. The common theme in
both of these efforts is that we need to strike a new balance between nature
and humans in these places, and a new balance between conservation and
development concerns, and between community and regional needs.
This bold vision for a permanent system of protected landscapes will
take decades to create, and its success is not pre-ordained. To succeed,
these initiatives will have to overcome long-standing conflicts between
local home rule and regional concerns, and between public and private interests
in land. Experience in New Jersey and elsewhere in the Tri-State region
suggests that these conflicts can be overcome in ways that respect the
interest of all parties. Efforts to create the Long Island Pine Barrens
Commission, for example, were locally initiated, and resulted in a redefinition
of home rule to include a three-town region encompassing the entire resource
system. And private property interests were safeguarded in this program
through assured purchase or transfers of development rights, and the designation
of a compatible growth area to accommodate needed growth in appropriate
locations. But it is also clear that these kinds of creative compromises
can only be struck when there is strong public leadership and new forms
of cooperation between community groups, environmentalists and developers
and property owners.
If we can succeed in providing this leadership, and striking this balance,
the investment of time and effort will be paid back in the form of improved
quality of life, strengthened economic prospects, and a healthy environment,
for generations to come.
Richard P. Kane
Director of Conservation
New Jersey Audubon Society
Open space, and especially natural open space (forest, wetlands), is
the guarantor of biodiversity, of the continuance on the planet of natural
communities of species, of fertility to feed all levels of the food chain
including people, and of clean air and water essential to the biological
health of all species, including homo sapiens (who frequently do
not live up to their name). As natural open space is maintained, so will
species richness, habitat diversity, and the health of all species be proportionally
maintained. In short, the conservation of species, the protection of biodiversity,
the maintenance of clean air, clean water and health is partly and significantly
a function of habitat size, that is, amount of open space.
A variety of habitats (forest, wetlands, grassland) provides food, shelter,
and space for the planet's many species to reproduce. Many of these exist
in complex relationships sometimes referred to as the web of life. Even
subtle changes (like a relatively small reduction in forest size) can cause
a ripple effect through the food chain or in adjacent habitats, and can
starkly illustrate the benefits of open space after it is gone. For example,
only a 12-percent loss of forest cover in a watershed will begin to show
an impact on the invertebrate life of a stream, while a 33-percent loss
of cover will exhibit major impacts (Klein 1979). Tom Gorton's Turning
the Tide (an account of watershed conditions in the Chesapeake region)
is instructive on this theme.
Filtration of pollutants is a major ecological benefit of forested open
space. A forested stream corridor helps to protect the subterranean ecosystem
of a stream or river as well as the surface water quality. Research by
J. V. Ward and others in the late 1980s shows large numbers of stonefly
larvae, amphipods and archiannelids in the zone of transition between the
riverbed and the groundwater, even up to 2 miles from the river channel!
This portion of a riverine food chain is the first to be affected by pollution
from runoff. Unfortunately, a great deal of wisdom is purchased at the
price of error. It is cheaper and more effective to maintain habitat, health
and water quality by conserving open space than it is to protect it by
mechanical or non-natural means. The Cahill Stormwater Report showed
this dramatically for water quality. State of the art, best management
practices for stormwater control still allow 30 to 40 percent of the pollutants
to get through the system (Cahill Associates, 1989). So water quality maintenance
is a major benefit of vegetated open space.
Wetlands are crucial not only for maintaining many plants and animals;
in New Jersey they are home to about one third of our endangered and threatened
species. At the same time, they provide free flood control, free filtration,
sediment control, and lots of food! Fully two thirds of our marine fishes
require wetlands in some phase of their reproductive cycle. Salt marsh
habitats are among the most productive in the world, one acre of salt marsh
being equal in biomass to 10 acres of farmland.
Our fresh and saltwater wetlands are invaluable for buffering and controlling
the effects of stormwater, by holding the water, slowing it down, and releasing
it slowly. The stormwater periodically is necessary to recharge the wetlands;
witness what happens in your favorite marsh when there is a drought! Water
storage is essential for wildlife dependent on wetlands for breeding success.
When impervious cover (pavements, roofs, malls, etc.) in a watershed becomes
too high a percentage of the total area, these natural functions of wetlands
don't operate as well. If we can conceive of wetlands as giant sponges,
we can easily understand that the capacity of a wetland to perform its
functions can be impaired by too frequent swamping, instead of periodic
swamping. It doesn't take as long as it used to for a flood to develop.
Likewise our forests perform many functions that are not separate in
the real world, giving us clean air, clean water, and a diverse array of
habitat niches for many species. The forested lands around reservoirs are
a hedge against nonpoint source pollution (NPS), something we forget, living
as we do in the age of end-of-pipe technology. The same forested watershed
that cleanses the downstream water supply also purifies the air, and hosts
many mammals and migratory birds. This is especially true in our deciduous
forests of mixed oak, and sugar maple/mixed hardwoods, the most botanically
diverse forests and the ones with the most animal species (Kane et.
al., 1992). These forests with their layered structure (Kricher and
Morrison, 1988) provide niches for birds on the forest floor (Ovenbird),
in the shrub layer (Wood Thrush), and in the canopy or overstory (Scarlet
Tanager). The larger the contiguous forest area, the greater the density
of individual animals and birds and the greater the species richness (diversity
of species). The number of animals and the number of species are partly
a product of forest structure and partly of habitat size.
In fact without a large core or forest interior, certain species drop
out of a forest, especially if the forest is fragmented or isolated. Ovenbird
has been known to drop out of a tract even at 4000 acres! Isolation of
a forest patch reduces the ability of forest species to recruit new breeders,
and fragmentation (corridors, power lines, etc.) permits access of cowbirds,
grackles, jays, cats and other suburban predators to the forest interior
where they would normally not penetrate (Dunne et. al., 1989). A
recent study in the Northeast showed how isolation of forest patches reduced
density and species richness of neotropical forest birds at six sites following
declines in regional forest abundance (Askins and Philbrick, 1987). Loss
of forest through development and fragmentation is one cause of a decrease
in migratory birds in the hemisphere (Terborgh, 1989) and in New Jersey
(Dunne et. al., 1989). Even some of our common and abundant birds
(Red-eyed Vireo, Wood Thrush, Eastern Wood-pewee, Ovenbird) are showing
declines in New Jersey (Serrao 1985; Leck 1982; Dunne et. al. 1989),
and a number of neotropical forest migrants are showing declines over 50
years in the Northeast (Hill and Hagan 1991). A principal benefit of open
space is clearly the maintenance of biodiversity.
Even small forest patches, while not large enough to contain large numbers
of resident animals or a diversity of interior forest species, still make
an important habitat contribution to the migratory birds of our hemisphere.
Patches of woods located on streams, rivers, and ridges are heavily used
by migrant birds as stopovers for foraging and resting during long flights
to the tropics (Dunne et. al., 1989). One outstanding example of
this phenomenon was reported in a study of habitat on the streams feeding
the Arthur Kill (Kane et. al., 1991). Some 20 species of warblers
totaling 100+ individuals were found in one small block-long forested tract
on the Elizabeth River in May! New Jersey is replete with other examples:
Hudson County Park in Bayonne; Losen Slote in Little Ferry; Tiffany Woods
at the edge of Trenton.
Other categories of open space with ecological benefits also should
be mentioned. Grassland has been called the most endangered habitat in
the world, because of such factors as development and desertification.
Certainly in the Northeast, the grassland community of species is suffering
a region-wide decline (Vickery
et. al., 1995) and requires management
if this community is to be preserved. This situation highlights an important
principle. Grasslands, pasture, and some croplands provide food both
for animals and humans. Farmland and airports, now virtually the only
grasslands in New Jersey, support numerous raptors, waterfowl, mammals
and a whole group of endangered, threatened and declining species including
Upland Sandpiper, the storied Bobolink, and Horned Lark, among others.
Mountaintops may support a high percentage of rare species, especially
plants. Lakes and bays support a variety of crustaceans, fish, water birds,
Ecological benefits of open space are inseparable from social and economic
benefits. Healthy aquatic food chains are indispensable for economies such
as the recreation, fishing, and tourist industries. The biological benefits
of open space also are directly related to human health. About 25 percent
of the compounds used in the pharmaceutical industry are found in nature.
That number will rise as more research is done on the complex properties
of plants and animals. At this point in human history, only five percent
of known plants have been screened for medicinal value. Rosy periwinkle
was the first plant used in cancer treatment. Recently it was discovered
that taxol, from the Pacific Yew in the Pacific Northwest ancient forests,
combats breast cancer. Blood from the king crab is used in the diagnosis
and treatment of meningitis. Research on the diet of the Hermit Thrush,
insects eaten and insects rejected by the bird, led to the discovery of
new compounds that influence the heart rate, either slowing it or increasing
it, with a possible application for the treatment of heart disease. A species
of wild corn was used to stop the spread of a fungus that wiped out 15
percent of the U.S. corn crop in the 1970s. Open space is the repository
of all these biological benefits: "There are more things in heaven and
on earth than are dreamt of in your philosophy, Horatio."
Humans are sometimes thought of as being over, against, or above the
natural world and not part of it. This misperception is a consequence of
our having been isolated and insulated from the open spaces that surround
us by development, television, malls, consumerism and a host of causes
that can cause us to miss very fundamental points about open space-- that
it provides our food, our water, our clean air and our very health. At
New Jersey Audubon, we hear school children say, in answer to the question
"where does water come from?": "the tap." "And where does food come from?
" Answer: "the supermarket." It will be a mistake if we forget our connections
to the earth. Without open space, our life is diminished. We will never
be exempt from the ecological/biological benefits of open space!
Askins, R.A. and M. J. Philbrick. 1987. Effect of changes in regional
forest abundance on the decline and recovery of a forest bird community.
Wilson Bulletin 99:7-21.
Cahill Associates. 1989. Stormwater management in the New Jersey Coastal
Zone. Division of Coastal Resources, NJDEP. Trenton, NJ.
Dunne, P., R. Kane, and P. Kerlinger. 1989. New Jersey at the Crossroads
of Migration. New Jersey Audubon Society. Franklin Lakes, NJ.
Hill, N.P. and J. M. Hagan, III. Population trends of some Northeastern
North American land birds: a half-century of data. Wilson Bulletin
Kane, P., K. Anderson and D. Rosselet. 1992. Bridges to the Natural
World. New Jersey Audubon Society. Franklin Lakes, NJ.
Kane, R., P. Kerlinger and R. Radis. 1991. Birds of the Arthur Kill
tributaries, 1990. Records of New Jersey Birds 17:22-33
Klein, R. 1979. Urbanization and stream quality impairment. Water
Resources Bulletin 15(4):948.
Kricher, J. and G. Morrison. 1988. Ecology of Eastern Forests.
Leck, C.F. 1982. Declines in some forest birds over 20 years. Records
of New Jersey Birds 8:5.
Serrao, J. 1985. Decline of forest songbirds. Records of New Jersey
Terborgh, J. 1989. Where have all the birds gone? Princeton, NJ.
Vickery, Peter D. et. al. 1995. Grassland Birds: An Overview
of Threats and Recommended Management Strategies. 1995 Partners in
Flight Conference Proceedings (in press).
Nora J. Rubinstein, Ph.D.
There's a yearning that can be expressed as a place more simply than as a feeling: for beauty, rest, purity, transfiguration...It can be like this with the land....Most of us live in cities. Nature as we define it, is where we go on vacation. Wilderness is what our lives are not: noble, quiet, unhurried...We go backpacking to get away from the content of our lives, to forget what we've become. ...So, wilderness is about as far from life as we can make it. We'd rather it was over the horizon...So we won't have to alter our ways. So that we can lie to ourselves, that in spite of what we do, someplace, somewhere is safe.
(Rawlins 1992, 4-5)
Like the wilderness, our values for open space may be elusive. As individuals,
we know what we seek when we take a walk through a pristine landscape,
climb a mountain or find a place along the shore to be with friends. It
may be a desire for solitude or intimacy, challenge or repair, transcendence
or escape. We also know what we feel when we return to the rituals of our
daily lives, whether more at peace, re-energized, or reluctant. But other
goals that are harder to verbalize are no less important to our quality
of life. They may include the smell of a seasonal bloom, the aesthetics
of the sequence of vegetation and clearing that lies along a path, or the
mere knowledge that the open space exists--whether or not we use it.
The discovery that such "sacred" places have been lost through development,
overuse or neglect may have significant effects on both individual and
community.1 But if it is difficult to define the benefits of
landscape, it may seem impossible to objectively evaluate their loss when
compared to a balance sheet of financial returns of new housing or legislated
"easements." If we are to retain, maintain and plan additional parks and
stream corridors; if we believe that our encounters with the natural world
provide something of personal and societal value beyond ecological and
economic benefits, we must find some means of describing the value of open
space in terms that are reliable and valid, expedient and acceptable to
both advocates and adversaries.
Perhaps we can expand the traditional concept of carrying capacity 2
to measure the degree to which our emotional, cognitive, even physiological
needs are met by open space. Such a "psychological carrying capacity" would
measure existing and proposed spaces against the requirements and uses
of current and projected users, assessing whether the amount and type of
existing open space is inadequate, sufficient or redundant3.
We would need to know what balance of activities or development perpetuates
or interferes with optimal experience of such places. We would need to
determine whether all those who use nature and open space need the same
kinds of places, or for that matter, whether all people desire open space
access4. We have answers to some of these questions, but many
are still being explored.
We must begin by defining "open space" because to explore the range
of natural and "designed" spaces and their uses is to bear witness to an
American obsession 5. The types of open spaces range from extensive
wilderness zones that host relatively few people per acre (Gibson 1979;
Graber 1976; Kaplan, Talbot 1983) to the green belts that surround towns
like Boulder, Colorado or the 37,000 acre park system of Portland, Oregon
or the river walk through the heart of San Antonio, Texas. Open space research
has examined the more modest urban and suburban parks and plazas that can
absorb the recreation and relaxation of thousands in a weekend6
as well as physically constrained "vest-pocket parks" like Greenacre Park
or Paley Park in midtown Manhattan, small, concrete spaces with trees and
water that host hundreds during the course of a lunch hour (Altman, Zube
1989; Francis 1987; Taylor 1979; Whyte 1988). Open space research has also
examined urban community gardens (Malakoff 1995) and personal gardens in
urban, suburban and rural communities (Relf 1992)7. Some city
gardeners have even created green oases of vegetables and flowers on their
fire-escapes and roofs8 and New York's Mayor Rudolph Giuliani
has launched a tree counting program at the behest of ex-Parks Commissioner
and "life long tree-lover" Henry Stern (Bumiller 1995). Is it reasonable
to include such diverse spaces under the rubric of open space?
Researchers have adopted both theoretical and pragmatic approaches to
defining open space, in an effort to determine whether what we find compelling
in wilderness shares anything with city plazas and other open spaces. Wohlwill
(1983) juxtaposed the natural environment with that which is "built, artificial
or man-made" (Wohlwill 1983). He defined the natural environment as:
...the vast domain of organic and inorganic matter that is not a
product of human activity or intervention...It includes the world of rock
and sand, of shoreline, desert, woods, mountains, etc., and the diverse
manifestations of plant and animal life that are encountered there. It
excludes the man-made world: our cities and towns, our houses and factories,
along with the diverse implements devised by mankind, for transport, recreation,
commerce, and other human needs (7).
While acknowledging that some places fall on the borderline between
these two idealized extremes, Wohlwill's definition focused on landscape
in the absence of human intervention, a position that is problematic
given the actual interdependence of people and nature9.
This has given rise to another view of the natural environment, as part
of a broad continuum of "sustainable communities," integrated with their
populations. Sullivan (1992) proposed an approach which defined open space
in terms of its land-use including "greenbelts of undeveloped forest land
and open space, along with nearby wetlands and agricultural lands." This
perspective may reflect more of the spaces nature-seekers actually use
and may underscore the need for regional land-use planning which considers
open spaces as part of a broad web of human activity and ecology, from
private to public, from intensive use to neglect10.
But in basing both of these models in ecology and the impact of use
patterns on the character of the land, the impact and meaning of open space
for users has been neglected. This is a subtle but crucial shift
in emphasis. It suggests first, that nature is valuable to the extent that
it supports particular recreation and restorative activities, and second,
that there is an inherent value in our access to nature and open space,
which exceeds the uses to which we put it. Kaplan and Kaplan (1983) wrote:
"[For residents] the question of the salient categories of nature
can be answered in part in terms of the kind of activities that people
engage in near their homes. From this perspective, areas that permit nature
walks, relatively large open areas for playing, children's play areas,
and protected areas for sitting outside constitute different kinds of natural
environments (1983, 141)."
For these users, the natural environment is effective to the degree
that it is expedient. John Hendee identified the dominant pattern of recreational
use as the "social campground," noting that for the majority of park users,
landscape and scenic values are secondary to the desire for a particular
type of social interaction centered on family recreation, in which "a weekend
wave of social campers develops rapidly into a micro-community [and]...the
expense of a camper vehicle and the ambience of the campground limit social
contact with undesirables11."
But Driver et al (1978) have suggested that while most research focuses
on the reasons for actively engaging in recreation activities at public
natural areas, these studies ignore the benefits of the areas themselves.
There is now data that indicates that even the passive viewing of natural
environments has both physiological and psychological benefits with broad
ranging implications (Ulrich 1984; Verderber 1986).
The user-based approach permits researchers to take an inductive case
study approach to the analysis of open space, by examining attitudes toward
specific types of spaces and attempting to determine the shared qualities
of preferred environments. The Kaplans (1989) have studied attitudes toward
the wilderness, scenic routes, the varied landscapes along the route of
a storm drain, and "nearby nature" including the plantings used by developers
to attract residential buyers. With Ulrich (1983) and others, they have
determined that favored landscapes include water, dense vegetation with
a cleared understory, deflected vistas, even and homogeneous ground surface
textures, landscapes of moderate to high complexity and moderate to high
levels of depth, with temporal variety12. However, much of this
research has examined attitudes by surveying subjects who view juxtaposed
color slides of vegetated natural environments with non-vegetated urban
ones. This dichotomy reflects neither the design of most urban parks and
plazas that incorporate a moderate amount of vegetation, nor the fact that
city-dwellers must and do find solace and respite in just
such plazas and local parks.
In response to the need for information on the benefits of urban open
space, a host of studies have examined the use of public spaces with limited
or moderate vegetation located in the heart of metropolitan areas (Altman,
Zube 1989; Francis 1987; Jackson 1979; Taylor 1979). These studies have
described the power of the urban park or plaza to reduce stress, act as
a social facilitator and encourage community cohesion. They play a significant
role in the lives of urban dwellers with less access to the more vegetated
landscape and provide societal benefits not available to those using areas
where social contact is dispersed (Brill, 1989).
These ecological and user-based conceptual approaches then, raise crucial
questions for planners, politicians and preservationists who allocate funds
and legislate open space, and whose views of landscape may differ radically
from those of the users. Are landscapes-- whether developed or preserved--
to be planned on the basis of ecology, economics, and use patterns alone,
or do we also need to account for their meaning in psycho-cognitive, behavioral
and symbolic terms, to current and projected users13?
If we are to adopt this broader view which incorporates ecology, activity
and meaning, then there are benefits of open space at any and all
levels, ranging from the intimate to the awe-inspiring. Writing on place
attachment, Riley said, "Landscape I use in a broad, naive sense,
as a setting for human experience and activity. In scale, it might be described
as 'larger than a household but smaller than one of earth's biogeographical
regions'" (1992, 13). Therefore, this paper will also examine the broadest
continuum of open spaces, from eco-based to activity-based, from personal
to public, and from those sustained by clear and substantial manipulation,
design and intervention, to those that reflect little or none. The rationale
for this approach stems from an arguable assumption that many, if not all,
of the benefits of open space may be achieved in a variety of types of
environments and at different scales. While all landscapes may not be perceived
as of equivalent character or quality, there are striking echoes of similar
use patterns and attitudes toward the outdoors across the spectrum.
Some researchers maintain that these echoes are not mere coincidence,
but rather a reflection of an innate, survival-based dependence on nature.
They suggest that we carry within us, a kind of predisposition that mandates
our awareness of the potential of any landscape to nourish and shelter
us (Driver & Greene, 1977; Kaplan & Talbot, 1983; Ulrich, 1983)14
describes this as a "psychoevolutionary framework" and examines those landscapes
that people identify as preferred, for qualities that make them more likely
to sustain life. In the Kaplans' classic book, The Experience of Nature
(1983), the authors emphatically maintained that "Preference can be expected
to be greater for settings in which an organism is likely to thrive and
[be] diminished for those in which it may be harmed or rendered ineffective.
Thus humans are more likely to prefer a setting in which they can function
Others suggest that we have translated our survival needs into a more
spiritual or metaphysical need for landscapes that are based in, but no
longer tied to, our evolution. Paul Shepard related our attraction to the
natural landscape to ontogenesis and parenting (Shepard 1977). Margaret
Mead cited Edith Cobb's classic work on childhood saying, "Cobb suggests
that we must think about a human capacity that is just as basic, and just
as necessary to human well-being (though not to mere survival) as food
and drink. She called this the 'necessary relationship to the natural world--the
satisfaction of a cosmic sense'....Edith Cobb...identified the 'cosmic
sense' with breathing" (Mead 1977, 20).
But not all researchers see the attraction to natural spaces and the
"out-of-doors" as innate, choosing instead to interpret the relationship
as more pragmatic or "instrumental," a term that suggests our attraction
to landscape may be nothing more than a means to an end, or a rational
solution to a goal (Westover 1989)15. The outdoors is valued
because it provides for the individual's desired physical or emotional
nourishment or recreation, and we differ only in how much we need the outdoors
to meet our own individual goals. We fish or hunt for food; we mountain
climb or cross-country ski or go river rafting because it is a form of
recreation at which we excel. We challenge ourselves in activities that
stress body and mind.
The development of Outward Bound expeditions is a classic example of
the use of the natural environment to test one's mettle16. A
recent end-of-course survey based on 7,943 questionnaires asked participants
how they felt about their skill levels, and 86 percent said that indeed
they "had learned the outdoor skills" they had wanted and 95 percent said
that they had acquired stronger outdoor skills as a result of their participation
(Sakofs, 1994). Kaplan and Kaplan (1992) echoed this position in evaluating
the journals of students on a wilderness expedition developed along the
lines of the Outward Bound programs. They noted that participants expressed
a strong desire to change in the direction of greater independence, self-discipline,
patience, and self-reliance.
This "functional" or "instrumental" position was reflected in Knopf's
(1983) study of the values of two types of wilderness backpackers--experienced
hikers interested in escape and self-awareness vs. inexperienced hikers
who socialized in larger groups and were less accepting of land-use regulations
that would restrict their activity. Knopf suggested that the recreationist
is a "purposive actor" seeking an optimal and instrumental relationship
with the environment (Vining 1992). Like others, he emphasized the differences
in our views of the outdoors, rather than our consensus.
Some researchers identify personal experience as critical to the development
of an interest in the natural environment, implying that our idiosyncratic
environmental histories lie at the heart of our connections to nature,
rather than some innate or cosmic bond. Others focus on the role of culture.
Ladd (1977) wrote:
"...early environmental experiences in both natural and built environments
are of profound significance in determining future environmental requirements
and environmental satisfactions, ...significant developmental tasks require
experience in natural and built environments, and the quality of environments
influences the level at which the tasks can be carried out...[and] environmental
requirements are relative. They depend on an individual's culture, personal
history, and perceptions of the range of environments available" (15).
Finally, our relationship to the landscape may stem from a desire, conscious
or not, to see ourselves reflected in built or natural forms. The manner
in which we plan our landscapes from lawn to wilderness17 may
provide symbolic "information," communicating our lifestyles and culture,
our economy, religions and personal and societal mythos. In one
of a series of books describing landscape as a text that can be "read,"
J. B. Jackson (1994) wrote,
"Since the beginning of history, humanity has modified and scarred
the environment to convey some message...For our own peace of mind we should
learn to differentiate among those wounds inflicted by greed and destructive
fury, those which serve to keep us alive and those which are inspired by
a love of order and beauty, in obedience to some divine law."
What then do we think of a society that chooses to develop rather than
preserve its land? Can we read its priorities in the state of its forests
and the cleanliness of its water18? Yi-Fu Tuan (1974) suggested
that changes in agricultural land use also reflect technological innovation,
new trends in marketing, and food preferences, a theme echoed by Driver
and Greene (1977) who suggested that contact with nature is a critical
"equilibrating" counterpart to the advancement of technology (Abbott, cited
in Catton, 1983.)19
In contrast, a number of researchers suggest that the value of nature
is in its "nonresponsive" character, that is, humans seem small and insignificant
in face of the timeless sea-scape or mountain vista. Our symbols are transitory
and powerless in the face of nature's awesome power. In comparison, our
problems seem unimportant or manageable. Wohlwill (1983) wrote:
"This failure of the wilderness to be in any way moved by the person
entering it may indeed be at the heart of the restorative powers claimed
for it. More particularly, it could readily account for the feeling of
freedom and oneness with nature engendered by the wilderness--where the
individual experiences so little reaction or acknowledgment of his or her
own presence that the boundaries between the self and the environment become
muted and lose definition" (25).
Whatever the origin of the symbiotic relationship between people and
their natural world--whether based in evolution or in something more pragmatic;
whether a symbolic reflection of us or counterposed to our manipulations--it
is clear that there are measurable benefits to such access. They include
both the physiological and psychological impacts of nature.
Research on the physiological role of open space centers on the manner
in which direct or vicarious experience with the vegetated landscape reduces
stress, arousal, and anxiety. In a broad series of studies spanning nearly
20 years, Roger Ulrich and others have linked photo simulations of the
natural environment to reduced stress levels as measured by physiological
indicators such as heart rate and brain waves. An early study in Ulrich's
series (1979) demonstrated that subjects experienced more "wakeful relaxation20"
in response to slides showing vegetation only and vegetation with water
as compared with urban scenes without vegetation. This data was supported
by attitude measures which indicated lower levels of fear and sadness when
subjects viewed nature related slides, as compared with urban slides.
Ulrich's use of slides, while controversial, presented a conservative
test of the relationship between nature and physiology. If reduced stress
results from passive experiences of the natural environment, we can only
assume that the effects of active exploration would be greater.21
He suggests that such opportunities to focus on something other than normal
life stresses "provides a breather" by blocking or reducing stressful thoughts,
and by fostering "psychophysiological restoration." These results have
been confirmed in his studies of hospital patients (Ulrich 1983; Ulrich
1984). Recovery was faster, nurses made fewer negative evaluations in patient
reports and there was less use of analgesic drugs among post-surgery patients
who had a view of exterior greenery than among matched patients with views
Certainly, this does not deny the important role of active exploration
of natural environments in reducing stress, and much of the research suggests
that physical exercise, 'being away' (Kaplan & Talbot, 1983) and achieving
a sense of control with respect to work pressures and other stressors through
a 'temporary escape' all provide measurable benefits. In fact, Rotenberg
(1993) suggested that the exercise involved in exposure to the outdoors
is critical to human health. It is however difficult to separate the impacts
of nature itself from those of exercise or psychological escape. Therefore
the study by Hartig, Mang, and Evans (1987)23 on the restorative
effects of nature is important. A series of assignments were designed to
produce stress, and recovery was attained through reading magazines, listening
to music, walking in an urban area or walking in a natural area. Subjects
who walked through the vegetated landscapes had "more positively toned
feelings" than others.
However, in what may be the most significant study of the link between
nature and health, Cimprich's (1990) work with breast cancer survivors
suggested that engaging in personally enjoyable and nature-related "restorative
activities" had dramatic effects on cognitive process and quality of life.
The women were divided into two groups and those in the experimental group
signed a contract agreeing to engage in selected activities three times
a week for 20 to 30 minutes over a 90-day period24. Initial
pre-intervention measures showed severe "attentional fatigue" for both
experimental and control groups. At the end of three months, the experimental
group showed significant improvements in attention, on self-reported quality
of life measures, and they had begun a variety of new projects, while control
group members, who had been given no advice regarding nature exposure activities,
continued to have deficits in measures of attention, had started no new
projects, and had lower scores on quality of life measures. In reviewing
Cimprich's work, Stephen Kaplan (1992) wrote:
"The difference between nature as an amenity and nature as a human
need is underscored by this research. People often say that they like nature;
yet they often fail to recognize that they need it...Nature is not merely
'nice.' It is not just a matter of improving one's mood, rather it is a
vital ingredient in healthy human functioning" (141).
It is however, this "improvement in mood" that has inspired the preponderance
of research on the value of the natural environment. It is ironic then,
that while there is an extensive body of self-report data linking the natural
environment or open space to everything from increased self-esteem to stress
reduction, there is little conceptual analysis and few measures designed
to synthesize or test the data for validity or reliability. Few studies
attempt to categorize the dozens of phrases used to identify the value
of a walk in the woods or a day spent bird-watching along the edge of a
marsh. Few studies track longitudinal effects of wilderness expeditions
on changed attitudes and behavior. If it is difficult to quantify the manner
in which lives are altered, it is easy to obtain narrative data about the
impact of a favorite view or path. The task will now be to find objective
indices of the impacts of nature. It is clear however, that there is a
significant overlap and consistency in the way people describe their experiences,
even if we are not sure how to assess it in cost-benefit terms.
Perhaps the dominant expressed rationale for using open space is the
need for a place of contemplation and solitude. People are drawn to gardens,
urban and suburban parks, and bucolic natural landscapes to sit passively
or to engage more actively in exploratory behavior. Many say they seek
places set apart physically, or separated from other people, while others
seek to simply remove themselves from their daily rituals and need no physical
or social separation25. In fact, Kornblum and Williams' (1983)
study of Central Park suggested that while the Park is most heavily used
by individuals during the week, its weekend use is characterized by family
and friendship groups26. In fact, second only to an interest
in "the Park itself," people come to watch and be with other people as
they have since the 19th century.27
Does our expressed desire for privacy belie our behavior? It is possible
that when we discuss the importance of open space in our lives, we think
first of the times spent by ourselves, as more important than those spent
in company. It is possible that when we say we seek privacy, we mean a
place of protected intimacy rather than solitude. Most likely, we consider
open spaces to be places that enable a "psychological escape" or
an opportunity to think in a less pressured way, about the circumstances
of daily life, whether or not we do so in a solitary or companioned way.
Natural environments are unique in their ability to provide solitude and
privacy, no matter how we use them, or even whether we use them. The very
idea that we can get away, whether or not we do so, provides a psychological
The solitude of natural environments also enables us to discover and
explore our social and personal identities. Brill (1989) contends that
urban public spaces provide us the opportunity to explore the range of
permissible behaviors, and they act as a "school for social learning."
In the Solace of Open
Spaces, Gretel Ehrlich (1985) wrote:
"If I was leery about being an owner, a possessor of land, now I
have to understand the ways in which the place possesses me. Mowing hayfields
feels like mowing myself. I wake up mornings expecting to find my hair
shorn. The pastures bend into me; the water I ushered over hard ground
becomes one drink of grass. Later in the year, feeding the bales of hay
we've put up is a regurgitative act: thrown down from a high stack on chill
days they break open in front of the horses like loaves of hot bread"
But natural environments also enable us to be with others and as Terry
Tempest Williams (1991) wrote in describing the weekends spent camping
with her family by the side of a stream, "Our attachment to the land was
our attachment to each other (15)." There are few portraits of the meaning
of the natural environment as powerful as the one she has painted of the
degraded ecological character of the Great Salt Lake as it parallels her
mother's illness and death from breast cancer.
Given access to places that provide the opportunity for tranquility,
solitude, or socialization, what do we seek? Much of the research suggests
that we seek not only an opportunity to be contemplative, but to restore
ourselves. In their study of the places people go for solace and relief,
Francis and Cooper Marcus (1991) suggest that landscapes should encourage
(1) a sense of calm or balance; (2) a sense of escape that allows one to
be distracted from one's problems; (3) a sense of perspective or self-awareness
that permits one to see their own problems as less threatening or debilitating;
(4) the opportunity to work the problems through; and (5) an opportunity
The idea that calmness or balance is crucial to a restorative experience
is an echo of the oft-stated desire for solitude or peace, but the authors'
suggestion that there are significant gender differences raises a question
regarding the nature of demographics as they relate to use patterns and
environment preferences. In their study, 68 percent of women adolescents
and 78 percent of adult women sought such places as compared with only
36 percent of male adolescents and 23 percent of adult males. The places
identified as significant were those that were private, but located in
a public setting, with a view, water, and vegetation. Tuan29
suggested that what we need are places which combine an enclosed small-scale
place and an open large-scale space to support the complementary feelings
of security and freedom.
The opposite pattern is seen for the desire to escape from problems
through distraction, with men twice as likely as women to seek distraction
in places characterized by water, animals, exercise, plants, books, or
shops. The Kaplans (1989) made the point however that distraction or escape
does not equal restoration, and that there must be some further benefit
of vegetated landscapes if we are to do more than take a "time out" from
our problems. They contend that this is accomplished through the ability
of the natural environment to provide "fascination," which is described
as delight in sensory inputs that leaves no time for deep thoughts.29
It is clear that if the environment is not altered by our presence or
our distress, it provides us with an opportunity to re-evaluate the nature
of, and solutions to, our problems. This is at the heart of what Francis
and Cooper Marcus describe as the desire to find "perspective." Thirty
percent of their respondents describe an active effort to "transform their
cognitive process." Kaplan and Talbot (1983) described this as the ability
to see concerns as transient when compared with the enduring character
of the natural world. Gardening may be particularly effective in that the
growth cycle provides ample evidence of change and transience which people
may effectively apply to their own concerns (Wohlwill 1983).
Others however seek to "stay with the feelings," working through their
concerns. Twice as many women and three times as many adolescent males
as adult males seek such immersion. It is interesting to speculate about
whether particular types of environments may be more useful in providing
balance, immersion, escape, or distraction.30
Finally in a suggestive study done by Olds (1989) on memories of trauma
in childhood, adults' spontaneous images of a healing space always
involved nature as the healing agent. Her study suggests that we may need
to revise the way we design and build therapeutic spaces from hospitals
to battered women's shelters. Programs in horticultural therapy have also
been implemented in hospitals throughout the country to help people with
emotional healing as well as motor skills (Relf 1992).
A significant body of research is concerned with the role of nature
as a stress reducer.31 This work tends to reflect the theoretical
tenets of two major schools of psychological thought. One suggests that
nature serves to reduce our stress by reducing physiological arousal (Barnes
1994), and the alternate perspective suggests that stress results from
our efforts to deal with "information overload" (Kaplan and Kaplan, 1989).
Nature is seen as an effective stress reducer because it provides a kind
of "cognitive quiet," necessitating fewer decisions based on external demands.
The Kaplans suggest that nature provides innately interesting stimulation
that allows us to rest from the "directed attention" needed for the pursuit
of daily activities.32 In contrast, Ulrich's studies document
the physiological benefits in reducing arousal through natural environment
access. There can be little question that a reduction in heart rate and
increase in the frequency of alpha waves is accompanied by psychological
benefits. Ulrich wrote:
"If an observer's state prior to a visual encounter is one of stress
and excessive arousal, an attractive natural view might elicit feelings
of pleasantness, hold interest and block or reduce stressful thoughts,
and therefore foster psychophysiological restoration...Even the passive
intellectual contemplation of a natural setting can be quite adaptive if
it provides a breather from stress...or gives the observer a sense of competence
in terms of mental prowess or efficacy, thereby contributing to a sense
of identity (1983, p. 95)."
As already noted, in his study of college students who had just completed
an exam, there were significant reductions in arousal and sadness among
the group which viewed slides of vegetated landscapes when compared with
those viewing urban landscapes devoid of vegetation (Ulrich 1979). If Ulrich
can demonstrate such an effect when using simple color slides, the effect
of actual exposure promises to be greater although methodological difficulties
have precluded such a test to date.33
One of the most compelling areas of research has involved the changes
in self-concept of people engaged in wilderness experiences, and is based
in the successes of Outward Bound and the National Outdoor Leadership School
programs. Inspired by their efforts to teach social responsibility and
self-esteem, hundreds of other programs have been established to provide
"personal growth, therapy, education, and leadership development" (Hendee,
N.D.) to "youth-at-risk," disadvantaged urban teens, the developmentally
disabled, prisoners and others.
Some of the most visible work was done by the Kaplans and other researchers
at the University of Michigan, and taught orienteering and survival skills,
provided a solo experience of varying difficulty and length, followed by
a non-guided group trek out of the woods. Their analysis of the data from
journals and pre- and post-program questionnaires, pointed to "enduring
changes in self-esteem" and "self-concept," defined as more realism with
respect to their own strengths and weaknesses, greater self-sufficiency,
greater concern for other people, and a more positive view of themselves
(Kaplan, Kaplan 1989); (Kaplan, Talbot 1983). While it is possible that
these changes are a result of factors other than exposure to the wilderness,
such as the instruction in social interaction techniques and skill training,
there is little question that participants benefit from being exposed to
an environment that casts their accustomed coping strategies into question.
In fact, Hendee has suggested that a "heightened self-awareness and sense
of personal control--a 'centering' effect--seems to emerge from the break
with prevailing culture in a back to basics contact with the environment
(Hendee, N.D., 3)."
The most powerful evidence of the relationship between open space and
self-concept may however be in the application of the principles developed
by Outward Bound to the school system. Using ten principles devised from
environmental education programs in the wilderness, Expeditionary Learning
Outward Bound has developed a curriculum for training teachers in team
building, character development and learning skills.34 The assumption
is that implementation of these principles and an exposure to the natural
environment will lead to personal transformation and the changing of the
educational culture. The resulting program has been awarded a five-year
grant by the New American Schools Development Corporation and has been
recognized by both the Bush and Clinton Administrations (Black, 1995).
This paper ends as it began, in the value of a walk in the woods to
our sense of self. It can take no position on the larger debates about
whether ultimately we are subservient to the omnipotence and sacred qualities
of nature, or whether we are its stewards. It is clear however that we
are in a symbiotic relationship with the environment we live in-- that
in altering nature and open space, we alter the patterns of our lives.
It is also clear that we carry within us the images of the places we value.
The test may be whether we can or should create those images for private
or public good. With each private garden that we nurture, we remove another
piece of land from the "Commonweal." We must ask whether our very love
of the view from the kitchen window is a threat to it, as we continue to
develop housing in rural and suburban areas, and even as we privatize open
spaces in urban areas. It will ultimately be more difficult to determine
that we want to hold the land in common--for the benefit of the community
and the society. It will be more difficult to accept the idea that our
society will be measured not in the functional aspects of its use,
but in its concern for the symbolic. The Kaplans (1989) wrote, "Viewed
as an amenity, nature may be readily replaced by some greater technological
achievement. Viewed as an essential bond between human and other living
things, the natural environment has no substitutes (204)."
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1. Mircea Eliade wrote (1959) about sacred spaces in his classic book,
The Sacred and Profane. He wrote, "The first possible definition
of the sacred is that it is the opposite of the profane...Man
becomes aware of the sacred because it manifests itself, shows itself,
as something wholly different from the profane. To designate the act
of manifestation of the sacred, we have proposed the term hierophany...
From the most elementary hierophany--e.g., manifestation of the
sacred in some ordinary object, a stone or a tree-to the supreme hierophany
... we are confronted by the same mysterious act-the manifestation of something
of a wholly different order, a reality that does not belong to our world,
in objects that are an integral part of our natural 'profane' world...
The sacred tree, the sacred stone are not adored as stone or tree; they
are worshiped precisely because they are hierophanies, because they
show something that is no longer stone or tree but the sacred...(10,12.)
2. Stankey (1989) wrote, "the period following World War II saw rapid
growth in the recreational use of forests and parks. A robust economy set
the stage for seemingly unlimited future expansion. A framework was needed
within which decisions could be made as to how much use could occur before
the very qualities sought by visitors were lost....The carrying capacity
concept was broadened to include social concerns. However, the addition
of a social component also implied that the determination of carrying capacity
involved more than a straightforward technical assessment; setting such
a limit implicitly invoked a sociopolitical process as well as a biophysical
3. Catton's (1983) analysis of the Grand Canyon is valuable, albeit
in disagreement with the premise of this paper. He suggested that the attempt
to develop such a concept as psychological carrying capacity is problematic
if not impossible, because it neglects important aspects of ecological
degradation and temporal factors and emphasizes instead social interactions
among users. He suggested that "...environmental psychologists...have focused
their attention not upon costs to the environment from human load imposed
on it but rather upon costs to people from adapting to particular
environmental circumstances (289)." It is just this argument that is being
made here. We can not plan places in the absence of people, and benefits
and costs to both landscape and human values must be assessed if we are
to be successful.
4. John Hendee's wilderness program, sponsored by the University of
Idaho, has included a range of participants from those familiar with the
woods to those who have little cultural experience with this kind of nature
based self-reliance program. He suggests that the program's success across
this broad range is evidence that nature experience has a general, perhaps
universal appeal (personal communication, July 1995.)
5. According to one 1980 estimate, visits to publicly administered outdoor-recreation
areas in the US increased about 5 percent annually during the prior several
decades. Further, the "use of many back country areas and areas designated
as wilderness has shown an average annual rate increase of about 20 percent
and the use of wild rivers has increased even faster during the past decade"
(USDA Forest Service 1980, as cited in Driver, Brown 1980). Current projections
vary with some experts projecting an increase as the children of baby boomers
start using natural areas on their own, while others project a decrease
as the baby boomers begin to have more of the physical limitations associated
6. In 1983, Kornblum and Williams estimated the number of person-visits
to New York's Central Park at 13 million annually, not including special
events, and the number of visitors in excess of 3 million annually. The
recent screening of Disney's Pocahontas is estimated to have attracted
in excess of 70,000 to the Great Lawn alone (Marianne Cramer, personal
communication, July 1995).
7. A national survey found that 46 percent of those surveyed agreed
with the statement that "the natural world is essential to my well-being"
(Butterfield & Relf, 1992.)
8. According to Carmody, gardening is one of the fastest growing recreational
categories of the 1990s, constituting a $22 billion business.
9. This dialectical view of city and nature reflects historical and
cultural attitudes that have sometimes favored cities as the seat of civilization
surrounded by a perilous wilderness, while other times or cultures have
viewed the natural environment as sacred and the city as profane (Eliade
1959). The latter philosophical view was echoed in the Wilderness Act of
1964 that saw wilderness as "land unmodified by human action...[with] no
permanent inhabitants, no possibility for motorized travel, and...spacious
enough so that a traveler crossing it by foot or horse must have the experience
of sleeping out-of-doors. It is an area 'where the earth and its community
of life are untrammeled by man, and man himself is a visitor who does not
remain (Graber 1976, 8-9)." Ironically, Graber points out that, "the wilderness
ethic is an urban phenomenon reflecting both the educated city dweller's
cultivated sensibility and his lack of contact with the means of rural
livelihood. For this reason political support for wilderness preservation
often increases with distance from the potential park site (115)."
10. One such approach was taken by New Jersey's Pinelands Commission
which applied a regional model to planning the 1.1-million acre National
Pinelands Reserve by designating land-use zones based on stages of development
and ecological criteria (New Jersey Pinelands Comprehensive Management
Plan 1980; Rubinstein 1983).
11. Hendee, as cited in L. Graber 1976.
12. See R. Kaplan and S. Kaplan 1983; S. Kaplan 1992; S. Kaplan and
J. Talbot 1983; and R. Ulrich 1983.
13. There are even some examples of planning landscapes with the help
of non-users. The Nature Conservancy and other organizations have effectively
raised money to preserve landscapes that will never be used by subscribers,
through programs which provide supporters with a temporary "title" to an
acre of land in an endangered eco-zone.
14. Daniel and Vining call this the Formal Aesthetic Model and
suggest that it assumes that aesthetics are determined by the "abstract
features of the environment and the formal character of the landscape."
Proponents of this approach to environmental analysis define landscapes
in terms of the interrelationships between forms, lines, textures, and
colors. The variety, harmony, unity and contrast that result are supposed
to be archetypal and universal (Daniel, Vining 1983).
15. According to Westover, recreational crowding is based in part on
the experience of a given level of density as either positive or negative,
depending on an individuals's goals and expectations.
16. It should be noted that there is a spiritual or cosmological component
to such programs, although they are based in large part in accomplishment
of personal skills and objectives. Katrina Abbott (in press) writes of
an intern on an Outward Bound course who retrieves a discarded orange peel
saying, "This young man had internalized an environmental ethic and a sense
of responsibility for the natural world during his prior Outward Bound
experience, and this quality found expression in action. He intuitively
appreciated the value of the natural world and provided his peers with
a role model of earth stewardship(1)."
17. There was extensive discussion in the late 1980s about the state
of ecological succession of National Parks such as Yellowstone. Debate
centered on whether forest fires should be stopped or allowed to burn themselves
out. Such debate represents an ongoing dilemma about the appropriate level
of ecological succession we choose to maintain.
18. A report by the USDA describes water quality as the chief concern
among participants in a survey of the use of the Chicago River Corridor
(Gobster & Westphal 1995).
19. Lewis (1979) has suggested that there are a number of axioms for
"reading" the landscape including the "axiom of landscape as clue to culture,"
which suggests that "the man-made landscape [sic]--the ordinary
run-of-the-mill things that humans have created and put upon the earth--provides
strong evidence of the kind of people we are, and were, and are in process
of becoming." He also discusses the role of technology in making the landscape
what it is, using the green lawn as an example.
20. Ulrich uses the term "wakeful relaxation" to describe the person's
state when experiencing an increase in alpha waves, a measure that he has
described as "a valid measure of arousal, [correlated]...with states of
consciousness and alertness."
21. While this use of vicarious stimuli to represent the natural environment
may seem questionable, Ulrich maintains that it is an appropriate method,
given (1) the human dependence on visual stimuli over all others; (2) the
existence of over 100 other studies corroborating the results; (3) the
extant self-report data which confirms the physiological findings; and
(4) the desire to avoid confounding variables such as exercise, potential
weather or climate effects and other non-landscape contextual variables.
In so doing they have probably taken a conservative view of the impacts
of nature, in that the effect, if anything would be stronger in the "real
world," where all the other senses would contribute to the effect.
22. See also Verderber, 1986.
23. As cited in Ulrich, 1992.
24. Activities were defined as those that involve a change from daily
routine, catch their interest very easily, are not boring, and are enjoyable
or pleasing. Specific selected activities included gardening, taking a
walk in a backyard, garden or park, observing, sitting or eating outdoors,
feeding birds or squirrels, playing with or caring for pets, and collecting
natural things as well as other activities done for "pure enjoyment," such
as doing artwork, playing a musical instrument, or craft work, watching
or playing with children, attending a concert, going to church functions,
exploring auctions, garage sales, shops; listening to music or reading,
among many others.
25. It is important to note that many people seek to be separated from
others, but not isolated. The issues of crime and violence make many people
seek places where they can see and be seen but where they can control the
degree of interaction they experience. Women in particular, express concerns
over their safety in the outdoors, and this needs to be accounted for in
the planning of any open space (Barnes, 1994).
26. It is not clear whether the same people are using the park on both
the weekend and weekdays albeit in different ways, or whether there are
fundamental motivational or demographic differences in the users themselves.
27. An argument could also be made that the use of Central Park is distinct
and does not reflect either other urban parks or other types of open space.
It should however be noted that the "social" character of natural environment
use has been echoed in other studies of wilderness and urban and suburban
parks (Driver, Rosenthal, & Peterson, 1978; Graber, 1976; Hendee, 1978;
28. As cited in C. Francis and C. Cooper Marcus, 1991, 182.
29. The Kaplans' use of the term "fascination" is a parallel to William
James' notion of "involuntary attention." It is described as people's unconscious
response to things that they find inherently fascinating despite mental
fatigue of the capacity for "voluntary attention," which is needed for
the activities of daily life.
30. Certainly those engaging in wilderness programming for youth at-risk
have cultivated the use of solo experiences in isolated environments in
an effort to force people to rely on their own skills, paralleling Francis'
31. In 1992, Ulrich noted in passing that there are more than a hundred
wilderness studies which claim that "psychological restoration through
stress reduction is one of the most important verbally expressed, perceived
32. The Kaplans actually propose several categories in addition to the
ability to rest from directed attention including the opportunity to "clear
the head," to engage in the "reflective mode" of attending to sunsets,
scenery, etc., and to reflect on one's life, priorities and possibilities,
actions and goals.
33. This point is echoed by Olds (1989) who suggested that if imagining
the healing power of spaces is as beneficial as her study shows, the implications
for medical recovery in natural environments are still greater.
34. The program's ten principles include the primacy of self-discovery,
the having of wonderful ideas, the responsibility for learning, intimacy
and caring, success and failure, collaboration and competition, diversity
and inclusiveness, a respectful relationship with the natural world, solitude
and reflection, and service and compassion.
People need and crave accessibility to open spaces. In a range of +10
to -10, most tree lined streets, manicured urban parks, and views of landscaped
settings receive the highest positive scores based on hundreds of thousands
of participants who have taken the Visual Preference Survey (VPS)TM
administered by A. Nelessen Associates over the past twelve years.
(The Visual Preference Survey and VPS are trademarks of A. Nelessen Associates,
Inc. Princeton, New Jersey.) Consistently high values not only indicate
a basic love for both the natural unbuilt and urban landscaped settings,
but also expresses a fundamental psychological need. Please refer to Visions
for an American Dream (Nelessen, 1994; American Planning Association)
for detailed examples of some of these concepts, including several hundred
photographs and drawings.
Open spaces are desired by private individuals and public entities.
As a private property possession, ownership allows individual horticultural
expression and enhances economic and visual value. To many people it is
of great therapeutic value to work in a yard or garden. "Owning" a view
is a visual pleasure of worth. Public open spaces are required to enhance
the positive sense of well being and to provide a range of recreational
opportunities and civic parks not able to be owned or maintained by most
individuals. Young children are fascinated by the natural environment.
They are best accommodated as young children in private spaces but some
require more public experiences in semi-public, neighborhood, and community
open spaces. Growing teens need recreations fields as well as parks and
public gathering places. Adults require recreation spaces as well as the
physiological need for nature to balance prolonged stress, particularly
when they have prolonged exposure to the negative built environment. Older
adults are some of the most avid walkers, realizing that it is an excellent
cardiovascular exercise. The best possible walking paths for this group
are along, and in, the semi public, neighborhood, and community open spaces.
All appreciate flowers, water features, and places to sit comfortably.
Larger open spaces are required regionally to create edges to built-up
areas and to provide more hardy recreation opportunities. Hunters, mountain
bikers, canoeists, bird watchers, and others love the natural environment;
they relish being in it and the physical conquest is part of the challenge
and the delight.
Visual and physical access to the basic types of open space is critical
for everyone, but particularly for those growing up in the "urban hardscape."
If their experiences of open space and nature are the treeless streets,
paved playgrounds, and unkempt parks and back yards, their appreciation
of all types of nature is stronger. A recent VPSTM in North
Philadelphia and St. Louis revealed that images of small infill parks,
tree lined streets, and larger open spaces received high desire and acceptability
scores. If their economic conditions allow, many leave the urban setting
for a new life in suburbia, planting trees, bushes, flowers, and, perhaps,
a vegetable garden in their private lots. What about those who can not
leave? Don't they also have the right to positive open spaces?
Individuals raised in places where a range of open spaces were within
a rational and reasonable proximity, such as in older villages or small
towns, might take it for granted, but generally they will be supporters
of local, community, regional, and global open space preservation and maintenance.
Many raised on the edge lot suburbia will succumb to the conditioning that
portrays American success an ever larger house with large property ownership.
Children then raised in this large lot environment, without exposure to
a range of appropriate and desirable balance of open spaces, become conditioned
and private open space becomes the common realm. The higher density older
urban environments clearly have the most pressing need for open spaces.
Many of the same standards, such as street trees and neighborhood parks,
that can be applied to suburban places should also be applied to urban
Providing the appropriate balance of open space into our continually
urbanized existence is one of the great challenges for planners, politicians,
and environmental groups. We must rethink the importance of a balanced
open space system. All the VPSTM surveys indicate that it is
highly valued and critically desired. Every positively perceived open space
can also act to maintain sustainability between plants, animals, and people.
A proper system of open spaces provides a range of sensory and emotional
pleasures; to some it is sacred, to others it is awe, to some it is fear.
But whatever the emotion, these open spaces provide the basic connection
to ecology, to earth, to a more primitive instinct, and, certainly, to
a greater sense of being.
This article will describe the ideal urban open spaces to be incorporated
into the street, block, neighborhood, and town, and suggest why these must
form a continuous network of greenery accessible and available to all people
and animals. It will insist that open space is not only an important internal
component of the traditional community, but that it also plays a critical
role in the defining community and neighborhood types through the open
space treatment of the edges. It will recommend that if there is to be
a real sense of street, neighborhood, or town, the inclusion of more than
private open space is critical and that there must be a balance between
private and public open space. It will suggest various ways that open space
can be incorporated into new development or retrofitted into existing developed
areas. It will argue the economic and psychological benefits. It will recommend
that the balance between private and public open space is crucial to creating
more sustainable communities and that incorporating the appropriate open
space must be a basic goal of all municipal, state, and national planning.
The VPSTM responses of suburban residents indicate less appreciation
for large natural public land holdings beyond that which can be seen or
experienced from the viewshed (what you see from a point) of the road,
highway, or path. The views of the open spaces, for instance, from a bridge
which crosses a stream or from a road at the edge of a pond, are always
positive. However, these spaces typically rate only +1 to +4 by suburban
residents. It is very important in the layout and design of walking paths,
roads, and streets to consider the viewshed. Most suburban residents seem
apprehensive about the "woods," generating what we call the "Little Red
Riding Hood" complex or the fear of the natural landscape, because it is
the habitat of ticks, snakes, poison ivy, etc. Perhaps too many people
lack the understanding or education regarding ecological balance and sustainability.
Too many new suburban residents seldom leave the rear deck, giving the
appearance of fencing themselves off from nature as opposed to inviting
nature in. Every opportunity must be taken in the layout and design of
suburban and urban places to insure the maximum exposure to a full range
of open spaces for the health, welfare, and safety of all individuals and
Many urban streets, higher density residential, and commercial areas
lack adequate positive open spaces or streetscapes. Too many generate values
ranging from 0 to -9. Computer simulations, prepared by A. Nelessen Associates,
which portray streets before and after streetscape inclusions such as street
trees, textured sidewalks, and pedestrian scaled lighting, consistently
generate higher values, suggesting that greater emphasis must be put on
landscaped streets to increase the enjoyment of urban places.
Positive places do more than create a positive sense of being. Positive
places engender positive emotions and behavior. People want to see those
landscapes which give them positive emotions included in where they live,
work, and play. They do not want to see landscape images which have received
positive reactions altered or destroyed. They crave landscapes which give
them a more positive sense of well being. The higher the positive perception,
the greater the concern and the higher the long term dividend of presence
and preservation. A high positive responses can also mean greater desire
for private speculation and acquisition. A beautiful view, rather then
remaining in public domain, becomes desired as a single or multiple private
viewshed. Much positive open space has been destroyed or eliminated in
the name of private suburban development. Design alternatives which include
a wider range of open spaces types could enhance and add value to private
As the appreciation for open spaces grows, demonstrated by more positive
scores in the VPSTM, there is greater opportunity and support
by the community for preservation or inclusion in plans and codes for future
development or redevelopment. When asked if they would be willing to pay
higher taxes for the acquisition and preservation of high valued open spaces,
the majority of participants have said yes.
Despite this fact, we all know that many municipalities are shying away
from requiring a range of open spaces for supposed economic reasons. "Public
open spaces are expensive to maintain and people don't use them enough
to justify the costs," is the pressing justification. Many municipalities
have neither the equipment nor the personnel. It is my feeling that because
of the lack of an appropriate range of open spaces available and accessible
to most residents in the appropriate locations, people have become conditioned
to existing without and therefore it is not a priority nor a sufficient
line item in the budget. The irony is that there always seems to be enough
money for road improvements and maintenance.
It is not the streets, avenues, and boulevards themselves that create
the long term value particularly in residential areas, it is the quality
of the edges and the landscaping. This became obvious after the Dutch Elm
disease hit many older Midwestern cities. The visual quality of the streets
went from a high positive to very negative and the actual value of the
houses dropped. The public streets looked devastated and the parks were
bleak. Most of these communities went into an immediate tree replanting
program and there is now a greater appreciation for "green streets" and
an increased concern about quality of the open spaces. Despite this, new
auto-oriented subdivisions around these cities have missed the lesson and
are still being laid out and landscaped similar to most other suburban
sprawl with a totally inadequate range of open spaces. In most subdivisions
the car must be used to get to most public open spaces.
A review of most zoning codes clearly indicates a complete indifference
to requiring the complete range of open spaces. In this chapter, six basic
types of open space will be recommended for inclusion in both urban and
suburban codes. These include:
Private Open Spaces include yards enclosed by walls or fences which keep and maintain visual privacy.
Semi-Private Open Spaces include open or partially screened and/or enclosed front, side, or rear yards. The semi-private space can be defined by hedges or hard edges but typically there is no demarcation structure on the edge of the lot or yard. The area beyond the edge can been seen and observed. The semi-private viewshed defines the landscape which can be seen from the house windows or the porch. It is the most common of American open spaces.
Semi-Public Open Spaces include the spaces typically in the front
of the house lot. They contain the front yard and the land on the public
right-of-way on which the sidewalks and the area for street tree planting
is located. The semi-public viewshed can be seen from the street or alley,
including the space formed by the facades of the buildings.
Neighborhood Open Spaces include small parks, local street parkways,
boulevard medians, and garden paths which visually link the private spaces
with the neighborhood parks and the larger community open spaces. It includes
all the open spaces which link to all other types. Neighborhood parks are
typically small (less than one acre) and must be located within a maximum
of five minute walk from any resident. Size and facilities of these neighborhood
parks are dependent on the number of units and should be designed to response
to the changing demographics of most neighborhoods.
Community Open Spaces include larger neighborhood parks, public
greens, parkways along larger streets (most fronted by houses), medians
on larger boulevards, bicycles paths, greenways, jogging paths, stream
corridors, cemeteries, and field sport recreational facilities. They essentially
enhance the experience beyond the private, semi-public, and semi-public
domain. Community open spaces are within a five to fifteen minute walk
or a quick bicycle ride from any resident's home. Some of these types of
open spaces will be located on the edges neighborhoods. These must also
be sized to match the population within the service area and be flexible
to accommodating a range of demographics.
Regional Open Spaces include municipal, state, and national parks,
ecological preserves, and woodlands. Stream corridors, seashores, mountain
ranges, bays, and large natural holdings such as the New Jersey Pinelands
and Great Swamp, are examples of public regional open space. Most agricultural
lands and many woodlands are considered regional, but they are privately
held. This open space type should be located on the edges of larger towns
and cities and be accessible by private vehicles, bicycles, and local transit,
and be accessible to those who live and work on their edges. Through new
GIS technology, combined with satellite observations and advanced field
reconnaissance techniques, it has become easier and more obvious which
areas and land qualities should be preserved, placed in private stewardship,
or used as public regional open spaces. It is the appropriate incorporation
into local regional and national plans that is difficult.
How do all these open spaces work together to form a visual and ecological
unity? All open spaces, if properly designed, should form a continuous
ecological network or use pattern encompassing the private open spaces
as well as neighborhood, community, and regional open spaces. They must
be linked, forming a "continuous green" that includes private yards, street
parkways, small neighborhood parks, civic parks and plazas, boulevards,
community recreational parks, green lanes, community greens, ecologically
preserved areas, and regional reserves. This continuous and contiguous
network of open space must be apparent in the plan. It should be a plan
unto itself in the Master Plan of all communities. If all these areas are
colored green, no breaks in the pattern should occur. This green-ness must
be perceptually available from all viewpoints as one moves through the
planned area. I think of places like the Olmstead urban park systems of
Boston, historic Savannah, or the tree-lined street character of Princeton.
Each component of the open space network must contribute to the totality.
Each component of the "continuous green" network must be perceived as positive
to create a truly great place. Without immediate and local provision for
all types of open space the overall perception and livability of any place
is diminished and will not achieve the highest possible value.
Many older urban residential areas, and non-residential areas alike,
have inadequately maintained or, worse, have removed critical open space
features, such as street trees and parkways, for wider roads. Street trees
have grown old and have not been adequately maintained. New tree have not
been planted. Sidewalks have deteriorated. Parks are unkempt.
As the perceptual value has decreased, too many streets and parks are
perceived as havens for crime and drugs, and as unsafe. Some urban areas,
like New Brunswick, New Jersey, have even paved over portions of old cemeteries.
Our design workshops with inner city communities have clearly indicated
that the provision of the complete range of open spaces is high priority.
Small parks visible at critical locations, street trees, and playing fields
are desperately desired. If given a priority, one of the first elements
of a livable community, based on the Visual Preferences of eight Los Angeles
neighborhoods, was to plant trees.
Lacking a complete network of open spaces certainly limits the opportunities
for the individual to interact with them. The less exposure to positive
open spaces, the more neutral or negative will be the individual's response
and corresponding sense of well being. Places perceived as negative tend
to generate negative behavior. The most common emotional response to negative
places is depression. Seeking this positive sense of well being should
be a fundamental goal of all planning. Local, state, and national policy
goals must be to reintroduce all the basic open space which increase the
perceptual value of place. So little investment is required to significantly
increase value and improve the quality of life. Reconnecting the open space
network and insuring that new and redevelopment places have a complete
range of open spaces and an improved quality of life must become the fundamental
goal of all urban and suburban places. The environmental price tag of not
building it is too high in the long run.
It is clear is that both urban and suburban communities are getting
short changed. More and more open space in new development, whether urban
infill or greenfields suburban, is only in the form of private yards. Let's
look first at suburbia. The suburban subdivisions of cul-de-sac pods and
equally sized single family lots with homes of equal square footage with
two, three, or four exposed garage doors are burgeoning. There are no street
trees and, typically, no sidewalks. Worse, there's no place to walk to.
In very low density zones, 3 - 15 acres per dwelling unit, if the design
standards of roads and country lanes are winding and narrow, the perceived
values of landscaped streets are high. In low density areas, ½ to
3 acres per unit, the roads are still too wide (24 - 36 feet) with cul-de-sacs
designed to some inappropriate fire truck standard (80 - 100 feet in diameter.)
This typical system of roads does not incorporate the features which would
contribute to a positive, complete open space network. Sidewalks, if they
are provided, are incorrectly sized. They are located on one side of the
road and, in too many cases, are immediately adjacent to the roads employing
a integrated curb-sidewalk, eliminating the possibility of the parkway.
I recently led a tour of Dutch planners around central New Jersey. They
were appalled by the conditions and character of our older cities and residential
areas, but they were most appalled by the large lot subdivisions. "Where
are the community parks and walking paths?," they asked. They also commented
negatively on the number of garage doors. After thinking about these comments,
I managed to explain that the size of the house, the size of the lot, and
particularly the number of garage doors are measures of success in America.
Americans have been programmed and, in too many cases, are required to
drive to everywhere and everyplace. The nouveau-rich suburban American
programming response is "the larger the lot and the greater the number
of exposed garage doors, the greater the image of success." As far as open
space is concerned, each home owner appears to be only concerned with the
size on their own lot. The Dutch found the treeless green fields outside
each suburban home laughable. With due diligence, I told them, each home
owner will plant trees and shrubs and after fifteen to thirty years they
will mature and the visual impact will not be as negative. "But there will
never be any community parks or walking paths and it will always be isolated
and auto dominated," they retorted. "Is that what people really want or
it is all they can have?" This comment made me think of an early VPSTM
in which we showed a typical large lot subdivision called "Williamsburg"
estates and then the real thing. The real Williamsburg got extremely high
values, the typical large lot got low negative values. The original one
created a great street and incorporated wonderful open space, the new one
only created private open space. There's a powerful lesson here.
Many of these large lot configurations originate from recent zoning
laws. When combined with the media and marketing hype, or what I call the
"J. R. Ewing factor," many have never experienced anything else. The suburban
lot configuration, common in this country since the mid-1920s, is programmed
into much of the American psyche. However, with many of the pre-baby boomers,
and in ever increasing numbers of baby boomers turning 50 (approximately
10,000 per day), there is hope. Many of this generational cohort are finding
these large lots have negative appeal. After all, who wants to spend all
that time cutting grass? Who wants to live isolated lives neatly settled
among the rows of dull lots and, perhaps, even duller people? Also, there
are fewer younger home buyers and many find the price of the old American
dream house and large lot with three car garages too expensive. Thus alternatives,
like neo-traditionalism, are being generated which not only respond to
this market but also provide the opportunity for inclusion of all the basic
open spaces. But many people still find the home on the large lot appealing.
They have not yet proved that they can achieve the "American Dream." Others,
with enough money, use this desire to become land stewards, owning and
maintaining tracts of land.
Most suburban edge growth is currently zoned according to large lots
standards. Large lot residential land use zoning typically means ½
to greater than 3 acre lots, built on old farm fields or existing woodlands.
Much of this zoning was justified by saying that the "rural" character
will be preserved. Some municipalities went as far as to call large lots
"rural" zoning. Other municipalities justified larger residential lots
as a way of ensuring protection from potential ground water pollution caused
by septic leaching. Larger lot sprawl may be one of the largest tragedies
of modern American planning; the visual impact of these "pimples on the
landscape," as my younger son calls them, denigrate the natural character
of the land and stifle the opportunity for balancing open spaces which
contribute immeasurable to creating a sense of community. Even with "envelope
zoning," which allows flexibility in situating the house, the positive
visual open space characters are seldom enhanced; the houses lack an organic
relationship with the natural features of the land and no public open space
is provided. Development based on this type of zoning is occurring every
day all over the country. Most suburban land is master planned, zoned,
or approved for future subdivisions of similar lot layouts, all of which
exclude four of the basic open space types. What is more, most residential
subdivisions are scattered or "leapfrogged" and seldom linked to other
subdivisions, except on overloaded collectors or arterials. They are planned
to keep the American people auto-dependant. They are designed to clearly
separate social economic groups from one another. Large lots in one place,
medium sized lots in another, and smaller ones in a third. Rarely are neighborhoods
or community open spaces incorporated to help bring the diverse neighborhoods
In most newer residential subdivisions, one must drive to access any
local open spaces, as well as shops, jobs, and entertainment. The road
layout is the first consideration of the plan. What becomes apparent is
the lack of consideration for community open spaces. There is, additionally,
no sense of civic place or public realms in most suburban plans. Many municipalities
complain about providing any type of open space while they continue to
build and maintain more and more roads and highways. If they designed subdivisions
correctly, they could reduce the number and length of trips and, thereby,
the impact on the roads. Then they might actually be able to support several
of the basic open space types and elements of basic civic realms. It is
an extremely short-sighted investment strategy not to develop a higher
quality of life and a sense of pride and fellowship by providing their
fundamental open spaces.
Most suburban commercial standards are even more appalling. Seldom located
within walking distance of housing, usually set too far back from the rights-of-way,
and fronted by parking lots, they fail to relate to the street in a positive
manner. Often pedestrian linkages and access are neglected. Most landscaping
is quite pitiful and is rated neutral to negative by most VPSTM
participants. How many parking lots have you seen with little or no landscaping,
or that which exists is insignificant? Again, the VPSTM has
indicated that you can "put the park back into the parking lot by
requiring one tree for every four parking spaces. This should be a requirement,
not an option, because all landscaped parking lots receive more positive
ratings. Signing is designed for the car, not the pedestrian. Open space,
if it exists, is in the detention facility, and, in too many cases, it
is placed in the wrong location between the road and the parking lot. The
most negative ratings in commercial zones occur in the area where the residential
areas (typically higher density) and the shopping strip mall interface.
Lined with a stockade fence or, worse, with chain link fence and barbed
wire, the pedestrian connection is prohibited. How may times have you seen
what I call "cow paths" created by people walking next to roads leading
from new multi-family complexes to the strip mall because they cannot access
it from the project? They are prevented by plan! Planners and developers
obviously do not understand the relationship between the walking pedestrian
and one of the primary features of the open space network. Perhaps they
Both residential and commercial zoning does not respond to the obvious
and historically proven relationship between residential, commercial, civic,
and recreational uses. VPSTM community questionnaires reveal
that most people would walk to any and all of these if they were within
a pleasant and safe five minute walk along a positive pedestrian realm.
The most positive pedestrian realms are contained within semi-public, neighborhood,
and community open spaces.
The combination of pro-sprawl programming and low density residential
and strip mall zoning makes public open space a lower planning priority.
More open space is being privatized. Larger yards are fee simple. Certain
suburban municipalities do not even allow street trees in the public right-of-way.
Trees are allowed only in the private front yards to avoid the cost of
An expensive house on a large lot is encouraged in order to balance
the fiscal impacts of sprawl. Large lots with expensive houses and a small
number of public school children minimize the need for other non-residential
ratables. The more expensive the house and the fewer the children, the
greater the possibility that there will be a positive fiscal impact and
that they will "pay" their own way. But the greater the number of larger
lots, the greater the need for more land and more roads, thus creating
even more sprawl costing even more to the municipality.
Many comprehensive plans do not have any open space elements, thus diminishing
the importance of, or eliminating completely, the range of open spaces;
recommending expensive large lot housing ratables with only private open
space. It clearly reflects the lack of appreciation of the positive benefits
of community open space design, or the positive fiscal, ecological, and
psychological impacts of good open space planning.
Most PUD's, it can be said, incorporate limited neighborhood and community
open spaces, but lack adequate private, public, and semi-public open spaces
in and around most multi-family units. They do a good job of providing
open space facilities like the basic swimming pool and tennis courts. They
also preserve most woodlands and stream corridors. PUD's typically set
aside up to 20 percent of the land for open space. The majority of this
land usually is undevelopable woodlands or stream corridors. Some planned
communities include golf courses. These are the exceptions. In most PUD's
the swimming pools and tennis courts are accessible by walking, yet many
residents still use their cars. Most residents in new planned developments,
I suspect, still drive to go to a health club where they can walk, run,
or ride a bicycle for exercise. People will take a car if the facility
is beyond a reasonable walking distance of 1,500 feet. They have no choice
but to drive if there are no sidewalks or paths to walk on or where the
open spaces are not accessible by foot. A complete range of open space
facilities accessible at the appropriate location must be mandated in all
types of suburban developments including PUD's. Provision of these standards
are equally critical in urban redevelopment areas to achieve a reasonable
level of livability.
The lack of tax base provides a stated reason why many public open spaces
lack adequate maintenance. Grants and private support programs are required
for the maintenance of parks and parkways. You see signs all over the country
indicating the names of the clubs and companies that are maintaining existing
parks and roadway edges. This is a poignant indication of how important
people think these locations are. It is therefore ironic that trees are
not allowed on many state roads which are improved (widened) as they pass
through municipalities; they are considered "obstacles." It is not just
municipalities which discourage greenery. Many State Highway Departments
are notorious for their lack of sensitivity to the important component
of livability. Here would be a way of using our gas taxes to provide the
opportunity for appropriate semi-public open space so critical to the creation
of great streets and public realms.
The standards start with recommendations or regulations for back or
rear yards, for low density housing units, or for a small balconies or
patios in multiple floor units. The need for private open space, shared
by a family or a household, is critical. For most, this is a rear yard.
The minimum back yard size should be 400 square feet, or 20 by 20 (Lynch),
enough to create a small outdoor room. A deck or porch is typically in
these rear yards. It could also contain a small outdoor eating area, flower
garden, or decorative pond. Private rear yards are often totally or partially
enclosed by fences or landscaping. When the garage is located in the rear
yard, particularly off an alley, a more positive outdoor room can be designed
with the garage wall providing the wall or walls to this outside room.
Attention must be given to provide adequate sun light. A beautiful, well
designed garden framed by garden walls can be very positive, psychologically
rewarding, and equally inspiring, provoking a sense of positive feelings
and natural wholeness.
The yard and the open spaces beyond the yard are then incorporated as
a viewshed. Nature may be observed and appreciated at a distance. The greater
view value is derived from large lawns, parks, bodies of water, or fields
adjacent to the buildings with balconies or raised patios. The fact that
the VPSTM value increases by having these with open spaces adjacent
suggests the great need for sensitive siting of all buildings to maximize
the visual access to these community or regional open spaces.
In the more traditional side yard "Charleston type" house, two edges
of the house (one side and the front edge of the house) are located on
or near the property line. The remaining side yard then functions as both
rear yard and front yard. This is a truly exceptional use of the side yard
and provides excellent opportunities for innovative designs as witnessed
in a new and modern form in Seaside, Florida and Harbortown, Tennessee.
Traditionally this space is occupied by grasses, shrubs and flowers,
a porch or stoop, and front door access from the sidewalk. The VPSTM
ratings indicate that ideally this space functions best when the ground
floor is raised above sidewalk level, and the yard is defined by a low
front picket fence, edge, or wall. Raising the ground floor above the level
of the sidewalk (2 - 4 feet) is even more critical for multi-family and
lower income housing. Additionally, the semi-public realm must be defined
with a fence, hedge, or low wall. This dramatically improves the sense
of safety and security. Visitors must walk through a fence, through the
yard space, up the steps, and across the porch before reaching the living
space. Inside the living space, one can better observe the street and anyone
arriving, while preserving visual privacy from the sidewalk. The importance
of this low fenced semi-public area was particularly noticeable in several
low income housing areas. The living units with a fence and a porch were
more likely to be in better condition. Flowers were planted in the front
yard and pride of ownership was evident. Most units without it were deteriorated
with no landscaped features. The treatment of this space is critical to
the function and safety of the residents as well as the contribution to
the open space character of the community.
Most suburban regulations are still reflecting the Omsteadian/Scott
programming which dictates that American suburbs should have a consistent
rolling front lawn with no interruption from one yard to the next. It is
counter to traditional high density multi-family neighborhoods. It is clearly
suburban, and is certainly inappropriate in multi-family and mixed income
neighborhoods. Rolling lawns should be confined to very large lot subdivisions
where there is sufficient room for large side yards and deep front yards.
As lots begin to be larger, the fence begins to appear again, defining
one estate, farm, or ranch from each other.
Creating a traditional community requires a range of open spaces, housing
types and lots, and more traditional treatment of front yards and streets.
The front and rear yards are traditionally smaller, balanced with more
neighborhood community open spaces. Houses with front porches and picket
fences typically rate higher than those without. Most higher rated streets
have relatively narrow front yard widths and depths. Some of the most positive
places have smaller front yards for the majority of the houses, larger
front yards for civic and institutional uses, along with "big house" fronting
on more prestigious avenues or boulevards. These simple dimensions can
be standardized but allow flexibility and visual interest by employing
the "built to line." This line sets a mandatory line on which all buildings
along a certain type of street must be built. This line ensures spatial
continuity and proper street proportions. Certain flexibility is recommended.
For instance, a build to line of 15 feet is specified with a 2 foot modulation.
This means that the builder can create 2 foot modulations in the location
of the front facade wall from one building to the next or simply maintain
the standard build to line.
Current subdivision regulations engender building "products" that are
on equal sized lots with consistent and uniform large setbacks. Larger
expensive lots are next to each other with equal sized houses that have
decks and three or four car garages. To create a traditional neighborhood,
village, or hamlet the yards and sizes of the houses must vary. In over
600 "hands-on" model building workshops I have conducted, where participants
are asked to design an ideal neighborhood with 1" equals 20' scaled models,
analysis of the final site plans reveals that seldom are two adjacent lots
similar in width and, further, that the front yards are small (5 to 20
feet), typically forming a continuous edge of the street or boulevard.
Most define the front yard with a low fence or hedge next to a sidewalk.
With the inclusion of the picket fence or hedge, the front yard becomes
more urbane and pedestrian friendly.
Once you leave the private lot, the next open space hierarchy is the
semi-public open space, critical because it extends the park-like presence
to every house and business. The semi-public space in front of your house,
combined with the location and character of the facade of the buildings,
is one of the most important public spaces and a primary determinant of
the image of a place. Streets are our most important public spaces. The
character of the street edge can have an enormous impact on the visual
and spatial quality and economic value. This semi-public space contains
the front yards, the sidewalk, the parkway with street trees, pedestrian
scaled lighting, and, possibly, parallel parking. People use these semi-public
open space to walk, jog, and ride their bikes. They use it because it is
pleasant and because it is functional. It is a connector between houses
and various non-residential uses including retail, civic, and recreational.
It enhances the structure of a place while providing a balance between
the built and natural environment. The community park network starts on
the parkway in front of your house.
The pedestrian realm is the specific name given to a portion of the
semi-public realm formed by the edge of the front yards, the sidewalk,
and the line of trees separating the sidewalk from the moving vehicular
path. The pedestrian realm should connect each home to the web of smaller
parks, green lanes, school sites, and larger municipal parks. Street trees
act as a visual "line of posts," protecting the pedestrian against moving
traffic. Parallel or "head-in" parked cars further help define the pedestrian
realm. Sidewalks inside the pedestrian realm must connect all neighborhood
and community open spaces/parks. These must be close and convenient (within
a 5 - 15 minute walk) to insure that residents will use them. The importance,
or the function, of this semi-public space cannot be overrated.
The parkway as a type of open space must be a required standard in all
subdivisions and redevelopment projects. This can be a local municipal
requirement. It requires the planner to see the edges of the street as
a component in the web of functional open spaces.
The parkway in residential areas ranges in width from 3 to 4 feet, expanding
to 12 to 20 feet depending on the desired character of the street and the
amount of exposed earth required to grow the trees. Parkways have to be
larger in areas with less rain. Denver is a good example. Here the parkways
must be a minimum of seven feet wide.
A tree lined grassed parkway is appropriate for most residential land
uses. Trees should be closely spaced and planted at a minimum three to
four inch caliper. The recommended spacing is between 18 to 25 feet in
residential areas. The ground level of the parkway is typically maintained
privately although it is within the public right- of-way. Most residents
cut the grass and rake the leaves, while some plant flowers. Location and
tree types must be more flexible in commercial areas. Plant one tree for
every 30 feet, but avoid planting trees in locations where they will obstruct
the views into store windows. In commercial areas and high density residential
areas, there is no ground parkway, parking is continuous, and the trees
are planted in holes cut into the pavement. Merchants normally clean the
sidewalk in front of their stores. If this becomes a problem and lack of
maintenance is visible, a service organization must be initiated to insure
maintenance and repair. In most cases, the municipality is responsible
for removing the leaves, pruning and replanting the trees, and maintaining
Eliminating the parkway in residential neighborhoods is only slightly
better than providing no sidewalks. This strip of concrete next to the
curb is called an "integrated sidewalk." It typically rates negative, or
very low positive, in all the VPSTM scoring. It is one of the
classic mistakes which diminishes the pedestrian character of a street,
and far worse, it makes it impossible to build parkways, a key component
of the pedestrian realm in the semi-public open space.
Too many suburban subdivisions fail to incorporate sidewalks which create
adequate functional connections. Even worse, you see roads with sidewalks
on one side with a 2 or 3 foot "planting strip" that has no trees planted
in it. This is a tremendous loss of potential value. Sidewalks in commercial
or multi-family areas should be 9 to 12 feet wide. These should maximize
the amount of texture and interest.
The combination of the facade wall of the buildings and the street trees
determine the proportions of the street. The proportion of the street space,
combined with the correct provision of street trees, can "make or break
it." The width of the space should be in proportion to the height of the
facade. The VPSTM indicates that the ideal proportion of a streets
is 1 to 1, that is, one measure high to one equal measure wide between
facades. This proportion remains positive provided it does not exceed 1
high to 4 wide. Higher buildings should be located next to wider streets
to maintain or achieve these proportions. If proportions must be wider,
then extensive tall street planting must be considered to frame the street
back to the 1 to 4 or smaller proportion. Wider than this 1 to 4 portion
will lead to loss of visual and economic value.
All streets, avenues, and boulevards must connect to the next public
community open space hierarchy--the neighborhood parks These small parks
should be within 500 to 1,000 feet of most homes, or approximately a 3-minute
walk. Sometimes they are called pocket parks, and can be as small as 1/4
acre. These parks, accessible by sidewalk, serve as places for smaller
children to play collectively during the day, older teens at night, and
adults during the evenings or weekends. Small parks are important because
children can progress from playing within the back yard confinement to
the first level of community play space. These can also be places for older
or retired adults to sit, meet, or supervise. The location of this park
type should be clearly visible from the street. In new traditional neighborhoods
such as Mud Island in Memphis, these parks are surrounded by streets with
homes fronting on them. These parks then function as the collective front
yard; the actual front yards on the living units are quite small, ranging
from 6 to 15 feet from the edge of the sidewalk. Both children and adults
use them, and when they are not being used, they are wonderful alone as
a visually accessible open spaces.
Community open spaces are the next level in the open space hierarchy.
Before prescribing the types of community open spaces, I will introduce
the five basic types of communities
The primary community open space is the neighborhood and village green,
which is ideally surrounded by the mixed-use buildings of the commercial
and civic community core. Community greens, parks, and commons are required
more to meet the civic and social needs of residents than to be used as
recreational facilities. They can be used as locations for a community
garden, a gazebo, small performances, the May fairs, or a Christmas tree.
These open spaces serve as formal and informal gathering places, and as
places for civic and social functions. It is additionally used for display,
for neighborhood events, picnics, and parties. It can have decorative elements
such as benches, a gazebo, fountain, small pond, and colorful flower displays.
This is where the neighborhood block parties take place. It should be located
within a maximum of a 5-minute walking range of all residents of the neighborhood
or village. No person should be required to drive to get to the community
open space. It is important to note here that this space is the most common
feature to appear in any model workshop. Next to the parkway on streets,
it is the most common and desired public open space. The need for this
central plaza, common, or park in the center of a community is an intuitive
desire. I say this after observing "hands-on" model community building
workshops all over the country. A commons, plaza, park, or square is desired
for every small community and it functions as the focus of the community.
This has become such a typical feature of these designs that I consider
it basic to the structure of any community plan. It has a minimum size
of about ½ acre, but can be as large as 4 acres, depending on the
number of living units within a 5-minute walk. It is typically surrounded
by one or more civic, institutional, or commercial buildings, along with
residential units in hamlets, villages, and neighborhoods. It should be
surrounded by tree-lined streets on at least three sides. It is more "green"
in small communities and has more hard surface in urban settings. A portion
of this space should be paved and be edged with trees, keeping the center
efficiently open to allow sun exposure. Smaller civic or commercial buildings
should be allowed in this space when it is the center of a town. These
may include a coffee shop and a small branch library. Because this space
is located in the center of the community, it should also be the site of
the neighborhood minibus transit stop. Introducing on-demand neighborhood
minibus transit would be a major incentive to creating walkable streets
with sidewalks and parkways, thereby reinforcing the need for a more intensive
pedestrian-friendly open space network.
Beyond the neighborhood scaled or civic open spaces, there is a need
for major recreational fields within a 5- to 10-minute walk for most residents.
This space is ideally a small neighborhood school site which provides community
playing fields for softball, soccer, and baseball. Unfortunately, there
are conflicting schedules and insurance requirements, thereby requiring
additional community wide open space facilities. It would be ideal if these
open space facilities could be adjacent. They should be accessible by foot
and by bicycle. It is sad to have to transport a child in a car to play
a game of soccer or baseball.
The character of the playing fields is larger and more open. It is more
beautiful if it is edged with trees. The size is dependent on the number
of potential resident users in the neighborhood or town. It should be adjacent
to continuous green ways of open space. In some neighborhoods, a golf course
may be available in addition to other playing fields. Golf courses can
be designed as good open space with sensitivity to the environment. I personally
prefer golf courses that act as a buffer, edging the neighborhood or town,
rather than the "golf course community" where the internal focus of the
subdivision is on the golf course.
All the community open spaces should be sized to fit the population
of the community. The larger the size of the community the greater the
areas desired and required.
Natural greenways through a community are also highly valued. These
spaces are "environmentally constrained" areas that typically cannot, or
should not, be built upon. They contain mature trees, flood plains, or
water bodies. Greenways are ideal for jogging, walking, and bicycle paths.
Paths encourage people to use this open space. If paths are not provided,
only the occasional hunter or prankster will use it. Greenways can act
as natural corridors for animals as well as providing an alternate path
to the existing streets for people. They bring people closer to nature.
Schools can lead species identification and critter observation walks,
and habitat can be maintained. In addition, a greenway can provide edges
between neighborhoods. These corridors should be kept, to the extent possible,
in a natural state. Many of these greenways are natural drainage areas
next to creeks, streams, or wetlands, providing seasonal interest and variety.
Care must be taken to preserve and protect the sensitive ecostructure,
while not ignoring its potential as a public open space.
Open spaces are required on the periphery of every hamlet, village,
neighborhood, town, and city. It has been very effectively demonstrated,
particularly in Oregon, and, on a smaller scale, in Boulder, Colorado,
that it is absolutely required to define regional growth boundary lines.
Every type of community requires a green edge which is community or regional
in scale. Neighborhoods require the narrowest open space edge, while regions
require the largest. These regional scaled open spaces can be owned privately
or by a township, county, state, or the federal government. They may serve
the open space needs of several municipalities. Larger regional open spaces
serve the recreational and ecological needs of a larger regional population.
Much of this regional open space is sensitive ecostructure. The swamps,
estuaries, bays, wetlands, and prime farmlands must be protected and preserved
as regional open space resources. This can be done through public ownership
or through private stewardship. Many of you are probably asking, "What
is private land stewardship?" It is large tracts of regional open space
held by individuals. The historic natural resource analysis and development
suitability models illustrated originally in Design with Nature
(McHarg), have been updated continuously and enhanced by the use of satellite
imagery, GIS mapping techniques, and more intensive field work supplemented
with high tech monitoring and recording devices. This new technology allows
continuous monitoring and enhancement of ground based data; as data accumulates
and technology advances, monitoring becomes easier and more cost effective.
It should be at the heart of open space management in the future.
These large tracts of land receive their greatest visual value by most
people from their image at the edges. It is at the periphery where these
open spaces meet or cross major roads or highways that the public response
is the highest. Viewsheds which enhance that positive image should be specified
in the master plans.
Ownership of large land holdings is becoming known as "land stewardship."
Land stewardship is where one or more individuals live on large tracts
of land, between 15 to 2,000 or more acres, keeping the land in pristine
natural conditions, depending on capacity. Many people "need" to live on
very large tracts of land. These tracts, held in private trust (stewardship),
can contribute positively to regional open spaces. Land stewards purchase
or lease these large tracts of land, and then build only a small number
of houses (1 to 4) while deed restricting and preserving the remainder.
The goal is to minimize of ecological damage. This is to be applauded if
very large tracts are thereby preserved and kept in a natural ecological
equilibrium. Some economic studies indicate that land held in this manner
appreciates significantly (Lynberger). The more progressive environmentalists
are suggesting that all land, even environmentally sensitive land, is developable
provided that minimum levels or zero levels, of ecological damage occur.
The right of stewardship means that land must be continually monitored
using advanced surveillance technology and specific ecological standards
must be set to limit the negative impacts (Breedlove). This new privately
held regional community-type open space is complex and intriguing. It has
great potential for creating new types of open spaces, particularly in
regional green edges to higher density communities.
There are many other techniques that can be incorporated into existing and future designs to ensure a better balance of open space. Transfer of Development Rights (TDR) and Transfer of Development Credits (TDC) are opportunities to achieve the zoning capacity of the land while preserving a vast percentage of the sites for open spaces. This technique provides the opportunity to design traditional communities with green edges. There are real success stories where it has been done correctly. If land is preserved, and the development rights are transferred to somewhere else, the types of communities to be planned and built will be better than sprawl, but there must be a strict set of guidelines which will require a balance between public and private open spaces and recognize the need for definitive edges. There must also be a balance between the smaller and tighter lots with peripheral large lots and land stewardship. Most rural and emerging suburban municipalities have "rural zoning," ranging from 1 to 3 acres. Some have 5, 6, or larger acreage requirements. All of these gross densities can be converted to create small communities, hamlets, or villages; they would develop within a rural setting, while large estates are retained on the periphery. Current legislation passed in New Jersey will now allow transfer of credits from noncontiguous parcels. This should help both the preservation of regional open space and spur the development of more traditional communities.
The New Jersey State Development and Redevelopment Plan calls for redevelopment
of existing underdeveloped areas and the channeling of new developments
into hamlets, villages, and neighborhoods as districts of towns or cities.
The first priority is the redevelopment of the existing urbanized areas.
Development is recommended to be contained within "centers." The "center"
designations assume a greater balance of integrally designed private and
community open spaces. The State Plan also calls for the protection of
several large regional open spaces, including the Pinelands and the Great
Swamp, and designates agricultural and environmentally sensitive lands
for minimum development. This is a tremendous first step in the preservation
of appropriate regional and community open spaces. The leading underdeveloped
open spaces in New Jersey are under development pressure and are considered
cheap because we have subsidized the infrastructure. If developers had
to pay the total cost, it is apparent that this land is the most expensive
to develop. Specific standards and guidelines are required for any and
all future development on these spaces to assure the public that it is
receiving back, for this subsidy, the precious commodity of regional open
The public health and welfare requires that all the forms of open space
be incorporated into our quality of life pattern. They are typically evaluated
in the VPSTM as positive and appropriate. Every survey in which
we asked about the preservation of important scenic and sensitive land,
the response has been that this land should be preserved and protected.
What then is necessary in order to insure that adequate and appropriate
open spaces are included in future master plans for emerging suburban and
rural areas? How do we insure that this same hierarchy of open space is
incorporated into the neighborhood redevelopment plans?
The approach is very different for new development and redevelopment.
The emerging suburban or rural municipality will start with a complete
ecological/natural resource analysis on a GIS overlay system. This analysis
will help to determine where development can occur with the minimum and
maximum impact on the ecostructure. The areas of greatest sensitivity must
be protected first. These can be designated as greenways, or very low density
stewardship areas, which act as peripheral open spaces for hamlets, villages,
or towns. In some instances, the open space could be the separator between
various neighborhoods. The remaining lands can then be designated for growth
and development. The planning and zoning regulations, along with the adopted
municipal street standards, need to be reviewed to insure that they have
the appropriate semi-public spaces, parkways, tree planting regulations,
sidewalks, and the standards for the front hedge or fence. Does the municipal
master plan and development regulations allow or encourage tree-lined streets
and boulevards? Do these streets have the appropriate parkways, medians,
planting programs, and sidewalk size and locations? Does the master plan
have a circulation element which lay out all the future streets and boulevards?
Is there an open space element as part of the master plan? Does the master
plan clearly specify the need and the dimensions for residential parks?
Does it clearly specify the need and the dimensions of the neighborhood
parks, the walking distances, the types of facilities? Is there a specified
need for recreational fields or natural open space linkages? If the answer
to any of these questions is "no," or "I don't know," then either the master
plan is incomplete, or it is the intention of the municipality not to provide
these important open space components.
Most of the same questions can be asked in urban settings. In most urban neighborhoods, there are insufficient neighborhood parks, community parks, and recreational field facilities. In too many, the street trees are planted haphazardly, have deteriorated, or have been removed to expand the streets into arterials or highways. Streams and creeks are piped, or, if they remain, are dirty and littered with old shopping carts, tires, or other debris. In the urban setting it is important to take an inventory of all natural features, trees, underused open spaces, and old streams or creek beds. Both the quantity and the quality of the resources must be inventoried. Then the task of determining the open space needs must be completed. Asking the existing residents what types of recreational facilities and parks they would like could go a long way in determining the needs and desires. Street tree planting and maintenance programs need to be started. A municipal tree nursery may be a good idea. To generate a sense of ownership, I am recommending that a tree be planted and tagged for every person born in the town, or in honor of people who have lived in the town, or for every child who graduated from the high school.
These basic open spaces, the rear and side yards, the semi-public front yards, the parkway on the street, the boulevard, the residential park, the neighborhood park-green, the community commons, the active recreational fields, and the natural greenway are all basic features of a good open space planning. They are the fundamental elements of good community planning. They generate a sense of spiritual and ecological renewal.
Director-- Environmental Projects
Regional Plan Association
At the 1990 Earth Summit in Rio de Janeiro, the residents of this planet
officially embarked on a new era of conservation practices. The Rio Declaration
on Environment and Development, agreed to by almost all the nations of
the world, declared that "environmental protection shall constitute an
integral part of the development process and cannot be considered in isolation.1
Economic prosperity must be pursued not for the benefits of the earth's
present residents alone, but in a manner that leaves for future generations
undiminished natural resources and limited financial obligations.
This new attitude is striking a responsive chord in public and private
leaders throughout the United States. Most people recognize that the attitude
that one must somehow choose between the building the economy or preserving
the environment is a non-starter; people, quite rightly, want to do both,
and we need to create and implement government policies and private business
practices that strive to achieve both.
Learning how to create sustainable businesses that respond to a changing
economy, provide housing and jobs for a growing world population, and meet
other social needs without degrading environmental resources is a great
challenge. But the payoff is not just reflected in meeting conservation
goals. How we create and maintain environmental quality has profound implications
for the prosperity of individuals, businesses and communities.
Preventing pollution costs society far less then end-of-the-pipe treatment
measures or cleaning up environmental damage after it occurs. One clear
example are the efforts of New York City and upstate communities to protect
the city's drinking water through a program of land acquisition, land use
regulations, and investments in sewage treatment plants. This partnership
effort, which will cost about one and a half billion dollars over ten years,
will enable the city to avoid spend four to six billion dollars to build
the world's largest water filtration system and $500 million a year to
operate it once it is built. As a result of this prevention-oriented strategy,
increases in water rates for New York City consumers will be about a tenth
of what they might have been.2 And just as important, the investments
in pollution prevention will provide multiple benefits far beyond the City's
water supply, including new protected parks and open spaces, improved water
quality for upstate residents, fish and wildlife, and improved development
opportunities in the older hamlet centers that will be served by the sewage
Investments in resource efficiency -- like energy-saving insulation,
a double-sided copier, or water-saving appliances -- can cut the long-term
costs of running a business or home. They also help protect the environment,
first by reducing the environmental degradation caused by producing the
energy or delivering raw materials in the first place, and then by reducing
the amount of waste that must be disposed. Regional Plan Association studies
have shown that meeting current state goals to reduce the production of
solid waste in the Tri-State New York/New Jersey/Connecticut metropolitan
area (for example, New Jersey is seeking "no net increase" of waste production)
equals a 3.7 million ton per year decrease in the production of waste by
the year 2015. This is worth about $375 million a year in avoided solid
waste disposal costs for residents, municipalities and businesses. The
environmental benefits, measured in dollars on a per ton basis, is worth
about three times that of the region's recycling programs.3
Investments in environmental quality are also an important way to attract
people and new investments. Technological changes that allowed businesses
and people to locate anywhere means that many more people can choose where
they live and work. Increasingly that choice will depend on environmental
quality and access to green open spaces. A recent survey by Regional Plan
Association found that 43 percent of the residents of the Tri-State Region
who consider lack of greenery and open space a big problem in their community
are also dissatisfied with their quality of life -- a correlation equal
only to people's feeling about a sense of community and crime.4
A key way to translate these concepts of sustainability into more traditional
community planning concerns is through open space conservation and land
use planning. Land is the common denominator for many aspects of our economy
and our environment. Some aspects of our economy, like farming and recreation-based
tourism, are obviously dependent on landscape resources. Our physical well-being
depends on affordable delivery of clean air and water, resources delivered
in part from taking care of the land. Perhaps most critically, how and
where we locate people and jobs on the land determines how much land we
consume and how much energy we use to transport goods and people.
Consider the following inter-related principles as a starting point
for creating land use policies that will help us build sustainable communities:
The most striking and perhaps most easily understood aspect of a sustainable
land use policy is the recognition that land and the natural resources
associated with it are finite resources. Will Rogers said it best: "They
ain't making any more of it."
Sustainability in land use begins with the protection of those open
spaces that are "virgin resources": those places that incorporate landscape
values, like old-growth forests and unusual habitat, that cannot be replicated,
even in a time frame measured in human generations. To provide just one
example, the timber rattlesnake, a state-listed endangered species in New
Jersey, breeds in ancestral den sites that have been continuously occupied
for five to eight thousand years. Because each mature snake strongly imprints
on a specific den site, destruction of the den means the destruction of
the ability of the snake to reproduce at all.5 The loss of a
piece of our biological diversity -- and one that so strongly symbolizes
untamed wilderness -- leaves future generations with an impoverished biota
and a world considerably less interesting then the one we now know.
The conversion of forests, wetlands, and fields to homes and businesses
has both the direct impact of physically removing habitats as well as the
more subtle effect of fragmenting the natural habitat that remains into
smaller, disconnected pieces.6 The developing sciences of conservation
biology and landscape ecology are creating important tools for measuring
the rarity or abundance of various habitat types and for understanding
the relevance of size and connectivity between habitats.7 Research
endeavors like the Natural Heritage Program have catalogued and ranked
the rarity and abundance of certain species and ecosystems and provided
a systematic way to communicate that information to landowners and town
However, much of the baseline information on the natural world, whether
it is the diversity and complexity of ecological communities or the behavior
of individual species, is still missing.8 Perhaps just as important,
there is a significant gap between the knowledge that does exist and those
who are responsible for managing land in both the public and private sector.
We need to do a better job of translating these ecological concepts into
land use policies at the site, municipal, and regional scale.
At the same time a sustainable community preserves pristine landscapes,
it must consider ways in which it can more efficiently use land to meet
human needs. Here in the Tri-State Region, unfortunately, we are becoming
less and less efficient in how we use land -- using twice the amount of
land for homes, businesses, roads, and shops per person than we did just
thirty years ago.9 This is true largely because people and jobs
have been leaving our existing cities for low-density suburbs. Between
1970 and 1990, the 12 traditional urban centers of the region lost 30,000
private sector jobs while the region added a million new jobs elsewhere.
And while the region added 100,000 more people as a whole, these twelve
centers lost 750,000 in population.10
This trend has four critically important and unsustainable aspects:
First, we are consuming open space at a prodigious rate, paving more land
in the past thirty years then we had in the previous 300; second, this
dispersed pattern of growth literally drives us to consume extraordinary
amounts of non-energy and produce health-threatening air pollution by forcing
people to use their automobiles for every trip; third, as a society we
waste limited capital dollars on expensive investments in new infrastructure
far from existing schools, roads, and sewage treatment plants; And, finally,
we are marginalizing poorer people in our inner cities -- wasting their
potential and sapping strength from social service providers -- by physically
separating these communities from the places where new jobs are being created.
Our auto-oriented transportation system is the biggest user of energy
and non-renewable fossil fuels in today's economy. Moreover, increased
use of automobiles trucks and buses is also the key reason why the Tri-State
region continues to fail to meet Federal clean air guidelines. Cars, trucks,
and buses account for approximately 90 percent of the carbon monoxide and
50 percent of the region's ozone pollution.11 This poor air
quality is a serious threat to health. The young, the old, people who suffer
from allergies and more severe respiratory ailments, and those who exercise
outdoors are most severely at risk.12 New standards for the
discharges of air pollutants and technological advances like the catalytic
converters, and aggressive measures to inspect and maintain our auto fleets,
have improved air quality in the region, but these benefits have been considerably
offset by the increase in vehicle miles traveled. While each tailpipe may
be cleaner, there are more of them, driving longer distances.
The de-centering of homes and jobs has meant that people are driving
more than ever. The number of vehicle miles traveled in the Tri-state Region
grew by 60 percent from 1970 to 1990.13 While this is partly
due to the convenience, comfort, and utility that cars offer, the impetus
toward an automobile-centered economy and lifestyle has also been driven
by changes in land use. By trading in our cities for suburban subdivisions
and office parks, the Region's residents have far fewer choices when it
comes to how they get to work, school, or leisure time pursuits. The automobile
is in many cases the only way for people to get around.
We need to re-think our auto-first development pattern. Concentrating
development, and especially jobs, in existing transit hubs can be a powerful
way to provide people a choice about whether or not they have to use their
car to get to their work, school, or shopping.
Building in urban areas can also save money. Urban areas contain the
bulk of our existing fixed capital investments in roads, sewers, schools
and other infrastructure. Rural areas often lack such infrastructure, which
often must be built at great public expense. That
is why a Rutgers University study estimated that a centers-oriented development
strategy would help save New Jersey municipalities and school districts
an estimated $400 million in tax dollars a year as compared to current
sprawl oriented development.14 Becoming more efficient when
undeveloped land is converted toward homes and businesses will also provide
savings. For example, with compact development patterns, fewer miles of
roads and utilities have to be built and school districts can more efficiently
operate at full capacity. Savings of around 25 percent in road construction
and maintenance and 15 percent in utilities, and smaller savings in public
education, offer potentially large savings overall in service costs.15
Perhaps, most importantly, center- and transit-oriented development
is also a way to bring many of the residents left behind by the modern
economy, our urban poor, into the mainstream. New jobs have increasingly
been inaccessible to inner-city, minority communities. Between 1970 and
1990, there was only a 2 percent increase in jobs in the region's core
urban counties, where one in five residents was living in poverty. In contrast,
job growth in the suburban ring, where in 20 people are below the poverty
line, was 36 percent.16 Many of these poor do not have access
to an automobile: 40 percent of the residents of Newark, for example, do
not own a car. By creating jobs in existing centers, or at least building
them in locations that can be reached by mass-transit, we can enable people
the opportunity to get to a job.
Reversing or even slowing the suburbanizing development patterns of
post-World War II America is a tall order. State and metropolitan plans
that deal comprehensively with managing growth in suburbs and cities, like
New Jersey's State Plan for Development and Redevelopment, can provide
the right framework. To be effective, however, these plans need to have
real carrots and sticks in order to affect change at all levels of government.
A more direct way to increase our efficiency in using land is begin
recycling the many acres of abandoned or underutilized land in our cities
and older suburbs. The lack of re-investment and re-development in urban
centers has left behind tens of thousands of acres of once-built-on and
now empty urban land.17
These former industrial areas -- "brownfields" as opposed to "greenfields"
--are often prime development candidates and are located in close proximity
to major transportation lanes and centers of commercial and industrial
As a result of their former use, some of these sites have been contaminated to some degree by toxic chemicals. In certain cases, these sites may pose a threat to the people who live nearby. Many of these sites have no or limited contamination problems. These sites are simply eyesores that undercut the viability of urban communities, limiting their quality of life and property values.
In order for such sites to be reused, new owners must clean them to
public health standards set by state and federal government. But regardless
of the actual degree of cleanup required, liability and uncertainty plague
any developer bold enough to even take an interest in a "brownfield" site.
For older sites, there is often no way of knowing what may lie beneath
the surface of the soil. Health standards may change as technology and
medical science advance. And since many of the sites have been only cursorily
examined, there's always the possibility that further contamination will
turn up once remediation is already under way.
Adapting government programs to limit the uncertainty and potential
liability of clean-up, especially when the current owner is not the party
responsible for the contamination in the first place, has prove to be an
effective way to improve our "recycling rate" for these derelict properties.18
The value of conserving open space cannot be measured in acreage alone.
One important yardstick is the maintenance and improvement of the ecosystems
that are located there. Whether it is a wetland providing storage for floodwaters,
a green stream bank intercepting stormwater sediment, a hedgerow providing
shelter to wildlife, or a shady street tree keeping city streets cool and
free from soot, healthy vegetation and hydrologic systems are key reasons
we are concerned about open space conservation.
In many cases, the physical and biological functioning of this green
"infrastructure" can provide many of the same services as traditional "gray"
infrastructure at a fraction of the cost. These services are provided at
a fraction of the cost of the engineering that would be required, and is
required, when these systems are mismanaged, disrupted, or simply paved
over. New York City's "Bluebelt" project on southern Staten Island is one
example of a creative public investment strategy. By constructing wetlands
and otherwise improving the ability of island's natural drainage network
to handle the rainwater that pours off city streets, New York City has
greatly reduced the number of expensive storm sewers it will have to build
and has provided wildlife habitat and public open space. Another example
is the restoration of New York City's Jamaica Bay estuary, where an innovative
water quality program is integrating planned treatment system upgrades
and the protection and restoration of natural systems and habitat basin-wide.
The results will be improved wildlife and fisheries habitat, new recreational
opportunities, and mandated water quality improvements at less than half
of the costs of traditional water quality and wildlife management programs.
One way of maintaining the services of green open space is to pave fewer
acres for the same amount of homes and businesses, clustering new construction
and building at higher densities in "open space subdivisions." But it also
means learning how to leave a smaller ecological footprint by locating
development in the most suitable areas and by using management practices
and performance standards that minimize the impact of development on natural
processes. Many planing guidebooks have focused on ways of adapting traditional
tools of community planners, zoning, subdivision approval, and site plan
review in ways to protect open space, rather then recreating look-alike
We can also achieve many of these benefits by restoring ecological functions
to areas where such values have been degraded. Greening cities by planting
and managing trees in streets, parks, and backyards can dramatically improve
the environmental surroundings of urbanites. Scientists at the United States
Forest Service have shown how street trees can reduce a city's peak summertime
temperatures by 3 to 5 degrees, cutting the size of air conditioning bills
and peak electricity demand and significantly reducing the formation of
health-threatening, low altitude ozone pollution.20 Stream and
wetland restoration techniques recreate habitat and often clean water more
effectively and more cheaply than large-scale engineering solutions such
as treatment plants.
A sustainable community is also an affordable community -- one that
does not simply buy environmental quality for today and then pass along
a financial obligation to pay for it to future generations. While many
environmental expenditures, like the purchase of land or planting trees,
are lasting capital investments that logically should paid in part by future
beneficiaries, many other costs, such as the costs of managing land or
treating waste are essentially operations and maintenance costs; costs
that each generation should bear on its own.
Many of the principles and policies discussed will save money over the
long-term. By re-investing in cities and their people, relying more on
mass-transit, using the power of green infrastructure, and being more efficient
when we do build, we will lower our costs in the long run as well as achieve
some conservation goals we can enjoy right now.
But our current fiscal climate means that we also need to be more creative
in our approach to financing conservation. One way is to build partnerships
with private landowners, businesses, and community groups to provide and
manage open spaces without tax dollars. Whether helping farmers maintain
working green landscapes of croplands and forests, using transfer of development
rights programs, or creating of park improvement districts that tax neighbors
of parks on the property values created from nearby protected open space,
linking private-sector activity and investments to public resources can
help maintain open space at an affordable cost.
Ultimately, we may also need to recalibrate our tax and other financial
policies to ensure that we are not inadvertently promoting the consumption
of land by sending the wrong signals to businesses, homeowners, and developers.
Our patterns of open space consumption have been fueled by Federal and
state investments in highways and sewers far from existing towns, as well
as by the artificially low cost of gasoline and driving. They have also
been driven by a recurring cycle of "fiscal zoning": as once-rural communities
are developed, property taxes rise to meet demands for services. Local
elected officials revise their land use codes to bring in commercial uses
that pay taxes without requiring services while discouraging smaller lot,
higher density housing, whose property taxes are unlikely to pay for the
services they require. As a result, affordable housing gets pushed even
farther out into the undeveloped countryside.
Restructuring property tax and other fiscal policies so as to raise
the tax burden on activities damaging to productivity (such as land clearing
and traffic congestion) and lowering the tax burden on essential activities
(i.e., employment and investment in center cities, restoration of ecological
functions) has been little explored to date and merit serious investigation.
At the regional level, green fee policies could translate into competitive
advantages in the costs of doing business and the quality of life.21
Sustainability is a concept and a process, and not a set of concrete
recommendations. It is a goal to be achieved step by step. The principles
and policies discussed in this paper are offered in the hopes that they
can be helpful guideposts.
But sustainability is also a promise. And an important one for those
who care about the future. Sustainability promises us that if we develop
our towns and cities in the right way, they will be efficient and pleasant
places to live and work forever. It is a promise that if we manage habitat,
drinking water watersheds, farms, and woodlots in the right manner, we
can expect to enjoy the fruits of the land forever. And it is a promise
that if we build our economy correctly, then we can be both prosperous
and have a clean and healthy planet forever.
1 United Nations, Agenda 21: The United Nations Programme
of Action from Rio, United Nations Publication # E.93.1.11, June 1992
2 Regional Plan Association, The Quality of Life Polls, 1995.
3 The 12 centers are Trenton, New Brunswick, Newark, and
Jersey City, NJ; New Haven, Bridgeport, and Stamford, CT; New York, White
Plains, Poughkeepsie, Hicksville, and Mineola, NY. Population data from
the US Census. Employment data from the State Departments of Labor.
4 See New Jersey Office of State Planning, Impact Assessment
of the New Jersey Interim State Development and Redevelopment Plan. Report
II: Research Findings. Trenton, NJ. 1992. and Burchell and Listoskin,
Land, Infrastructure, Housing Costs and Fiscal Impacts Associated with
Growth: The Literature on the Impacts of Sprawl versus Managed Growth.
5 Estimate based on extrapolating RPA's survey of brownfield sites: Linda P. Morgan, et al, Union County Model Site Redevelopment Project: Final Report, Regional Plan Association/New Jersey, June 1994.
6 See for example, Staff Report to the New York State Joint Legislative Commission on Toxic Substances and Hazardous Wastes, The Voluntary Cleanup of New York's Contaminated Property: Barriers and Incentives, October 1994, and Linda P. Morgan, et al, Union County Model Site Redevelopment Project: Final Report, Regional Plan Association/New Jersey, June 1994
7 Robert D. Yaro, et al, Dealing with Change in the Connecticut
River Valley: A Design Manual for Conservation and Development, Center
For Rural Massachusetts, 1988; Randall Arendt, et al,
Rural by Design,
Natural Lands Trust, 1994; Randall Arendt, Designing Open Space Subdivisions,
Natural Lands Trust, 1994; and John Feingold, Robert Pirani and Graham
Trelstad, Managing Watersheds: Combining Watershed Protection and Community
Planning, Regional Plan Association and New York City Department
of Environmental Protection , (Forthcoming, 1996).
8 In Green Fees: How a Tax Shift Can Work for the Environment
and Economy, Robert Repetto et al. argue that such a corrective change
could generate an annual savings of more than $50 billion nationally. (Washington:
World Resources Institute, 1992.)
9 According to Regional Plan Association estimates and the
United States Census. In 1965, there was less than .08 acre of urban land
for every person in the Region. Today, there is roughly .17 acres per person.
10 The 12 centers are Trenton, New Brunswick, Newark, and
Jersey City, NJ; New Haven, Bridgeport, and Stamford, CT; New York, White
Plains, Poughkeepsie, Hicksville, and Mineola, NY. Population data from
the US Census. Employment data from the State Departments of Labor.
11 US EPA 1992 Transportation and Air Quality Planning Guidelines,
EPA 420/R-92-001, July 1992, p,. 4; Center for Resource Economics, Annual
Review of the US EPA, Island Press, May 193, p. 92. (from Tri State Transportation
Campaign, Citizens Action Plan, December 1993)
12 RPA, The Health Affects of Ozone, Project Clean Air N.
3, April 1990.
13 New York Metropolitan Transportation Coordinating Council.
14 "Impact Assessment of the New Jersey Interim State Development
and Redevelopment Plan: Executive Summary," prepared by Rutgers University
Center for Urban Policy Research for the New Jersey Office of State Planning,
15 See New Jersey Office of State Planning, Impact Assessment
of the New Jersey Interim State Development and Redevelopment Plan. Report
II: Research Findings. Trenton, NJ. 1992. and Burchell and Listoskin,
Land, Infrastructure, Housing Costs and Fiscal Impacts Associated with
Growth: The Literature on the Impacts of Sprawl versus Managed Growth.
16 RPA defines the urban core of the Region as New York City, Essex, Hudson, and Union Counties. Data is from the Us Census and the State Departments of Labor.
17 Estimate based on extrapolating RPA's survey of brownfield sites: Linda P. Morgan, et al, Union County Model Site Redevelopment Project: Final Report, Regional Plan Association/New Jersey, June 1994.
18 See for example, Staff Report to the New York State Joint Legislative Commission on Toxic Substances and Hazardous Wastes, The Voluntary Cleanup of New York's Contaminated Property: Barriers and Incentives, October 1994, and Linda P. Morgan, et al, Union County Model Site Redevelopment Project: Final Report, Regional Plan Association/New Jersey, June 1994
19 Robert D. Yaro, et al, Dealing with Change in the Connecticut
River Valley: A Design Manual for Conservation and Development, Center
For Rural Massachusetts, 1988; Randall Arendt, et al,
Rural by Design,
Natural Lands Trust, 1994; Randall Arendt, Designing Open Space Subdivisions,
Natural Lands Trust, 1994; and John Feingold, Robert Pirani and Graham
Trelstad, Managing Watersheds: Combining Watershed Protection and Community
Planning, Regional Plan Association and New York City Department
of Environmental Protection , (Forthcoming, 1996).
20 Robert D. Yaro, et al, Dealing with Change in the Connecticut
River Valley: A Design Manual for Conservation and Development, Center
For Rural Massachusetts, 1988; Randall Arendt, et al,
Rural by Design,
Natural Lands Trust, 1994; Randall Arendt, Designing Open Space Subdivisions,
Natural Lands Trust, 1994; and John Feingold, Robert Pirani and Graham
Trelstad, Managing Watersheds: Combining Watershed Protection and Community
Planning, Regional Plan Association and New York City Department
of Environmental Protection , (Forthcoming, 1996).
21 Urban Forests, August/September, 1993; E. Gregory McPherson,
David Nowak, and Rowan Rowntree, Chicago's Urban Forest Ecosystem: Results
of the Chicago Urban Forest Climate Project, USDA Forest Service General
Technical Report NE-186
22. In Green Fees: How a Tax Shift Can Work for the Environment and
Economy, Robert Repetto et al. argue that such a corrective change
could generate an annual savings of more than $50 billion nationally. (Washington:
World Resources Institute, 1992.)
Executive Director, Isleboro Islands Trust
Waters, you are the ones who bring us the life force.
Help us find nourishment so that we may look upon great joy.
Let us share in the most delicious sap that you have, as if you were loving mothers.
Let us go straight to the house of the one for whom your waters give us life and give us birth.
For our well-being, let the goddesses be an aid to us; the waters be for us to drink.
Let them cause well-being and health to flow over us.
The evening sun was on our backs as my two sons and I dragged their
homemade skiff to the water and packed the tent, their sleeping bags, and
backpacks into the crowded space. I sat on a beached log to watch them
paddle the few thousand feet over to Hutchin's Island. Two osprey circled
the glass-like water of the marsh behind the sand bar. The boys making
camp across the cove were bathed in a clear orange light that made the
moment priceless and timeless.
We find ourselves, in this late twentieth century, facing limits to and changes in many of the concepts and aspirations we were taught to believe life would always offer: that our standard of living would always improve, that having more gadgets would make us happier, that there would always be frontiers to conquer and opportunities to seize, that science and technology could solve any and every problem, that economic prosperity would follow growth, that life was healthy and safe and secure. My sons that evening were a bridge to the past when all young boys went on their first overnight adventure, very probably in a small boat they had made themselves. I was in contact with the ancient neighbors of this place who came by canoe to harvest soft-shell clams and camp on the banks of Hutchin's Island all summer long. Yet the fish hawks, the light, and the glistening grasses of the marsh were powerful in their presence, grounding the experience to this time, this place, this special niche. And then, my mind moved toward the uncertain future. Will my sons have the pleasure of watching their children set sail into adulthood with this same kind of contentment? Will there be places like Hutchin's Island for my grandchildren and their grandchildren and their grandchildren beyond them into the future to explore and add to their own individual stores of knowledge and experience? Even more troubling, will the future hold clean water, wild fish, fertile soil, pure air to breathe? Sitting on the weather-worn trunk of that long ago fallen tree, I was sobered by the thought that we humans have overshot the globe's ability to support life as we presently know it. At the same time, I felt strangely empowered as the importance of preserving this kind of experience was focused in a new light.
We are at the absolutely unique moment in time when natural capital
has replaced man-made capital as life's limiting factor. Gone are the days
when there was always some other place on the globe to go to for resource
extraction when the present site was depleted. The life-sustaining products
of nature and open space are not simply limited but are actually declining.
Human material demand now exceeds the long-term carrying capacity of Earth.
There are fewer and fewer places capable of supporting agriculture each
day, drinking water is becoming increasingly difficult to find, fisheries
are collapsing. We have moved from a world relatively full of natural capital
and empty of man-made capital (and people) to a world relatively full of
the latter and empty of the former (Daly, 1994).
Natural capital can be described as the sum of the values of the functions
and products of the ecosystem. Natural capital consists of three major
The list of benefits of open space is long and deep, beginning with
the most elemental functions that support life to provision of the spiritually
invigorating experiences that renew our will to carry on. These benefits
can be described in equally myriad ways, from prose and poetry to dollars
and cents. Yet one thing is clear: the inherent uncertainty and risk associated
with continued reduction in these benefits of open space highlights the
common sense need to maximize the present productivity of nature and work
toward increasing its future supply. In the face of uncertainty and irreversibility
associated with the loss of natural capital, conserving what is left of
natural capital is a sound strategy. In fact, preserving a variety of habitats
having somewhat differing attributes as sites for the continued production
of natural capital is analogous to the economic concept of risk diversification
in an investment portfolio (Ehrlich, 1994).
Conserving and investing in life support ecosystems and interrelated socioeconomic systems provides some resilience to change and maintains the basis on which successful economic activity can continue. Nature's real producers are found in open space. Human production draws energy, materials, even inspiration from these real producers. Humans create possessions (and ideas); natural systems are the basis of that creation (oxygen, chlorophyll, water, soil, etc.). The economic system is a subsystem of the global ecosystem and local economies are subsets of local ecosystems. Open space provides functions that are essential to our economic well being. These open space economic benefits, then, provide the basis for satisfying human needs and are the ground on which human actions play out their life long drama. Finding the language, the measures, the means of charting the economic and ecologic relationship is not easy or always clear. New methods and improvements in old methods are available, and a brief survey follows.
Our lives are embedded within a vast network of natural systems. We
live within the confines of natural processes and components, the sum of
which are the earth's ecosystem. As illustrated in the accompanying figure,
natural processes and components provide goods and services for human use
(such as soil for agriculture, water for drinking, wetlands for waste absorption)
but also represent hazards and risks in various forms (such as hurricanes,
floods, system complexity, irreversibility). Human actions, on the other
hand, can impact the natural system negatively (through species eradication,
soil erosion, acid rain, degraded water quality) or positively (through
increased soil fertility using organic amenities, forest improvement through
species diversification), although it is often difficult to make positive
contributions to the ecosystem that improve on pre-industrial levels of
The economic benefits of open space are natural capital. Most of these
benefits, such as aquifer recharge or scenic vistas, are public. All members
of the community benefit equally. Development and many other human activities
preclude or threaten these open space environmental services. Implied is
a shift in perspective away from seeing natural resources and environmental
services as free or incapable of being measured (and therefore of no empirical
economic value) toward seeing open space values as integral to long-term
economic well-being. A true accounting of these benefits will list all
attributes and functions of the open space, estimate the value of each
or find some comparative means of expressing that value, then discount
for any costs. Such analysis and assessment is a practical decision-making
aid. Will this subdivision be economically better for the community than
the open field upon which it will be sited? Are the dangers of siltation
from the commercial proposal along the creek worth the jobs likely to be
generated? Are tax policies which compel owners of open space to sell or
subdivide in the best long-term interests of the municipality? These and
similar questions need careful, accurate answers. Cost-benefit analysis
procedures can play a role in finding these answers.
Preserving open space guarantees that current social benefits from the
environment will be continued. A residential or commercial development
may sacrifice some or all of those particular social values in return for
other, either social or (more likely) individual, rewards. This kind of
trading has created an environmental deficit in the world because the "other
rewards" have not compensated for the costs. Put differently, such an environmental
deficit exists "because the longer-term ecological, social, and economic
costs to human welfare are greater than the shorter-term benefits flowing
from the collective and mostly unanticipated impact of humankind's alterations
of the earth's atmosphere, water, soil, biota, ecological systems, and
landscapes" (Bormann, 1991).
Cost-benefit analysis of open space begins with a thorough listing of
the functions and attributes threatened by the problem at hand or otherwise
under consideration. The range of benefits provided by open space and its
ecological functions can be quite extensive so a concise and orderly methodology
is essential in order to include all relevant characteristics. Agricultural
opportunity; forest management; surface and groundwater; wetlands; wildlife
habitat; traditional fishing, fowling, clamming access over and above rights
protected by law; recreation land; historic land; scenic views; special
natural features; traditional rural character; lifestyle amenities like
cross-country skiing, hiking, or implicit access to the shore; contributions
to "quality of life" and neighborhood value and therefore to second home
development and relocation attractiveness; contributions to ambient healthful
living conditions; aesthetics; environmental diversity; archaeological,
biological, botanical, and scientific opportunity; clean air; and strong
sense of community are all possible considerations.
Rudolf S. de Groot (de Groot, 1994) recommends creating a matrix using
the ecological functions
of the space under discussion, grouped
by kind, as a way to organize the relevant information. It may instructive
to view his list:
Regulation Functions provide the capacity of natural systems
to regulate essential ecological processes and, thereby, provide clean
air, water, soil, etc. These include:
1. protection against harmful cosmic influences;
2. regulation of the local and global energy balance;
3. regulation of the chemical composition of the atmosphere;
4. regulation of the chemical composition of the oceans;
5. regulation of local and global climate;
6. regulation of runoff and flooding;
7. water catchment and groundwater recharge;
8. prevention of soil erosion and sediment control;
9. formation of topsoil and maintenance of soil fertility;
10. fixation of solar energy and biomass production;
11. storage and recycling of organic matter;
12. storage and recycling of human waste,;
13. storage and recycling of human waste;
14. regulation of biological control mechanisms;
15. maintenance of migration and nursery habitats; and
16. maintenance of biological and genetic diversity.
Carrier Functions provide the setting, the space, the medium
, and the suitable habitat for human activities. These include:
1. human habitation and indigenous settlements;
2. cultivation of crops, animals, aquaculture;
3. energy conversion to human ends;
4. recreation and tourism; and
5. nature protection.
Production Functions convert the resources from food and raw
materials into energy sources and genetic material. These include:
3. food and nutritious drinks;
4. genetic resources;
5. medicinal resources;
6. raw materials for clothing;
7. raw materials for building, construction, and industrial use;
8. biochemicals (other than fuel and medicines);
9. fuel and energy; and
10. fodder and fertilizer.
Information Functions include:
1. aesthetic information;
2. spiritual and religious enrichment;
3. historic information (heritage value);
4. cultural and artistic inspiration; and
5. scientific and educational information Pimentel (1991) estimates
these benefits to be worth more than $1 trillion annually to the U.S. economy.
|Ecological values||Social values||Economic values|
|Environmental Functions:||Conservation value||Existence value||Health||Option value||Consumptive use value||Productive use value||Employment|
|TOTAL for natural area|
The de Groot matrix further organizes the
major benefits of open space into three categories: ecological values (including
conservation and existence value), social values (including health and
option values), and economic values (including consumptive use, productive
use, and employment values) as illustrated in the accompanying table.
Not all functions can be given a monetary value.
The ecological value of environmental functions may need to be measured
in numbers of species, amount of runoff prevented or other relative terms
or by using qualitative terms that attempt to describe a degree of value.
Social values might be measured by minimum standards or requirements such
as minimum air quality standards or maximum fisheries harvest regulations.
What de Groot calls the economic values of environmental functions may
be expressed as quantities harvested or similar numbers, the sale price
of harvested resources, or by numbers of people employed with that function.
Otherwise, various more traditional cost-benefit analysis techniques like
travel cost computations may be used to estimate values. The total value
of a given natural area or ecosystem is the total of the various benefits
of the individual functions. Although filling values into the matrix is
challenging, developing a complete picture of the issues at stake by organizing
the functions and attributes of the natural area in question can, in itself,
provide useful information for all concerned.
Some of the tried or emerging techniques used to
estimate the value of these environmental services, when seeking a monetary
price for relevant categories, are market and surrogate-market price valuations,
mitigation costs, property value techniques, the travel-cost approach,
and survey-based techniques. Each method seeks to establish the value of
an environmental service or groups of services relative to other valuations
in common daily commerce.
Existing studies of this type have produced dramatic
results. For instance, a 1981 cost-benefit study in Massachusetts found
annual wetlands values as high as $170,000 per acre. A survey-based cost-benefit
analysis measuring the value of a scenic view and clean air threatened
by a coal-fired power plant found those open space benefits to be in the
range of $400,000 to $700,000 per year. Recreation values coming from unpaid
use of a private swimming area were, in one instance, $685,000 annually.
Many studies have pointed to the costs of development.
A DuPage County, IL report conducted by the regional planning commission
found commercial development, in particular, cost municipalities in the
region far more than it paid in property tax revenues. The Guldner study
in New Hampshire concluded that all but the most expensive residential
development also costs more than it pays. These results prompt one authority
to say, "The traditional view of the matter, which prevailed into the 1970's,
was that most development 'pays its way.' The emerging view today is that
virtually no development does..." (Altshuler, 1991).
The costs of development are so large that, in some
places, municipalities have considered purchasing land rather than absorb
the losses due to development. For example, in Wayland, MA, a professional
analysis found that development of 1250 acres of open space would cost
taxpayers $328,350 a year more than the development added in new tax
revenues. This represented a $7.75 increase in the tax rate. On the other
hand, to purchase the property would only add $4.25 to the tax rate (Bryan).
If a scenic view is lost, or a wilderness experience,
or a hunting ground, or fishing capability, or any other amenity flowing
from open space, and this loss is due to development, then the value of
what has been lost must be considered. It is, in such instances, a cost
of development. Retained, the environmental amenity is a public benefit
contributed by the open space property. Therefore, one indirect benefit
of open space is that it helps a municipality avoid the costs of development.
Some development projects so alter the natural ecosystem
of the site as to render it essentially destroyed. In such cases, since
the two alternatives (preservation and development) are mutually exclusive,
the economically efficient choice is the one that maximizes the value of
benefits. The value of the benefits from the natural system continue for
an indefinite time into the future. It is tempting to say that the benefits
of preservation of the ecosystem in such a situation would approach infinity
since future generations would be allowed enjoyment of the environmental
Although few developments are that destructive, the
affects of losses on local biodiversity have yet to be fully understood,
let alone measured, and new evidence puts the costs ever higher. The inter-woven
connections between components of a particular ecosystem challenge the
advisability of virtually any significant alteration. Our new humankind
ability to eradicate species of plants, animals, and microbes forever may
well have sobering economic effects on future generations. Biological wealth,
or biodiversity, "is much more potent for long-term human welfare than
is generally appreciated" (Wilson, 1991). Ecologists have known at least
since MacArthur in 1955 that "diversity begets stability," meaning that
systems having more species diversity are more stable and long lasting
than those having less diversity (Daly, 1994). This, in turn, corresponds
to less stress in the community since the system is able to respond to
fluctuations in conditions more readily.
In general, the total social benefit of a well defined
environmental service or group of services is a reflection of the number
of individuals who actually enjoy the particular open space benefits under
analysis. Individual demands together equal total social demand.
The shaded area underlying D equals the total social
benefit (Hufschmidt, 1983).
This total benefit can be expected to increase over
time since the supply remains constant or may even be diminishing as demand
increases. Increase in demand for preserved open space and other environmental
services is well documented. Visitation rates at state parks have increased
dramatically as have other indicators of public interest in natural resources
and corresponding amenities.
Increasing public demand for the social benefits
of open space represents an annual appreciation rate. If the value of swimming
at a popular private beach was determined to be $15,500 in 1987 by using
the travel-cost technique, the value of that same amenity will increase
into the future. The appreciation rate can be estimated by reviewing appreciation
rates for similar amenities in the past. For example, the increase in demand
for recreational services in Oregon from 1946 to 1960 was about 14% per
year, for Idaho about 12%, and in the Colorado River area about 45% per
year (Hufschmidt, 1983).
Using the most conservative of these figures (12%),
the example above would have a net annual social value of $38,377 today
(1995 dollars) without capital investment. We might say that the owners
of such a private beach used by the public will contribute $38,377 worth
of recreational value to the local community this year by preserving the
area as open space.
However, since the beach could provide that benefit
forever if carefully protected and managed, the $38,377 value is like interest
paid out to the public on the natural capital principal sum. When thought
of in this way, the value of the beach as principal, using an interest
rate of 6%, would be $639,616.
Open space and the environmental services flowing
from it enhance property values for neighboring land. In Boulder, CO, a
study of enhanced property values near open space showed an annual increase
in property tax revenue of approximately $500,000. In Salem, OR the land
adjacent to open space was worth approximately $1,200 more per acre than
urban land 1,000 feet away from the green belt (Park Service, 1990).
Proximity to parks in urban areas has been shown
to account for up to 15 - 20% of a property's value, according to the National
Association of Homebuilders (Caputo). In California, it was estimated than
$100 million annually in the form of increased property values was the
result of a park bond one-time investment of $330 million (Park Service,
1990). Enhancement values appear to more than compensate for any losses
due to adjusted taxation for the open space.
Once lost to development, open space is impossible
or difficult to retrieve and the long-term costs can be immense. Open space
can be described as a "non-depreciating, non-reproducible asset with increasing
benefits over time." (Krutilla, 1975).
Open space also conveys value because of the potential
for future land use choices. Retaining choices is a public welfare benefit.
Expansion of choices or options represents a welfare gain, reduction of
options, a welfare loss. Although not traded on Wall Street, environmental
options are of measurable value just as stock market options convey value.
Option value from open space is the gain from being able to learn about
future benefits which would be lost because of development. The option
retained is the option to preserve or develop (in a manner which would
not preclude the environmental benefits) in the future.
Not only is there an option value at the point in
time when a decision is made to preserve a property's open space rather
than develop it. That value will increase over time either forever or until
the preservation technique dissolves (as in current use tax restrictions)
or until all other property is either built-out or protected as open space,
thereby essentially closing "trading" on that commodity.
Loss of open space and its environmental functions
and components, especially biodiversity, means a reduction in that community's
range of assets. This in turn suggests that there is also a reduction in
the community's opportunities, as is the case in the loss or reduction
in any group of assets. A necessary condition for human welfare is a stable
range of choices.
The option value of preserving open space is significant.
Even in instances of some uncertainty over exact measures of the social
benefits of preserving the open space, if there is a prospect of better
information coming later about the open space benefits which a development
project would preclude, social welfare is maximized by waiting (Krutilla,
The market or surrogate market pricing technique
uses direct market values of goods or services affected by changes in environmental
quality to measure the relative benefits of such change. If a commercial
development were to preclude forest management, then the real value of
the forest products and related businesses could be compared to expected
values from the commercial venture, subtracting costs of each. This would
provide a monetary value for one segment of the environmental functions
matrix for that particular natural area. Other functions would need to
be considered and an estimated minimum total value found. If a swimming
beach were to be closed to public use, the cost of building a municipal
swimming pool might be used as a surrogate pricing mechanism to measure,
again, at least that function of the matrix of values for the beach area.
An analysis by Gupta and Foster (Hufschmidt,
1983) used market prices to determine the net social
benefits of preserving wetlands. The study needed to determine the economic
desirability of either preserving the wetlands in their natural state or
allowing development to proceed. Market prices were obtained for wetlands
sold for development in Massachusetts in 1970-1971. The economic benefits
of the development of the wetlands varied from $16 to $3,762 per
Wetland benefits were identified and divided into
|Annual Value Per Acre of Wetlands|
Type of Benefit
Net social benefits of low productivity wetlands
are higher than low-end returns from development. Highly productive wetlands,
valued at $3,220 per acre in 1974, were actually quite competitive with
the high-end benefits of development. Considering the appreciation of values
associated with the wetlands in their natural state and the analyst's acknowledgment
that the environmental valuations are minimum, the bottom-line conclusion
favors preservation of the wetlands.
A similar study done in 1981 found an acre of wetland
in the Charles River Basin to be worth $170,000 annually; the National
Wildlife Federation in 1987 reported values for "bottom land forests and
tidal estuaries" to average $30,000/acre; and Ducks Unlimited set wetland
values at $50,000/acre (Greenbaum, 1987).
The travel-cost approach to valuing environmental
characteristics of open space properties has been used to derive a demand
curve and value for recreational opportunities in which public access has
been allowed free of charge. Since demand for the otherwise "free good"
is not infinite because there is a cost involved in getting to and from
the site, travel expenditures to and from a recreational resource can be
used as a measure of the recreational benefits of the open space.
As travel costs rise, usage decreases. In the chart
below, total public visits at no cost are represented by A. Point B represents
a theoretical smaller number of visits when travel costs equal $1.00. As
costs rise, eventually no more visitors will arrive (point M at zero).
Line AM is the demand curve for use of the site and the area under AM estimates
the value of the recreational benefit to those users.
Travel and tourism is the leading employer in several
states and has been predicted to be the leading industry in the United
States and the world by 2000. A poll commissioned by the President's Commission
on Americans Outdoors found that natural beauty was the single most important
criterion for tourists.
Purchases associated with water-related outdoor recreation
in Minnesota during 1985 totaled nearly $1.2 billion. A survey of expenditures
associated with recreational use of the St. Croix River here in Maine found
that anglers spent six times as much per person, per day, as canoeists
and over four times as much as general vacationers. Total estimated recreation-related
expenditures in the area were $2.3 million annually (Miles, 1987).
We have never before faced the natural limits to
growth that now confront the world. Just as a twelve-year-old challenges
all limits to exploration, so we, too, just youngsters as measured by the
age of the earth, want to challenge these material limits defined by nature.
Often, as, for instance, in many property rights "takings" proposals, we
lash out at the idea of limits, hoping to throw them away in the interest
of growth and prosperity. The great irony, of course, is that we actually
increase the degree of limitation by ignoring the physical limits of life
and decreasing the natural capital our ancestors left in our care.
Learning to live within the limits of the earth,
using human ingenuity as the source of unlimited development opportunity
while, at the same time maximizing the life-sustaining benefits of open
space and natural areas, is a clear choice:
We have before us two paths, one that ignores the
true benefits of open space and leads to ever greater instability, poorer
economic opportunity, and possibly system destruction. The other path honors
the human role within the greater ecological scheme of the earth and in
so doing offers a brighter promise for the human experiment.
Returning home along the fir-shrouded path, I knew
my sons' Hutchin's' Island adventure was healthy and safe and secure, informed
by the past, nurtured by the present, itself the seed of the future.
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Ecological and Human Health." Physicians for Social Responsibility Quarterly.
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Use Assessment." Concord: RSA 79-A and Chapter Rev 1200 for Current Use,
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Development." Reprinted in Earth Ethics. Washington: Green Fire
Foundation. 2, 4. 1991.
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the Earth. Cambridge, MA, M.I.T. Press. 1993.
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Handbook. Alexandria: Land Trust Exchange, 1988.
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and Patricia Solotaire. The Comparative Economics of Residential Development
and Open Space Conservation. Portland: Allagash Environmental Institute,
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The Maine Advantage: An Economic Development Strategy for the State of
Maine." Augusta: Department of Economic and Community Development, 1987.
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Capacity of Earth." In Investing In Natural Capital. Island Press,
Washington, D.C. 1994.
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AnnMari Jansson. "Investing in Natural Capital -- Why, What, and How?"
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Freedgood, Julia. "The Cost of Community Services
in Gill, Massachusetts." Washington: American Farmland Trust, 1991.
_________."Cost of Community Services Studies: Snapshots
of Net Fiscal Impacts of Different Land Uses in Towns." Washington: American
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_________."The Cost of Community Services in Agawam,
Massachusetts." Washington: American Farmland Trust, 1991.
_________."The Cost of Community Services in Deerfield,
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Freeman, A. M., III. "The Hedonic Price Approach
to Measuring Demand for Neighborhood Characteristics," in The Economics
of Neighborhood, D. Segal, ed. New York: Academic Press, 1979.
Greenbaum, Daniel S. and Arleen O'Donnell. Losing
Ground: The Case for Land Conservation in Massachusetts. Massachusetts
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The Fiscal Impacts of Alternative Development Scenarios in Rockingham and
Strafford Counties, New Hampshire, 1988." Seventh in a series titled Land
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Development: An Economic Valuation Guide. Baltimore: The Johns Hopkins
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After all [if] a policeman must know the Constitution, then why not a planner?"(1)
Justice William Brennan
Defending land use planners everywhere,
Justice Stevens answered Justice Brennan by recounting the Courts own difficulty
defining the limits and requirements the Constitution places upon laws
regulating land use and asked, "How then can it demand that land planners
do any better?"(2) Declining Justice Stevens
invitation to throw in the towel, I attempt here to explain the body of
notoriously confused law that officials acting to protect open space and
environmentally sensitive land must follow.
In part one of this paper, I discuss the
basis for the power to enact such protections, divide the challenges that
may be brought against those protections under the Constitution into two
analytically distinct categories, and examine those early challenges.(3)
In parts two and three, I discuss the development of regulatory takings
theory, the adoption of a more meddlesome standard of review for land use
regulation, and suggest ways for land use planners to avoid challenges
to those regulations. Finally, in part four, I discuss "takings" legislation,
the true wildcard in the effort to protect open space and environmentally
The Police Power
The relationship between the federal government
and the states is defined in the Constitution. Under the Constitution,
the federal government is a government of "enumerated" powers; that is,
the Constitution specifically sets forth, or enumerates, the powers held
by the federal government. The states, by contrast, are governments of
"residual" powers which exercise powers contained in the Constitution that
are not specifically reserved to the federal government. The authority
of government to provide for the health, safety and welfare of its citizens,
the so-called "police power," is a residual power held by the states.(4)
It is this power that is the source of state, and where the state delegates
the power, local authority to enact laws which aim to protect the health,
safety and welfare of the community. Land use regulation, including laws
which protect open space and environmentally sensitive land, are enacted
in reliance upon this authority.(5)
There are two analytically distinct types
of constitutionally-based challenges which may be brought against a law
or regulation enacted in reliance upon the police power. In the first type
of challenge, the property owner argues that the law at issue is beyond
that power because the law does not further the public health, safety or
welfare, and must therefore be struck. A property owner who argues that
a land use regulation violates the Equal Protection Clause or the Due Process
Clause of the U.S. Constitution or New Jersey Constitution is, at bottom,
making this argument.(6)
In the second type of challenge, the property
owner does not argue that the law itself is invalid per se, but
rather argues that because the law so impinges upon his property rights
the Constitution requires that he receive compensation if the law is to
stand.(7) This type of challenge is distinct
from the first type because it is not truly the law or regulation that
is alleged to offend the Constitution, but rather the manner in
which the government chose to exercise its power to enact that otherwise
valid law (i.e., without paying compensation). This type of challenge is
based upon the Takings Clause of either the U.S. Constitution or New Jersey
Due Process and Equal Protection Challenges
The Due Process Clause of the Fifth Amendment
to the U.S. Constitution provides that no person shall be "deprived of
... property, without due process of law"(9)
and the Equal Protection Clause guarantees individuals "the equal protection
of the laws."(10) The New Jersey Constitution
provides similarly worded protections.(11)
In the realm of land use regulation, these provisions ensure landowners
will not be bound by a law or regulation which does not protect the public
health, safety, or welfare. Stated another way, without a valid police
power justification for restricting the use of property or treating similarly
situated property owners differently, government action is arbitrary and
the Constitution will not tolerate impinging upon these individual rights.
In Village of Euclid v. Ambler Realty
Co.,(12) the first challenge to a comprehensive
land use regulation heard by the U.S. Supreme Court, the Court defined
the limits of the police power by according great deference to the judgment
of state and local officials. The plaintiff in Euclid alleged that
a classic zoning statute which divided a town into use districts violated
both his due process and equal protection rights. According to the Court,
a plaintiff alleging that a land use regulation violated either clause
had the burden of showing that the ordinance was "clearly arbitrary and
unreasonable, having no substantial relation to the public health, safety,
morals, or general welfare."(13) By finding
that a classic zoning statute failed to meet this test, the Court placed
its seal of approval upon zoning as a land use planning device.
Euclid, then, set out a means-ends
requirement that land use regulations must meet in order to survive due
process and equal protection challenges. First, the regulation must have
a valid, underlying public purpose grounded in the police power. Second,
the regulation must be a reasonable way of achieving that valid purpose.
In the cases following Euclid, the Court indicated that its test
should be guided by a spirit of deference to the judgment of state and
local officials. In accord with that call to deference, courts accept a
wide range of goals as legitimate expressions of the police power, and
give officials wide latitude in designing laws and regulations that will
achieve those goals.(14) In general, courts
rejected the invitation to become "super zoning boards" which would closely
scrutinize land use decisions of state and local officials.(15)
While the right to hold private property
is a central principle of American government, the exercise of that right
has always been impressed with the obligation to refrain from using property
in a manner which would harm neighboring landowners or the general public.
Early interpretations of the Takings Clause of the Fifth Amendment, "...nor
shall private property be taken for public use, without just compensation,"(16)
reflected this obligation by limiting the application of the clause to
actual government seizures of private property.(17)
Claims that government regulation
of the use of property, even where a regulation caused a total or near
total decline in economic value of that property, by contrast, were repeatedly
rejected on the theory that the right to use property is not absolute,
particularly if that use would cause harm to others or the public.(18)
As a result, the concerns of courts and planners with the constitutionality
of land use regulation were originally confined the two-part due process-equal
protection inquiry: Does the law have a valid police power purpose, and
does the law further that purpose?
The Supreme Courts 1922 decision in Pennsylvania
Coal v. Mahon,(19) however, bluntly
put an end to that certainty by accepting the proposition that a regulation
adopted for a valid police power purpose could trigger the Takings Clause
requirement of compensation even though no property was physically taken.
Without much explanation, Justice Holmes ushered in the era of "regulatory
takings" jurisprudence with the now famous warning: "While property may
be regulated to a certain extent, if a regulation goes too far it will
be recognized as a taking."(20) That is,
a regulation that satisfied the Due Process and Equal Protection Clauses
could have such a severe impact upon private property rights that compensation
would be due the affected property owner if the regulation was to stand.
Justice Holmes gave no further guidance to courts, land use planners, and
other government regulators on how far would be considered too far under
this novel legal theory.
Remedies for Successful Equal Protection,
Due Process and Takings Challenges
In practical terms, Mahon and its
progeny provided plaintiffs with another legal theory to advance when facing
land use regulations perceived to be unduly burdensome. After Mahon,
landowners who could have once only hoped to win a constitutionally-based
challenge against a land use regulation under a due process-equal protection
theory could sue under a takings theory with some chance for success.
While Mahon gave landowners another
bow in their quiver, the remedies due the successful due process-equal
protection and the takings plaintiff are quite similar. The victorious
landowner suing on a due process-equal protection grounds will either see
the law invalidated outright or secure an injunction that prohibits the
government from applying the law to him.(21)
In no case will he still be subject to that law. Under the Federal Civil
Rights Act,(22) that landowner will also
have a claim for actual damages sustained while the law or regulation was
The plaintiff who succeeds on a takings
theory, on the other hand, may see the law stand and applied to him. Where
a landowner has shown that a government regulation has taken his property,
the government may either cease applying it to the plaintiff, or may apply
it and pay compensation. Much like the successful due process-equal protection
plaintiff, the successful takings plaintiff who sees the regulation lifted
will be entitled to temporary damages for the time the law was applied
Early Cases and the Penn Central
In the years following Mahon, the
Court reviewed regulatory takings without a coherent theory to guide its
decisions. Eventually, however, a number of different factors emerged as
touchstones in the Courts takings analysis. The Court would ask, for example,
whether the government action could be characterized as authorizing a physical
invasion of private property,(24) or whether
the action could be more readily characterized as adjusting the "benefits
or burdens of economic life to promote the common good."(25)
Because the former were more akin to the physical appropriations of traditional
takings doctrine, they were more likely to be characterized as a taking.
The economic impact of the government action also emerged as a consideration
in the inquiry, (26)as did the extent to
which the action interfered with the property owners investment expectations
with respect to the property.
In Penn Central Transportation Co. v.
City of New York,(27) the Court reviewed
the post-Mahon cases and clarified the approach it would take to
regulatory takings cases. Drawing upon those early cases, the Court announced
that the regulatory takings inquiry would require a fact-specific evaluation
that considered the character of the government action, the economic impact
on the property owner, and the extent of interference with the property
owners distinct investment-backed expectations with respect to the property.
No single factor would determine the outcome of a given case. These considerations
shared the common focus upon the impact of the government action upon the
property owner, rather than the focus upon the reasonableness of the law
or regulation which characterized the Courts the due process-equal protection
Evaluating Economic Impact and Expectations:
Whats the Property Interest?
Property ownership is often conceptualized
as a "bundle." Discrete property rights form separate strands which in
the aggregate form the bundle, or the overall property interest. These
distinct rights or strands have been described both as segments of a given
parcel of property (e.g., one parcel divided into mineral rights, surface
rights, and air rights) and as distinct actions that may be taken vis-à-vis
that property (e.g., the right to possess, sell, devise, and exclude others
from the property). In order to evaluate both the economic impact of a
regulation and the nature of the landowners expectations with respect to
a given parcel of property, a court must necessarily determine against
what property interest that impact is to be measured. Should a court measure
the economic impact of a regulation and a landowners expectations with
reference to one strand or the entire bundle? The Court answered this critical
question in Penn Central.
In Penn Central, New York City prohibited
the plaintiff from constructing a 50-story office building atop Grand Central
Station pursuant to the Citys historic preservation ordinance. The plaintiff
argued that this action completely destroyed the economic value of his
air rights, resulting in a taking for which compensation was due. Rejecting
this claim, the Court held that "...taking jurisprudence does not divide
a single parcel into discrete segments and attempt to determine whether
rights in a particular segment have been entirely abrogated" but focuses
upon "the nature and extent of the interference with rights in the parcel
as a whole."(29) While the plaintiff in
Penn Central might have been able to demonstrate a total economic
deprivation on use if the Court focused upon his discrete "right" to build
into the air, he could not demonstrate that the law had destroyed the value
of the entire property involved.(30) In
later cases the Court has affirmed this "whole property" rule.(31)
Consistent with this whole property rule,
the Court in Penn Central considered not only the residual value
of the property, but also the value of rights conferred upon the affected
property owners by the preservation statute itself. The Court noted that
transferable development rights ("TDRs"), which gave affected property
owners the right to add density to other parcels or sell those rights to
others, were valuable and should be factored into the equation.(32)
After Penn Central, TDRs became an important method by which state
and local governments could mitigate the economic impact of land use regulations,
and help ensure that those regulations would not give rise to a taking.(33)
Like the overall economic impact, the expectations
of the property owner are also considered with reference to the entire
bundle of property rights. The Court in Penn Central, for example,
based its finding in part upon the fact that the plaintiffs "primary expectation"
with regard to the terminal had been fulfilled. That is, the owners expectations
concerning the property had already been satisfied because he was putting
the property to a profitable use.(34) The
focus of New Jersey courts upon the remaining beneficial or economic uses
held by the landowner, rather than the "rights" the landowner has ostensibly
lost, is another way of asking whether a landowners expectations vis-à-vis
the property have been fulfilled.(35)
Notably, the Supreme Court has not gone
further to clearly set the criteria by which expectations should be judged.
Does a landowner who purchases property that is subject to development
restrictions have reasonable expectations to develop that property? What
if, although the property had not been subject to a particular limitation,
property of that kind was increasingly subject to regulation, such that
limitations could be anticipated by a purchaser? In Bernardsville Quarry
v. Bernardsville Borough,(36) however,
the New Jersey Supreme Court answered some of these questions.
The quarry owner in Bernardsville Quarry
was limited in his mining operations by a local ordinance enacted after
he purchased the quarry. Rejecting his takings challenge, the court found
that the quarry owners expectation to engage in unrestricted mining was
not reasonable considering the fact that mining operations generally were
subject to increasing regulation.(37) Because
the concern underlying the consideration of expectations is primarily one
of fairness, the approach of the New Jersey Supreme Court makes sense.
Property owners who cannot be expected to anticipate a given regulatory
restriction should have a better claim compensation than those property
owners who purchased the subject property either knowing they were operating
in a highly regulated field, or purchased property subject to a limitation
at time of purchase.(38)
Development of (Not Quite) Per Se
Rules: Regulations Authorizing Permanent Physical Invasions and Leaving
No Economic Value
Although the Court in Penn Central
did not elevate any one factor of the three-part test above the other,
the Court would later carve out two circumstances under which a single
factor could determine the outcome of a takings case. The Court announced
the first per se rule in Loretto v. Teleprompter Manhattan CATV
Corp.,(39) holding that a regulation
which authorized a permanent, physical invasion of property would automatically
trigger the Takings Clause requirement of compensation. In Loretto,
the Court found that a New York law which required landlords to install
a small cable box "took" plaintiffs property, entitling him to compensation.
According to the Court, where the government action is of the character
that it authorizes a physical invasion, a taking will be found without
reference to the economic impact of that regulation, or the extent of its
interference with investment expectations.(40)
The Court announced the second per se
rule in Lucas v. South Carolina Coastal Council,(41)
finding that where a regulation caused a total loss of economic value a
taking would be found without reference to the other Penn Central
factors. In Lucas, a South Carolina coastal protection law prohibited
the plaintiff-developer from improving his coastal property. The Court
announced that where the economic loss was total, the regulation would
trigger the Takings Clause and require that compensation be paid.
Both of these bright line rules, however,
came with broad exceptions. In Nollan v. California Coastal Commission,(42)the
Court explained that a regulation that authorizes a permanent physical
occupation of property as a valid condition to obtaining development permit
would not fall within the Loretto per se rule. The justification
for this distinction was that in the latter case, the property owner was
obtaining a discernible quid pro quo from the government in the
form of permission to engage in an activity within the governments power
to restrict. Such cases would be judged according to the Penn Central
And the Lucas Court itself announced
an exception to its economic value rule, finding that if the restriction
at issue could be said to be part of the title of the property by virtue
of principles of the states law of property and nuisance, a total economic
devaluation would not give rise to a taking.(43)
The basic premise of this exemption is that, due to prohibitions found
within state law, the right to engage in the proposed use of property never
became part of the owners title. Because the property owner never had a
right to engage in the activity barred by the regulation, he could not
claim to have had that right taken.(44)
The Courts treatment of due process-equal
protection challenges on the one hand, and takings challenges on the other,
then, could be viewed as falling into two analytically distinct categories.
The due process-equal protection cases focused upon the legitimacy of the
government action, asking whether the land use regulation was enacted for
a proper police power purpose, and whether the regulation furthered that
purpose. A wide range of government purposes were found to be legitimate
expressions of the police power, and courts accorded state and local officials
wide latitude in designing laws and regulations to accomplish those valid
Takings cases, on the other hand, generally
presumed that the government action was legitimate, and focused upon the
impact of that government action upon the property owner. In other words,
it was the impact upon the property owner that turned an otherwise legitimate
government action into one that would be illegitimate unless accompanied
by compensation. The takings inquiry balanced the character of the government
action, the economic impact on the plaintiff, and the extent to which the
action interfered with his reasonable, investment-backed expectations.
When that inquiry showed the burden upon the landowner to be too great,
government payment of compensation would be required if the regulation
was to remain in effect.
In practical terms, only those regulatory
takings cases that felt like the outright physical taking of property were
likely to be successful. The first analogous case was posed by regulations
that authorized the physical occupation of private property. Here, a taking
likely would be found unless the landowner received some fairly direct
quid pro quo from the government in exchange for bearing the burden
of occupation. The second analogous case was posed by regulations that
had the effect of totally destroying the economic use of a parcel of property.
In this case, a taking likely would be found unless a review of states
law of property and nuisance revealed that the owner did not actually possess
the right to put his property to the prohibited use.
Whether based upon the Due Process and
Equal Protection Clauses or upon the Takings Clause, a landowner seeking
to overturn a land use regulation or obtain compensation for the burden
on constitutional grounds had a difficult case to make. The landowner either
had to show that the government had acted unreasonably by subjecting him
to that regulation, or had to show that the impact of that regulation was
significantly and especially burdensome.
While the Court would at times clearly
maintain the distinction between the requirements of the Due Process and
Equal Protection Clauses on the one hand and the Takings Clause on the
other,(45) at times it would blur that
distinction. So, in Penn Central, for example, Justice Brennan conducted
a lengthy assessment of the purposes underlying the New York historic landmark
law even though the plaintiff focused his attack of that law under a taking,
rather than due process-equal protection theory. Many other takings cases
contained a similar inquiry into the validity of the government action.
Finally, without explanation, the Court absorbed the due process-equal
protection inquiry into a new formulation of the takings test in Agins
v. City of Tiburon.(46)
While the new formulation adopted in Agins
was conceptually confusing, it initially did not expand the likelihood
that a government action would be found to be a taking. That is, it did
not expand potential government liability. Drawing upon the rule in Agins,
however, the Court in later cases deviated from the traditional rule of
according deference to police power regulations, adopting a somewhat more
meddlesome standard of review. In effect, those cases increased the chances
that a government act would be deemed a taking, and hence expanded potential
The Agins Test
In Agins, the plaintiff argued that
a municipal open space zoning ordinance was a taking, entitling him to
compensation. Rejecting that claim, the Court formulated a new takings
test holding that an ordinance would not give rise to a taking unless the
ordinance "does not substantially advance legitimate state interests ...
or denies an owner economically viable use of his land." (47)
The Court cited a due process case for the first part of its test,(48)
and a takings case for the second. (49)
According to the first part of this new test, an invalid exercise of the
police power could trigger the Takings Clause requirement of compensation.
Apart from the cloud the Court cast over
the status of its three-part Penn Central test, the Courts new formulation
was perplexing because made little sense conceptually.(50)
The theory that an invalid exercise of the police power could be sustained
if the government paid compensation was illogical.(51)
How could the government pay to take an arbitrary action that would by
definition be unconstitutional under either the Due Process or Equal Protection
Clauses? In effect, the Court seemed to be saying that officials could
act beyond their power if they were willing to pay.
While conceptually confusing, the Courts
incorporation of the due process-equal protection inquiry into its regulatory
takings analysis initially had little practical impact. The Court accorded
the same deference to the judgment of government officials when evaluating
the reasonableness of land use regulation in a takings case as they would
in a due process or equal protection case. Since the remedies accorded
to the successful due process-equal protection plaintiff were almost identical
to those accorded the takings plaintiff,(52)
land use planners were not faced with new potential liability.
In two subsequent cases, however, the incorporation
of the due process-equal protection inquiry into takings analysis actually
had the effect of expanding potential government liability. With no precedential
support, the Court would later find that the Takings Clause required closer
scrutiny of the reasonableness of land use regulation than was required
under the Due Process or Equal Protection Clauses. Today, while the Court
still looks upon the purposes to be served by government police power regulations
with deference, it will more carefully scrutinize whether a regulation
will give effect to that purpose. That is, the Court will require that
the regulation bear a close nexus to the problem it is meant to address
both in kind (does it address the specific type of problem) and in degree
(does it address the problem is a way proportional to that problem).
Heightened Scrutiny for Land Use Regulations
In Nollan v. California Coastal Commission,(53)
the plaintiffs were required by the California Coastal Commission to grant
a public easement across their beach front property as a condition for
permitting the development of a three-story house to replace their small,
existing bungalow. The Commission justified the easement condition primarily
upon the rationale that the construction of the new home would impair the
ability of the public to view the beach. Declining to accord deference
to the judgment of the state body, the Court found that while the purpose
of the condition was valid, the condition worked a taking because it "utterly
failed" to achieve that purpose. According to the Court, the condition
did not bear a nexus to the purpose it sought to achieve because while
it would improve the public the view of the beach from the beach, would
not improve the view from the landward side of the plaintiffs home.(54)
The Court introduced the second novel element
of its heightened review in Dolan v. City of Tigard.(55)
Reaffirming Nollans rule demanding that regulations and conditions
designed to further a proper police power purpose be of the same kind or
nature of the problem meant to be addressed (e.g., a problem with visual
access addressed by a condition improving visual access), the Dolan
Court added that those conditions must also be 'roughly proportional
to the harm those conditions are meant to ameliorate.
In Dolan, a hardware store owner
sought a permit to double the size of her store located in a busy business
district and abutting a local stream. The local land use board conditioned
the plaintiffs permit on two things. First, the plaintiff would not be
permitted to construct any structure in the floodplain portion of her property,
and would be required to dedicate that property to the city for inclusion
within its public greenway system. The land use board based this requirement
upon the finding that the expansion of the plaintiffs store and parking
lot would increase stormwater runoff from the property, raising potential
flooding problems should development be permitted to encroach upon the
stream. The dedication of that property to the city would further the protection
of open space, a stated purpose of its local land use law.
Second, the plaintiff would be required
to dedicate a small portion of property on the periphery of the floodplain
property for a bicycle path. This requirement was based upon a city-wide
transportation study documenting traffic congestion in the business district
which showed that walking and biking paths held the potential to reduce
that congestion. The land use board based the imposition of this condition
upon a specific estimate of the additional congestion which would be caused
by the expansion of the plaintiffs store, and the finding that the bike
path could lessen that congestion.
While the Court found that both conditions
were related in kind to the purposes they sought to achieve and so satisfied
Nollan, it found that both conditions still gave rise to a taking.
First, while the Court agreed that a bicycle path would generally serve
the purpose of lessening traffic congestion in the city, it disputed whether
the dedication requirement in the plaintiffs case would further that purpose.
Because the board had not made a specific finding that the additional traffic
caused by the expansion of the plaintiffs store would be lessened by the
construction of a bicycle path, that condition worked a taking. According
to the Court, while local land use boards are not required to make "precise
mathematical calculations" to support such conditions, they must make "some
effort" to quantify findings in support of such dedications.(56)
Second, while the prohibition upon placing
structures within the floodplain portion of the property was related in
degree to reducing the potential flooding which would otherwise result
from the expansion of impervious surfaces on the site, the Court found
that the condition went too far when it required the plaintiff to dedicate
that property to the city for use in its public greenway system. The dedication
feature of the condition went too far, according to the Court, because
the land use board had made no findings concerning the impact the expansion
would have upon available open space in the city. Without such a finding,
the only problem arising from the plaintiffs expansion to be addressed
by the board was the potential flooding problem; a problems that was adequately
addressed by the prohibition on building in the floodplain. Rejecting the
dedication portion of the condition, the Court held that such conditions
must be 'roughly proportional to the problem they are meant to address
in order to avoid takings liability.(57)
Constitutional Challenges to Land Use
Regulation After Agins, Nollan, and Dolan
Agins, Nollan, and Dolan
essentially rendered due process-equal protection challenges to land use
regulations obsolete. In the wake of these cases, a landowner challenging
the reasonableness of a land use regulation has an easier case to make
under the Takings Clause because the courts will more closely scrutinize
the land use restriction in a takings cases. Because the remedies due the
successful due process-equal protection and takings challengers are essentially
the same, property owners have no reason to pursue a tougher to win due
process-equal protection challenge. As a result, today the landscape of
challenges to land use regulation based upon the Constitution should be
dominated by the Takings Clause.
Although a confused area of the law, a
number of clear rules can be discerned from takings cases. First, regulations
that feel like the outright physical taking of property are most susceptible
to successful landowner challenge. The first analogous case is posed by
regulations that authorize the physical occupation of private property.
These cases are decided without reference to the economic impact of the
limitation or the investment expectations of the landowner. So, in Loretto,
a taking was found even though the installation of the cable box had little
or no effect upon the economic value of the apartment building. Such regulation
can survive legal challenge so long as the occupation is authorized as
a valid condition to development that is tailored to harm it is meant to
address. That is, the condition should reveal that the landowner has received
some fairly direct quid pro quo from the government in exchange
for bearing the burden of occupation.
The second analogous case is posed by regulations
that have the effect of totally destroying the economic use of the property.
Courts engage in this inquiry by viewing the entire unit of property owned
by the landowner, and the remaining uses to which the property may be put.
Tradeable development rights will also be considered in this analysis.
If the property owner may continue to put the property to productive use,
or receives valuable property rights as part of the regulatory program,
he is unlikely to win a takings claim. And, even if a regulation denies
the owner of all use, he may lose his takings claim if the state law of
property or nuisance would have prohibited that use. In the rare case that
deprivation in use is total, and has no justification in state law, a takings
plaintiff will be successful.
The Court in Agins, in a decision
based upon a faulty legal premise, specifically incorporated the due process-equal
protection inquiry into the reasonableness of land use regulation into
this takings analysis. The premise that a land use regulation beyond the
police power of state or local officials to enact could give rise to a
taking made little sense. Arbitrary actions are simply beyond the power
of the government, and paying to take such an action does not transform
an unconstitutional action into a constitutional one. Nollan and
Dolan at once reinforced the presence of this inquiry in takings
cases, and ratcheted up the level of scrutiny courts would be required
to lavish on the purposes and scope of land use regulations.
In the wake of those cases, land use planners
must be prepared to demonstrate that a given land use regulation is both
related in nature to the problem meant to be addressed, and that the regulation
is a roughly proportional way of tackling that problem. In order to allow
courts to conduct this more careful inquiry, land use planners should base
their decisions upon some rough empirical demonstration that the regulatory
imposition will actually further the purposes it sought to achieve. Ultimately,
these cases do not severely limit the ability of state and local officials
to regulate land use. Rather, they require that land use planners more
carefully document the rationale underlying limitations on the development
Precisely because the Constitution affords
officials relatively wide latitude to protect open space and environmentally
sensitive lands, proposals that would legislatively reduce or eliminate
that latitude have become commonplace.(58)
President Reagan brought the issue to the national agenda in 1988 with
the enactment of a "takings" executive order. A now oft-quoted passage
from Order and Law: Arguing the Reagan Revolution, A First Hand Account
by Charles Fried, the U.S. Solicitor General at that time, indicates both
the origins and the purposes guiding the effort to enact "takings" legislation:
"... Attorney General Meese and his
young advisors -- many drawn from the ranks of the then fledgling Federalist
Societies and often devotees of the extreme libertarian views of Chicago
law professor Richard Epstein -- had a specific, aggressive, and it seemed
to me, quite radical project in mind: to use the Takings Clause of the
Fifth Amendment as a severe brake upon the federal and state regulation
of business and property. The grand plan was to make government pay compensation
for a taking of property every time its regulations impinged too severely
on a property right -- limiting the possible uses for a parcel of land
or restricting or tying up a business in regulatory red tape. If the government
labored under so severe an obligation, there would be, to say the least,
much less regulation."
Bearing resemblance to the Constitution
in name only, the "takings" legislation sparked by this effort would take
us where the courts have refused to go by requiring the public to pay property
owners where regulations have a small impact on the overall property interest
at issue, irrespective of what the property owner knew when he purchased
the property. There are two basic types of takings legislation: assessment
As the name suggests, assessment bills
require the government to conduct analyses of whether a law or regulation
may work a taking under the Fifth Amendment as a prerequisite to enacting
the regulation. Typical assessment proposals require the government to
study whether the limitation is likely to effect a taking, alternatives
to the regulation that would have a less adverse impact on private property
rights, and estimate the cost of compensating property owners. Many proposals
allow the resulting agency analyses to be challenged in court for noncompliance
with the standards set forth in the law.
The structure of assessment legislation
appears to be patterned after the National Environmental Policy Act ("NEPA").(59)
Like assessment legislation, NEPA is a short statute that requires the
government to evaluate the impact of its actions, and which opens those
evaluations up to judicial challenge. Unlike assessment legislation, however,
NEPA is not an empty, abstract study requirement because it asks the government
to assess the environmental impact of a specific government action or project.
Assessment legislation, by contrast, is not triggered by the application
of a specific rule to a specific property owner; rather, it is triggered
by promulgation of a general rule. Because the question of whether or not
a given regulation will effect a taking requires a fact specific inquiry
into the impact of the regulation upon a specific and unique property interest,
it is unlikely that a takings assessment would ever uncover useful information.
Instead of providing that information, takings assessment legislation appears
to be designed to offer landowners a means by which to block laws and regulations
that protect the public health and safety.
Compensation legislation requires the government
to pay landowners any time a limitation on land use diminishes the value
of land by a certain percentage.(60) Many
proposals give the landowner the option of requiring an outright government
purchase if the devaluation exceeds 50 percent. The main innovations of
compensation legislation is that the impact of a given land use regulation
is measured only against the limited portion of property, and landowner
expectations are not considered. It is these innovations which render compensation
bills such a costly proposition(61) and
ensure that taxpayers would not get the benefit of all the government actions
which may have increased the value of the property at issue.
Both of the "takings" bills pending in the 1996 Congress (S. 605 and H.R. 925), for example, would require the taxpayers to pay landowners where the landowner can show that a single limitation devalued a limited part of the property by some small percentage, and do not consider whether the landowner purchased property already subject to a limitation. Under both of these bills, the owner of a 90 acre parcel of property who is permitted to build a shopping center and parking lot on 80 acres, but not permitted to develop 10 acres of wetland on that property would be owed compensation because devaluation would only be measured against the 10 acre wetland parcel. By focusing upon one government rule (the wetland limitation) and a discrete part of the overall property (the 10 acres of wetland) these proposals fail to consider the extent to which other government actions may have increased the value of that overall 90 acre parcel. Taxpayer givings like a new interchange near the shopping center or subsidized flood insurance to the landowner, which greatly increase the value of that property, are not figured into the equation under "takings" proposals. (62)
"Takings" proposals would not only cause
landowner windfalls at the taxpayers expense, but they would operate to
the disadvantage of precisely those individuals that have become the rhetorical
justification for adopting an extra-Constitutional takings rule. Proponents
of "takings" legislation argue that a takings rule is necessary to protect
the "little guy" from an overzealous government. They argue that if the
government faces liability each time it regulates, it will be far less
likely to regulate, reducing the burdens currently placed on small landowners.
But land use regulations like those protecting open space and environmentally
sensitive land benefit the overwhelming majority of small property owners
in the United States.
Homeowners, the "little guys" for whom
the proponents of takings legislation claim to speak, make up 75 percent
of the total number of private property owners in America but hold only
2 percent of privately held land. That means that your typical small property
owner owns some land in connection with his home. Beyond the construction
of a home, this property owner does not seek to "do" anything with his
land. That is, he does not take any action that would trigger the right
to payment under a compensation bill. Actually, according to economic literature,
land use controls and limitations maintain or increase the value of this
By contrast, 3 percent of total private
property owners in America--generally large real estate development, mining,
timber and agricultural interests--own over 80 percent of private land
in the U.S. These landowners, rather than the "little guy," are affected
by limitations on land use and, as a result, would be entitled to payment
under a compensation bill. As government budgets for paying these large
landowners run dry, agencies will face the choice of requesting more federal
dollars to enforce the law, or not enforcing the law at all. Despite the
rhetoric of "takings" groups, small landowners and the public will be left
to pay the price, whether in the form of increased taxes or lower property
The Constitutions property protections
are designed to ensure that property owners are not unfairly burdened by
government actions. In keeping with that concern, courts ask whether a
given government restriction is a fair and reasonable exercise of the police
power. So long as a given land use restriction is related in kind and degree
to the problem meant to be addressed, the restriction will likely be regarded
as a reasonable exercise of that power, and will survive constitutional
challenge. And, even when that restriction is itself a reasonable exercise
of that power, courts will still ask whether it is fair to ask a particular
landowner to bear the burden of that restriction. Only in the unusual case
where that restriction leaves the property owner with no economic use of
the property, or causes the property owner to suffer a physical invasion
of his property, may the Constitution require that compensation be paid.
The Constitutions carefully drawn protections are designed to balance the need for laws and regulations which preserve and protect the natural environment and our communities and the individuals right to hold private property. "Takings" legislation would upset this careful balance, elevating the interests of a small number of private property owners above the interests of most private property owners and the community at large in protecting the environment and the quality of life.
Open space is essential for modern life.
It can be a breathtaking view from a mountaintop in Sussex County, a small
urban park in Newark, a quiet garden in Trenton, a walking and jogging
pathway in Morris County, rolling farmland in Hunterdon County, a wildlife
observation center in Gloucester County, or a sea of marshland in Cumberland
County. Whatever form open space takes, it provides sustenance for humanity
and for all living things.
In densely populated New Jersey, we understand
the urgency of open space preservation. Once developed, land cannot be
returned to its natural state.
There are many reasons to preserve open
Many conservationists encounter the argument
that their town will lose tax ratables if open space is purchased and taken
off the tax rolls, or if development restrictions are placed on it. This
paper shows the positive economic values of preserving open space. Among
Open Space Preservation
Is Our Responsibility
Providing open space is a major goal
of the Municipal Land Use Law (MLUL), which regulates land use in New Jersey.
Three of the MLUL's stated purposes (N.J.S.A. 40:55D-2) relate to open
space. The MLUL directs towns to:
Preserving open space has the long-range
benefit of avoiding future costs. Communities and counties across the state
and nation are finding that single-family residential tax ratables don't
cover the costs of municipal services, community infrastructure and local
schools. Studies show that for every $1.00 collected in taxes, residential
development costs between $1.04 to $1.67 in services -- and these costs
continue forever, generally increasing over time. Even including the initial
cost of acquisition, open space is less costly to taxpayers over both the
short and long term than development of the same parcel. The major public
costs to preserve natural areas are finite, often paid by a bond or loan
over 20 years.
A Burlington County Office of Land Use
Planning study of Mansfield Township shows that for every $1.00 in taxes
that a new residential unit generates, it requires $1.48 for services.
Conversely, farmland costs $0.27 in services for every $1.00 it generates
in taxes. Each new residential unit has a net negative fiscal impact of
$1,866 per year while preservation of the same land through the county
farmland preservation program would result in a one time cost of $3000.2
In a similar study, East Amwell Township
(Hunterdon) found in 1994 that for every dollar raised from residential
development, it spent $1.12 on public services. For every dollar raised
by farm and open land, East Amwell spent 30 cents. For every dollar raised
by commercial uses, East Amwell spent 27 cents (33 cents when utility and
gas line revenue is discounted).3
In recent years several New Jersey municipalities
have analyzed the fiscal impact of residential development (see Bibliography).
Washington Township (Morris) serves as
an example of the financial impacts to the community of school costs alone.
The Township purchased the development rights to preserve a farm after
analyzing the costs and benefits to the school district's operating budget.
It found that buying the development rights cost taxpayers less than allowing
a new residential subdivision. The 1994 Washington Township study did not
look at the development's capital and service costs, like new schools and
The Township's zoning ordinance would have
permitted 300 units of small, clustered housing on the 720-acre property.
The average cost per household to the school district, assuming one student
per home, is $5,568. The average residential property tax, excluding county
taxes, is $2,172. Given these facts, Washington Township concluded:
In Mendham Township (Morris) a citizens'
group opposed to the development of 98 houses on a former Boy Scout reservation
prepared an economic analysis in 1993. The citizens' group found that "at
the current tax rate in Mendham Township, only senior citizens, residents
with no public school children, or homes assessed for $850,000 or more
actually pay for themselves." Noting that costs for services for a development
never end, the citizens' group showed that the project would increase the
taxes for Mendham's property owners by an average of $385 annually.
In contrast, preservation of the property,
which the group estimated at $4 million, would result in an average annual
tax increase of only $104 per household. This assumes a 25 percent Green
Acres grant and a 75 percent Green Trust loan at 2 percent for 20 years.
The study showed total costs to Mendham Township taxpayers of $13.4 million
with the proposed development and $3.6 million with the land preserved
using Green Acres.5
A 1994 Mendham Township Committee study
assumed an $8 million cost to purchase the property with an average annual
tax cost of $377 per household. The 20-year cost to taxpayers was $13.1
million, which included maintenance, local bonding, and loss of property
taxes. But the Mendham Township study ignored the never-ending costs of
services for the development and seemed to assume that costs would magically
stop after 20 years.6
In 1994 the staff of the Pinelands Commission
compared local taxes in 13 towns within the Pinelands Protection Area,
where there is substantial farmland and public open space, with 13 similar
towns outside the Pinelands. The results showed that living inside the
Pinelands area costs the residents less. The average per capita tax increase
from 1970 to 1990 was 42 percent lower in Pinelands towns than in non-Pinelands
towns. In 1990 the average tax bill in the Pinelands towns was $1,928,
while in the non-Pinelands towns it was $2,413. Pinelands residents pay
6.0 percent of their income on local taxes while non-Pinelands residents
pay 6.9 percent.7
Although many municipalities believe that
the best ratables are commercial and light industrial, even these can have
unforeseen costs. A 1992 study commissioned by the Great Swamp Watershed
Association concludes that the addition of commercial ratables in Morris
County's 39 towns has failed to result in lower taxes.8
Comparing towns with a high percentage
of commercial ratables to less commercially developed communities, the
study finds that "ratable rich" towns, contrary to expectations, have found
no tax relief. The 13 municipalities that ranked highest in the addition
of ratables pay 57 percent of the local taxes. Despite adding $4.2 billion
in commercial and industrial ratables over 20 years, these communities
did not see a reduction in their costs of running local government. Also,
contrary to expectations, the tax rate for residential owners in ratable
rich communities did not go down.
There are several reasons for these findings.
The courts have increasingly ruled in favor of companies that appeal for
tax relief. In addition, in five to ten years, employees move in and require
services. Traffic and pollution increase so roads need to be widened and
local quality of life deteriorates leading to lowered property values.
Over time commercial real estate is depreciated while residential real
estate increases in value, changing the balance of property tax assessments.
Also, office buildings don't change hands as often as houses do, so their
taxable value doesn't come as close to inflation. Thus the proportion of
taxes paid by commercial ratables generally decline over time.
In Keeping Our Garden State Green: A
Local Government Guide for Greenway and Open Space Planning, author
Linda Howe points out that "commercial development may have hidden municipal
costs. Such development, for example, may affect state requirements for
low and moderate income housing. (Changes in equalized non-residential
valuation is one factor used by the Council on Affordable Housing in determining
municipal obligation.) Or it may necessitate an increase in spending for
police and fire protection or traffic control, sewage treatment, or water
supply." In some communities, tax revenues from new commercial developments
also affect state aid allocations to schools, resulting in no net change
in local revenue. (Less wealthy communities, which rely on substantial
state school aid, will experience a reduction. Wealthier communities, which
don't rely heavily on state school aid, may see little change.)9
The N. J. Office of State Planning agrees:
"Many communities view the capture of non-residential ratables as an important means of stabilizing or even reducing local property tax rates. While this may be true for some communities for short periods of time, the tax implications of non-residential ratables, particularly retail, are often considerably more complex than anticipated. New retail development . . . require(s) outlays for public services such as police, fire, courts, road maintenance and traffic control. In addition the availability of retail services often stimulates residential development nearby, requiring additional public services."
Decreases in state aid for schools and
municipal services and increases in county and regional school taxes may
offset increased revenues.10
If neither residential nor commercial development
provide the ratables that a municipality needs, what should be the source
of the funds? Dependence on property taxes to fund schools and municipal
services forces communities to chase ratables in the belief that development
will bring increased revenues. In fact, while the development may increase
municipal revenues, it brings costs that are higher than the revenues themselves.
The ratable chase results in land being consumed in anticipation of higher
property tax revenues. If another revenue source made the difference between
revenues and the cost of services, the municipality could pursue the land
use plan it determines best for its future. It could plan for a mix of
land uses -- high, medium and low income housing; commercial; retail and
The following worksheet will help you analyze the costs of development vs. the costs of preserving of open space:
ECONOMIC ANALYSIS WORKSHEET
Certain general information
is necessary for making the analysis. Local permutations abound. Discuss
figures with local administrators and be sure that all assumptions are
acceptable. A word of caution, a fiscal impact analysis doesn't address
secondary or long-term impacts. The following is based on the work of David
Nissen (Rutgers University). ANJEC's Resource Center has his analysis for
Cranbury, NJ, with notes, comments, assumptions and uncertainties.
* Number of households (Source:
recent tax information) a. ___________
* Number of students currently in public schools (Source: School Board) b. ___________
* Number of students school system can accommodate before new
facilities are needed (Source:
School Board) c. ___________
* Number of students generated by each housing unit: d. __________
(Source: School or planning board figures. A large single family house generally
produces 1.0-1.5 school children; a townhouse produces 0.3 school children;
senior citizen housing, none; modify planning estimates using your town's actual data.)
* Cost per student: e.___________
(Source: School budget. Add capital budget and operating budget; divide by
the number of student in the system.)
* New facility cost: f.___________
(Once the threshold is passed, this figure comes into play. Capital outlay is
roughly estimated-- Nissen's figures follow: State requires 100 square feet of
school space per student; approximate cost per square foot = $100; capital cost per
student (100 X $100) = $10,000; capital charge factor based on 40 year mortgage at
8 percent - if inflation occurs, this charge factor will rise. This produces an annual
cost per student of $420. Since new facilities are built with room to spare, a more
accurate figure can be estimated after conversation with school administrators.
Nissen uses a figure of $1500.)
* Average cost of municipal services per household: g.__________
(Source: Municipal Budget. Subtract non-property tax revenues from
total outlay and divide by the number of households. This number may be
modified to reflect discussions with fire and police regarding at what point
new facilities or equipment might be needed. Recognize that not all portions
of the municipal budget vary directly with population increase or decrease.)
* Average market values of new housing unit: h.__________
(Source: tax information from other recent new units; real estate estimates)
* Effective municipal assessment rate: i. _________
(Source: local tax assessor)
* Municipal tax rate: j.
* Educational outlay:
students per housing unit (d)_____ X cost per student (e)_____ = $________
new facility cost per unit
(f)_____ X students per housing unit (d)____ = $________
total 1. ________
* Cost of municipal services per house (g): 2. ________
* Total municipal cost of one new housing unit
(line 1 + line 2) 3. _________
* Municipal tax revenue for one new unit:
Calculate by multiplying average market
value (h) X effective assessment rate (i)
X municipal tax rate (j)
* Net annual burden or revenue of an additional
new unit: Subtract line 4
from line 3 5._________
To compare the costs of residential development
with the cost of a Green Acres loan, a municipality has to determine the
debt service on a 20-year loan at 2 percent interest. Your township administrator
or financial officer can help. Costs for farmland preservation vary with
each municipality's contribution and level of indebtedness. Your county
farmland preservation program can help here.
In making your case, emphasize that the
obligation to pay off loans or bonds for preservation is finite. For example,
a Green Trust loan will be paid after 20 years. The costs of servicing
development are unending and will increase over time.
County Farmland Preservation Programs
Cape May 609-465-1086
Somerset 908-231-7000 ext. 7540
Natural systems such as wetlands and floodplains
provide water purification and help prevent floods. Wetlands naturally
filter and store water and help maintain water supply by recharging groundwater.
Undisturbed floodplains absorb high water. Other open space benefits include
soil conservation, preservation of biological diversity, and air purification.
In the Passaic River Basin in New Jersey,
local governments have allowed a high level of development along the river.
Residents' safety is at risk, and the public cost for property damage claims
has been tremendous. For example, in 1984 flood damage resulted in three
drownings and nearly $400 million in property damage. Proposed remedies
to these problems range from a federal and state subsidized $2.2 billion
tunnel to less expensive property buy-out plans. To buy 774 homes in the
most hazardous parts of the floodplain would cost between $150 million
(Passaic River Coalition estimate) and $200 million (Green Acres Program
New York City Mayor Rudolph Guliani, in
announcing a water rate increase of 1 to 2 percent that will allow the
city to buy more lands in sensitive upstate watershed areas, said that
the increase "is a tiny fraction of the $8 billion that would have to be
raised if increasing pollution forces New York City to build a filtration
plant." The New York City Department of Environmental Protection is working
to "minimize the introduction of pathogens and pollutants" into streams
and reservoirs by preserving buffers in sensitive watershed lands.12
Protecting the Highlands in northwest New
Jersey would insure the same kinds of benefits. Covering 750,000 acres
from the Delaware River south of Phillipsburg northeast toward the Hudson
River, the Highlands supply drinking water to half the state's residents.
Although we are losing up to 10,000 acres a year to suburban and commercial
development, the major Highlands watersheds are relatively free of pollution.
Sedimentation, increased runoff, metals and road salts that come with suburban
development are serious threats to the water supply. The New Jersey Conservation
Foundation found in 1992 that "the cost of constructing water treatment
plants is likely to match or even exceed the cost of preserving watershed
lands. . . . And the significant expense involved in operating such facilities
Many studies have looked at changes in
the value of property adjacent to open space. Although open space used
for active recreation does not guarantee an increase in nearby property
values, natural areas and greenways with trails usually do make neighboring
houses more valuable. As property values increase, tax assessments eventually
reflect the increased value, helping offset property tax loss from preserved
open space. To find out whether your community assesses houses next to
open space at a higher value, consult your tax assessor.14
A 1990 National Park Service publication
reviewed dozens of studies on the economic effects of rivers, trails and
greenways (linear open spaces that link recreational, cultural and natural
areas). It found that "Property value increases are likely to be highest
near those greenways that:
The National Park Service resource book provides detailed guidance on how to analyze the effect of open space on your community's property values.
A classic example of open space increasing
adjacent property values is Manhattan's Central Park. Although New York
City receives no property tax revenue from the Park, it gets a high level
of property tax revenue from adjacent properties on the upper east and
west sides of Manhattan, as well as social and recreational benefits for
In 1979, Newton, Massachussetts revived
"betterment assessments," a 19th century tool, to help the municipality
finance a recently acquired golf course. Owners of abutting property paid
up to $4,000 (payable over 20 years). The money raised by these assessments,
when added to funds from a federal grant and funds raised by the sale of
two small portions of the property for condominium development, enabled
the town to preserve the land permanently.17
Birding, hunting, fishing, hiking, camping
and canoeing depend on forests and woodlands, wetlands, and clean streams.
Tourism in New Jersey generates $4 billion in revenue, making it our second
largest industry. While the shore areas generate the bulk of this, there
is substantial tourism throughout the state. More than 12 million people
visit New Jersey's state parks and natural areas each year, with an estimated
economic impact of several billion dollars.18 The N.J. Division
of Fish, Game and Wildlife found in 1991 that "Wildlife Recreation," such
as fishing, hunting, and birding, results in annual retail sales of $1.26
billion, generates over 32,000 jobs, and contributes state tax revenue
of $95 million.19
Local governments borrow money to fund
expensive capital improvements, such as schools, roads and bridges, water
and sewer projects, by issuing long-term general obligation bonds. The
cost of any debt is interest. The interest rate on a municipal bond is
based on a score the municipality receives from municipal bond analysts,
based on the government's level of debt and its ability to meet its financial
obligations. Many suburban governments that had mushrooming growth in the
1980's have high debt levels in the 1990's.
For instance, on the outskirts of Washington,
DC, Loudon County (VA), Prince William County (VA), and Howard County (Maryland),
grew by over 50 percent in the 1980s. In Maryland and Virginia, county
government regulates land use. During the building boom, these counties
increased debt to provide services at pace with growth. But when the fast
growth of the 1980s ended and property values began to drop, the ratio
of debt service as a percent of revenue increased. Bond rating firms begin
to get nervous about a local government's ability to manage its finances
when debt servicing climbs above 10 percent of revenue. In all three counties,
the ratio is expected to approach, or pass, 10 percent between 1995 and
2000, at which time their bond ratings may drop.20
The Costs of Sprawl
A 1974 Real Estate Research Corporation
study identifies economic costs of sprawl and lists a dozen other costs:
Environmental costs - air pollution,
water pollution, noise, vegetation and wildlife, visual effects, water
and energy consumption;
Personal Costs - use of discretionary
time, psychic costs, travel time, traffic accidents, crime.21
Sprawl development spreads housing and
jobs over large land areas, consuming forests and farmland six times faster
than the population growth rate. According to the Regional Plan Association,
population in the New York-New Jersey metropolitan area grew by only 2
percent between 1970 and 1995, yet we lost 30 percent of our fields and
forests. Since 1950 New Jersey has lost more than half its farmland --
nearly 1 million acres. And the number of farms has dropped by two-thirds
from 26,900 in 1950 to 9,000 in 1995.22
And according to a 1992 Rutgers University's
Center for Urban Policy Research (CUPR) study, New Jersey lost 25 percent
of its tidal marshes between 1953 and 1973 and only 61 percent of its original
wetlands remain.23 The results are costly - -for citizens, towns
and the state. A 1978 Tufts University economic study found that wetlands
are worth between $152,535 and $190,009 per acre considering their value
for flood prevention, pollution reduction, and recreational activities.24
In today's dollars, wetlands are even more valuable.
In 1986 the New Jersey Legislature enacted
the State Planning Act (N.J.S.A. 52:18A-196 et seq.) after
recognizing that the social, environmental and fiscal impacts of sprawl
development were diminishing the State's well- being. The Act established
the State Planning Commission, charging it with developing the New Jersey
State Development and Redevelopment Plan. The State Plan is a guide, designed
to help New Jersey municipalities plan for growth without sprawl. It encourages
new growth to occur in centers, compact forms of development with a core
of residential, commercial and service development that accommodates pedestrians,
automobiles and transit. For the State Plan to succeed, such concentrated
forms of development must be surrounded by preserved open space and farmland
and linked to an aggressive urban revitalization effort.
Development in centers can:
Savings result from the ability to use
excess capacity in sewers and school facilities and from needing fewer
miles of roads, water, and sewer lines.
The Center for Urban Policy Research documented
these savings in a 1992 study. The Center found that New Jersey could save:
The same study estimated the impacts of
sprawl versus center- oriented development for 12 municipalities, including
Chesterfield Township in Burlington County. By channelling its expected
growth toward existing centers between 1995 to 2020, Chesterfield can save:
This Resource Paper aims to help environmental
commissions and groups save open space by carefully documenting the economic
benefits of preservation. Citizens can use this information to help sell
the idea to local decision makers.
To save open space successfully, local
advocates will need to work on many other tasks and prepare for an open
space preservation campaign. ANJEC has many books and pamphlets on other
aspects of open space protection: planning studies including natural resource
and open space inventories, analyses of "build-out" showing the potential
for development under current zoning, and preparation of open space or
A public education campaign helps develop
support. Many towns conduct public opinion surveys, hold community meetings,
and organize field trips. Picking a special site or goal can help focus
a community's attention. Organizing a committee of community leaders is
a key to success.
Open space advocates should be knowledgeable
about the many methods for conservation of open space: conservation easements,
greenway plans, outright purchase or donation, changes in zoning, farmland
Sources of funding for open space preservation
include the state Green Acres program, which has spent almost $1.5 billion
on land preservation since its inception in 1961, county and local open
space trusts funded through property taxes, the state farmland preservation
program, and local bonding.
For additional information:
* For general guidance and sample studies
and surveys, call the ANJEC Resource Center at 973-539-7547, fax 973-539-
* Ask Green Acres (609-588-3450) for its
guidelines and criteria.
* County Planning Departments can supply
information on Farmland Preservation and county open space trusts:
Atlantic County 609-343-2229
Cape May County 609-465-1086
Gloucester County 609-863-6661
Mercer County 609-989-6545
Monmouth County 908-842-7000 x215
Morris County 201-829-8120
Somerset County 908-722-1200
Warren County 908-475-6531
* For background and guidance in establishing
a municipal or county open space trust, ask the Trust for Public Land for
a copy of its Handbook for Public Financing of Open Space in New Jersey
* For information on more than 80 land
trusts and organizations in New Jersey active in land preservation, contact
the New Jersey Conservation Foundation (908-234- 1225).
These additional references may be helpful
to citizens and environmental commissions working on open space conservation
projects. These publications are available for review at the ANJEC Resource
Center, 300 Mendham Road, P.O. Box 157, Mendham, N.J., 07945. A few are
available for purchase or loan. Call ANJEC at 973-539-7547 fax 973-539-7713
for further information.
ANJEC, Economic Benefits of Open Space/Costs
of Development: An Annotated Bibliography, 1996, with regular additions.
Over 50 studies and reports.
Arendt, Randall Arendt, Elizabeth A. Brabec,
Harry L. Dodson, Christine Reid, Robert D. Yaro, Rural by Design,
1994. A comprehensive text with numerous techniques for environmentally
sensitive planning designed to preserve open space and small town character.
An excellent reference.
Land Trust Alliance, Economic Benefits
of Land Protection, 1994. Collection of articles describing the economic
benefits of land conservation and costs of development. Bibliography and
National Trust for Historic Preservation,
Saving America's Countryside: A Guide to Rural Conservation, 1989.
Land protection techniques, how to analyze and inventory rural lands, how
to manage a campaign, protecting private property, community education.
Nelessen, Anton, Visions for a New American
Dream, 1994. Three New Jersey case studies illustrate the characteristics
of traditional small towns. Describes the trademarked Visual Preference
Survey (VPS), a technique developed by Nelessen to help communities revise
their master plans to patterns that local residents find visually pleasing.
Local residents rank hundreds of photographs of town designs, streetscapes,
and types of architecture, for what is most and least desirable. Examples
of illustrated codes.
Regional Plan Association, Tools and
Strategies: Protecting the Landscape and Shaping Growth, 1990. Outlines
acquisition techniques, planning tools, financial options in easy-to-use
Land Conservation Strategies Tables. N.J. Office of State Planning, "Local
Planning Techniques that Implement the State Development and Redevelopment
Plan," Document #110, 1995. Full descriptions and examples of techniques
such as community participation programs, build-out analysis, rural design,
open space programs, density lot averaging, nitrate dilution model capacity
Trust for Public Land, New Jersey Field
Office, A Handbook for Public Financing of Open Space in New Jersey,
1995. Explains in detail different ways to fund open space, how to conduct
an open space campaign, and examples of county and municipal financing
This ANJEC Resource Paper was made possible
by a grant from The Fund for New Jersey.
1. National Park Service, Rivers, Trails
and Conservation Assistance Program, Economic Impacts of Protecting
Rivers, Trails, and Greenway Corridors, 1990. Resource book to be used
as framework for understanding economic impacts of greenways. Covers real
property values, expenditures by residents, businesses, visitors, reductions
in public costs, estimation methods, case studies, surveys.
2. Burlington County Farmland Preservation
Program, Draft Strategic Plan, 1996, Section on benefits of farmland
preservation includes cost of community services calculations.
3. East Amwell Agricultural Advisory Board,
Valerie Rudolph, "Cost of Community Services Study," 1994.
4. New Jersey Conservation Foundation,
Alison E. Mitchell "Economic Analysis Shows Farmland Preservation Pays,"
New Jersey Land Forum, Winter 1995.
5. Citizens for Controlled Development,
Fariello, Leonardo A. and Largman, Rich, "Economic Analysis for the Schiff
Reservation in Mendham," 1993.
6. Mendham Township Committee, "Report
of the Financial Impact on Taxpayers for Acquisition of the Schiff Tract
by Mendham Township," 1994. Costs of acquisition, future taxes.
7. Pinelands Commission, "Comparison of
Financial Statistics of Several Pinelands and non-Pinelands Municipalities,"
1994. Comparisons of vacant land sales, per capita real estate taxes and
recent farmland sales.
8. Great Swamp Watershed Association, Leonard
W. Hamilton, PhD and Paul B. Wehn, PhD, The Myth of the Ratables,
1992. Note: "Calculations were based on constant dollar values (1986) and
all assessed valuations were converted to 100 percent of actual value."
9. ANJEC, Linda Howe, Keeping Our Garden
State Green: A Local Government Guide for Greenway and Open Space Planning,
1989. Benefits of greenways, specific planning tools including design criteria,
planning and zoning techniques, conservation easements. Case studies, information
10. N.J. Office of State Planning, Big
Box Retail, 1995.
11. New Jersey Reporter, Neil Upmeyer,
Tunnel Vision, March/April 1993, and conversation with Robert S.
Stokes, Chief, Bureau of Recreation and Open Space Resource Planning, NJDEP
Green Acres Program.
12. Regional Plan Association, Robert Yaro,
Anthony Hiss, A Region At Risk, 1996. Third regional plan for NY
metropolitan region focuses on interdependence of three state area for
equity, economy and environment.
13. New Jersey Conservation Foundation,
Alison E. Mitchell, The New Jersey Highlands: Treasures at Risk,
1992. Inventory of natural and cultural resources of New Jersey's Highlands;
threats and conservation initiatives.
14. See note 1.
15. See note 1.
16. See note 1.
17. Lincoln Institute of Land Policy, R.
Lisle Baker and Norman H. Wolfe, Negotiated Development and Open Space
Preservation, Monograph #84-1, 1984.
18. James Hall, Assistant Commissioner
for Natural Resources, N.J. Department of Environmental Protection, Testimony
Before Senate Committee on Natural Resources, Trade and Economic Development,
19. NJ Division of Fish, Game and Wildlife,
"Economic Impacts of Wildlife Recreation in New Jersey," 1991.
20. Borgman, Anna, The Washington Post,
February 26, 1995.
21. Real Estate Research Corporation, The
Costs of Sprawl, 1974.
22. See note 12.
23. Center for Urban Policy and Research,
Rutgers University, Robert Burchell et al, Impact Assessment of the
New Jersey Interim State Development and Redevelopment Plan, 1992.
24. Tufts University, Francis R. Thibodeau
and Bart D. Ostro, An Economic Analysis of Wetland Protection, 1978.
Quantifies economic benefits of wetland in Charles River Basin, presents
legal issues surrounding wetlands preservation and suggests a role for
economic analysis in land use decisions.
25. See note 23.
26. Center for Urban Policy and Research,
Rutgers University, Robert Burchell et al, Impact Assessment of Delaware
Estuary Program (DELEP) Comprehensive Conservation Management Plan (CCMP)
versus Status Quo on Twelve Municipalities in the DELEP Region, 1995.
Leonard W. Hamilton, Ph.D.
Municipal officials frequently fall into
a trap that is set by commercial and industrial companies. The argument
is that these types of properties provide a high assessed value, while
requiring very limited municipal services. Being nonresidential, they send
no children into the schools, they take care of their own garbage collection,
and they have more localized requirements for road maintenance and for
police and fire protection.
"We can help you balance your budget,"
they tell local officials, "if you let us come into your community." The
argument, in the simple way that is presented to the municipality, suggests
that commercial ratables will provide tax relief as follows:
Assume that a new commercial property,
valued at $2.5 million, will pay $50,000 per year in taxes, the same rate
as 10 residential properties (valued at $250 thousand each with taxes of
$5,000 each). The developers will argue that the 10 residential properties
will send 15 children into the schools, will require trash pick-up, snow
removal, and other municipal services, all of which will more than eat
up their tax contribution. By contrast, they will claim that the commercial
property's burden on municipal services will be minimal, perhaps $10,000
per year, leaving some $40,000 free and clear for municipal officials to
use to balance their budget.
Does this sound too good to be true? It
There may have been a time in the 1960's
and 1970's when there was evidence (poorly analyzed) to indicate that the
strategy of attracting commercial ratables held the key to balancing municipal
budgets. As a result, the "ratables chase" was on, and our communities
became the laboratories that proved the illusory nature of this quick economic
In 1992, Paul Wehn and I examined the previous
20 years of tax data (1973-1992) and ratables for the 39 municipalities
that make up Morris County, New Jersey. The municipalities vary greatly
in the amount of commercial and industrial ratables that were added during
this period of rapid growth, and so provided a good basis for determining
any tax relief that might have resulted from attracting these ratables
into a community. The most interesting comparison was between the 13 "Ratable
Rich" communities and the 13 "Ratable Poor" communities:
The Ratable Poor communities were 92 percent
residential with only 8 percent of their assessed value in commercial property.
Although they represented one third of the municipalities, they owned only
16 percent of the county's assets.
The Ratable Rich communities were 65 percent
residential with 35 percent of their assets in commercial properties. Although
they represented only one third of the municipalities, they owned a whopping
58 percent of the county's assets.
According to the argument for ratables,
the commercial properties should be paying taxes at a rate that exceeds
their burden on services, with the corresponding tax relief going to the
residents of that community. If this is true, then the Ratable Rich communities
in general should be paying proportionately less taxes than their Ratable
Poor neighbors. But this is not the case: The Ratable Poor municipalities
owned 16 percent of the county's assets and paid 16 percent of the taxes;
the ratable rich municipalities owned 58 percent of the assets and paid
57 percent of the taxes.
Thus, despite the addition of some $4.2
billion in ratables over a 20-year period, there was no evidence that the
ratable rich municipalities had gained a tax advantage--dollar for dollar,
their costs of running local government have remained the same as for the
towns that preserved their residential character. This was evidenced not
only by the overall costs, but by individual tax rates as well. Property
tax rates went up, as expected, over the 20-year period, but there was
no systematic relationship between the amount of increased residential
tax levies and the amount of ratables added.
One possible reason that the taxes did
not go down in these ratable rich municipalities is that they spent the
extra money to improve their communities, but the evidence argues exactly
the opposite. Morristown was one of the biggest players in the ratables
chase, adding nearly a half-billion dollars in ratables over the study
period. It is the county seat, with a powerful chamber of commerce and
excellent infrastructure and transportation. Despite all of this, it does
not stack up very favorably among the 39 municipalities of Morris County,
ranking 8th in taxes, 3rd in unemployment, 2nd in poverty cases, and 2nd
in housing density.
The ratables chase had simply not worked.
The main reason why the ratables chase
does not work is because of a miscalculation of the real costs. Whether
this is an overly simplistic calculation of the costs or an outright misrepresentation
of the data, the proposals that reach local planning boards almost never
reflect a realistic appraisal of future costs to the municipality.
The tendency of the fiscal analysis reports
is to rely on the same sort of anecdotal fallacy that encourages couples
to marry because "two can live as cheaply as one." Perhaps a bit more sophisticated
in the case of commercial ratables, but the claim that costs to the municipality
will be minimal is always wrong: The notion that a large commercial venture
can blend, unnoticed, into the existing services of the community has no
basis in fact.
In calculating the costs to the community,
I like to use the concept of locating the proposed commercial property
on an island. The commercial enterprise cannot function on the island,
so must begin to establish services. Let us examine a few:
Even if the commercial property hauls away
its own garbage, it is using up valuable dumping capacity and will hasten
the day when the municipality must find new locations at a greater cost.
The commercial property may hire its own
security force, but the increased traffic and local population during working
hours will increase the burden on local police and trigger the need for
new cars and new officers sooner than if the commercial property were not
The increased traffic will result in additional
repairs and improvements to roadways.
The commercial property may pay the same
rates or even higher rates for use of these services, but history has shown
that expansion of these facilities is always more costly than the initial
service, and this increased cost will be passed on sooner because of the
Many local fire departments are not equipped
to serve larger commercial facilities, and new equipment will be needed.
Even more costly, the influx of workers and their families into smaller
communities may increase the need for services to the point that a paid,
multi-shift fire fighting service will be needed to replace a volunteer
Commercial properties are complex. The
additional direct administrative requirements to deal with a large commercial
venture as well as the indirect requirements for dealing with the additional
workers and their families will increase the staffing requirements of the
Factories may not send children to school,
but their workers do. A single, large commercial enterprise may double
the size of a small community. The workers and their families have to live
somewhere, and most of their children will enter the local school system.
Current estimates from the U. S. Department
of Commerce indicate that for each dollar contributed by commercial ratables,
the local municipality must spend $2.05 in services. This sounds too bad
to be true! But, alas, it is.
One of the premises put forth by the commercial
developers is that their property can be dropped into a community without
a ripple. Numerous studies have shown that this is not the case. When the
open space near residential properties is transformed into commercial or
industrial property, the value drops by as much as 30 to 50 percent. In
the short term, this means that the property owner is being penalized by
continuing to pay the same rate for a property that has decreased significantly
in value. In the long term, with property sales and reassessments, the
taxes will be adjusted lower to reflect the decline in property value and
the overall tax base of the municipality will fall accordingly.
This negative impact of commercial ratables
can be seen in the 1993 report of the Morris County Board of Taxation.
Overall, the total assets of the county began to decline in 1988, causing
some towns to scramble to find new commercial ratables to buttress their
budgets. This would probably be ill-advised, because the five towns that
showed the biggest decline in value (about -8.5 percent) had added $832
million dollars in commercial ratables during our 20-year study period.
By contrast, the five towns that gained the most (about +8.6 percent) had
added only $248 million in commercial ratables.
Buying land and leaving it vacant may be
one of the best investments for a community. Like commercial ventures,
open space does not send children to school either. But unlike commercial
ventures, open space does not inflate the requirements for infrastructure
and other community services, and it increases the value of adjacent properties.
Paradoxically, commercial ventures are
often bad for business. Yours, not theirs. A calculation that is never
included in economic forecasts of commercial development is the demise
of existing local businesses. Family-owned businesses that serve our local
communities flourish in a village or town setting, but they are dwarfed
by commercial and industrial giants that move in. In addition to providing
unreasonable competition, they often physically obscure these businesses
by forcing new traffic patterns, divided highways, and traffic signals
that make it difficult to patronize or even see these businesses. In the
typical evolution of a community from a village to a heavily commercialized
city, business ownership becomes more and more consolidated into the hands
of a few large holders, most of whom have no other connection or commitment
to the local community.
The increased burden to the municipality
and residential property owners does not stop with the initial miscalculations
or even with the secondary ripples that are produced by changing the character
of the community. With increasing regularity, the commercial ventures themselves
are going to court for tax reductions--and winning!
When it becomes apparent that the rosy
fiscal projections that were presented to the planning board are not coming
true, the owners of the commercial properties submit legal appeals for
tax reductions. More than 16,000 such appeals were heard by the New Jersey
State Tax Court in 1992, and these are only heard if the challenged assessment
exceeds $750,000! Many communities that had been slapped with hidden costs
when the commercial venture came on board were forced to turn the other
cheek and find a way to meet their increased municipal costs with court-sanctioned
decreases in revenue. More than likely, they will look for some new ratables
to help them balance the budget.
Many of these re-assessments may be legitimate
(there may be unforeseen changes in markets, and countless other variables),
but the fact remains that businesses are sharing less and less of the tax
burden. In the 1950s, businesses paid about 45 percent of the taxes; now
they pay 16 percent.
The character of the community that we
live in is one of the most defining aspects of our lives. The more fortunate
among us glow with pride when we speak of our house, our neighborhood,
our work in the community, our schools, our recreational facilities, and
so forth. These are the things that weigh heavily in determining that elusive
substance we call our quality of life. If we could "buy" these things by
paying more than our share of the tax burden as individuals and let commercial
developers off the hook, it might be a small price to pay, but the negative
consequences of Morristown's quest for ratables cited above is symptomatic
of a more widespread phenomenon.
Recent surveys of residents in the New
Jersey, New York and Connecticut tri-state area have revealed deep dissatisfaction
with the quality of life, and much of this dissatisfaction is grounded
in the increasingly urban/commercial character of the places where people
live. Some 47 percent of urban residents and 40 percent of suburban residents
would like to move. Where? To less urban and more rural areas. To put a
twist on a currrent saying, if you build it, they will leave.
Robert Yaro, Executive Director of the
Regional Plan Association that undertook one of these studies, commented
that "...we've got to work in a concerted way to make this a better place
to live and work, from having more civility in public places to creating
more jobs and green space." If we are going to have commercial ventures
(and of course, we must), then they should be honest, fully participating
members of the community rather than hucksters that are invited in to make
the bottom line look better for this year's municipal budget. In this role,
they will be much less willing to mortgage the future of their municipality.
There is a strong tendency for most citizens
and municipal officials to accept the economic impact reports that are
submitted by commercial development proposals at face value. After all,
it was prepared by an expert (usually from a consulting firm) and would
there be any reason to expect that an average citizen could do better?
Well, yes. In fact, the report that appears in Appendix II is a specific
example of how some simple recalculations can present a more realistic
budget picture. Copperas Ridge, by the way, is now permanently green.
A wag once said that there are liars, damn
liars, and statisticians, and we would be wise to bear in mind that the
economic impact reports are, in a sense, advertisements for the commercial
developer--they will not necessarily point out all the warts and wrinkles.
Local officials and citizens are likely to have a much better perspective
of how the new neighbor would affect the community.
Leonard W. Hamilton, Ph.D. Alice Puleo, Project Director
Rutgers University Morris Parks and Land Conservancy
The New Jersey Department of Environmental
Protection and Energy Green Acres Program has negotiated a willing seller
sale of the 2500-acre Copperas Ridge tract in Rockaway Township. This purchase
will preserve the land as open space at no cost to the Rockaway taxpayer.
The Rockaway Township Council opposes the
preservation of Copperas Ridge with State Green Acre funds. They propose
instead a golf course/residential development for 800 acres, the remainder
being preserved by Green Acres. The Council supports this development as
producing a positive tax revenue flow for Rockaway Township, when in fact
this development would increase taxes for Rockaway residents.
Accounting methods used by Canger & Cassera, Inc., Consulting and Municipal Engineers, in their original Fiscal Impact Analysis for Copperas Ridge of 1991 (which estimate a deficit of $100,000) were followed. Statistics provided by the Township Council and the developers are used for the Table I computations. Footnotes indicate arguments with statistics or methods. The recalculations shown in Table II reflect a more conservative analysis of the proposed development. Brackets indicate the pages referred to in Canger & Cassera, and
only computations are shown. All budget
figures are for 1993:
Projections Using Township/Developer Data
|Municipal Services||Local School District||Regional H.S. District||Total|
* A regional district
surplus does not come back to the Township budget and should not be computed
as part of the total in a Township budget. However, since the original
study did so, we compute the total deficit incurred by the proposed development
at -$396,287. This deficit was multiplied by 0.68, the amount apportioned
to residential taxes, then divided by 7106, the number of households in
($396,287 x 0.68)/7106 =
$37.92 [including Regional H. S. surplus]
[($396,287+$236,478) x 0.68]/7106
= $60.55 [excluding Regional H. S. surplus]
This means an average annual tax increase
of $38 per household.
Removing the Regional High School surplus
from the local budget predictions yields an average
annual tax increase
of $61 per household to subsidize the development of Copperas Ridge.
Projections Using More Realistic Numbers and Including
Costs for Required Local School Expansion
|Municipal Services||Local School District||Regional H.S. District||Total|
Using the same calculations as above:
($2,208,395 x 0.68)/7106
= $211.32 [including Regional H. S. surplus]
[($2,208,395+$18,710) x 0.68]/7106
= $213.12 [excluding Regional H. S. surplus]
Thus, using these more realistic numbers,
the average household would face annual tax increases of $211 or $213
to subsidize the development of Copperas Ridge.
|Local Use Expenditure||Non-Residential / Total Assessment||First Expenditure Coefficient||Non-Residential Allocation|
$14,568,126 x 0.26 x 0.61 = $2,310,505
|Second C-R Coefficient||Estimated
$2,310,505 x 0.06 x 0.30 = $41,589
The proposed golf course would result in
approximately $41,589 in added local costs.
Deducting the nonresidential portion of
the municipal costs budget, $2,310,505 from the actual 1993 budget leaves
$12,468,268 allocated to the residential municipal costs. The estimated
1993 population for Rockaway Township (1994 Morris County Data Book) is
20,025 persons for a per capita cost of $623 for municipal services. The
350 proposed new households multiplied by a projected 4.031 persons per
household would increase the Township population by 1,411 persons. Multiplying
1,411 times the average $623 for municipal services yields a projected
increase of $879,053 for the residential portion. Thus, for Table I, the
costs in municipal services are:
Golf Course $ 41,589
New Homes $ 879,053
Total Cost $ 920,642
These total costs do not consider capital
cost of additional fire engines, police cars, snow plows, ambulances, and
so forth, or the additional man-hours necessary to provide these services.
In terms of traffic generated, 350 houses would put at least 700 drivers
on the road (perhaps 1050 with one driver per child). Estimating one round
trip per driver per day through the Township streets means an additional
700 cars that require traffic control, disregarding service traffic. Street
maintenance, traffic controls such as traffic lights, and officer and ambulance
time responding to the incremental increase in accidents all indicate an
increase in the costs budget. The 1,411 projected residents are seven percent
of the estimated 1993 Township population of 20,025. Estimating that providing
services to this population would increase the municipal residential services
costs by the same increment as it increases the population would mean an
additional cost increase of $64,445 per year.
Thus, for Table II, the more realistic
cost of municipal services would be:
|Market Value||Equalization Ratio||Assessed Value|
(350 @ $500,000)
Thus, for Table II, municipal revenues would be:
|Assessed Valuation**||Local Use Tax||Local Use Revenue|
$117,114,620 x 0.98 = $1,045,796
* These figures seem high for a community so far to the west, being removed from the job market normally associated with the executive jobs which would support these homes. Also, tax assessors do not appraise new homes for their selling price, but according to a set formula at a lower value. Since we cannot devote pages to appraisal techniques, we will let the Town Council's high appraisal assumption stand.
** Existing assessed valuation of the undeveloped property, $3,629,300, should be deducted here as these are tax revenues already in the Township budget. However, since these taxes are currently in arrears, we will not deduct this assessed value for the first analysis, but will in the more conservative analysis.
A more realistic estimate of the Total Assessed Value is as follows:
|Houses Re-Valued||Market Value||Equalization Ratio||Assessed Value|
350 @ $400,000 = $140,000,000 x 62.83 = $87,962,000
Minus Current Valuation of Undeveloped Tract ($ 3,629,300)
Plus Golf Course (same as above) $ 7,162,620
Thus, for Table II, the more realistic
municipal revenues would be:
|Assessed Valuation||Local Use Tax||Local Use Revenue|
$91,495,320 x 0.98 = $896,654
The Town Council report of April 4, 1994
refers to a sewer extension financed by the developer to service the Lake
Telemark area. A figure of $500,000 is referred to in the notes from that
Council meeting. It costs about $20,000 per home in connection costs to
sewer an already existing neighborhood. Assuming 400 homes are tied in,
$8,000,000 would be the real cost of hook-up (the $500,000 is less than
6 percent of the total cost!) Put another way, this "free" trunk line brings
the service to the door, but leaves the homeowner with a$20,000 connection
bill. There are less expensive neighborhood septic systems that are more
cost efficient (see Thonet Report on Rockaway Township by ANJEC.)
This report also refers to lost existing taxes should the State purchase Copperas Ridge. They are not lost. A 13-year pay down in lieu of taxes gradually eases the tract off the tax rolls. Studies have shown that property near open space increases in value. Moreover, the owner whose home has been appreciating due to open space preservation receives a nice bonus when the home is sold. As a final note, these taxes are currently in arrears, so there would in actuality be no loss to the tax rolls without State pardons or appreciation.
Local School District
|Grade||Per Unit Multiplier||Number of Students||Public School Multiplier||Total
Local municipal expenditures per pupil
in 1993 totaled $8,000. Multipled by 330 new students, this would increase
local school costs by $2,640,000 as entered in Table I.
* The per unit
multipliers of 0.803 and 0.305 are low figures which, when combined with
the high school
0.220, equate to about 1.3 children per household. Although
1.5 is the more standard multiplier used in these studies, we used the
lower number throughout. The 84 percent attendance of public school is
unrealistic in an area with few private day school education alternatives
such as Rockaway. A figure of 90 percent would be more realistic.
** $8,000 and
$8,600 are recurring figures for local per student costs in Rockaway. We
use $8,000 for the Township model and $8,600 for the more conservative
The more realistic student numbers would
be as follows:
|Grade||Per Unit Multiplier||Number of Students||Public School Multiplier||Total
With local expenditures per pupil of $8,600,
multipled by 349 new students, this would increase local school costs by
$3,001,400. Adding the required new school bond of $528,000, the more realistic
total cost would be $3,529,400 as entered in Table II.
The Local School District Revenues as calculated
for Table I are as follows:
|Total Assessed Value||Local School Tax Rate||Revenue|
$113,485,320 x 1.52 = $1,724,977
Using the more conservative values, the
more realistic revenue projection for Table II would be as follows:
$91,495,320 x 1.52 = $1,390,728
|Grade||Per Unit Multiplier||Number of Students||Public School Multiplier||Total
The Regional District Costs for 69 new
students at $11,000 per student would be $759,000 as entered in Tables
I and II.
The High School District Revenues as calculated
for Table I are as follows:
|Total Assessed Value||Local School Tax Rate||Revenue|
$113,485,320 x 0 .85 = $964,625
Using more realistic assessed values for
Table II, the revenues would be:
$ 91,495,320 x 0 .85 = $777,710
ANJEC is a statewide non-profit organization
that informs and assists environmental commissioners and interested citizens
in preserving and protecting New Jersey's environment. Founded in 1969,
ANJEC promotes the public interest in long-term natural resource protection
and sustainable development through advocacy, research, publications, and
forums for the exchange of ideas.
Richard Kane is the Director of Conservation
for the New Jersey Audubon Society. In addition to his work for the Audubon
Society, he has been a major contributor to the deliberations of the Great
Swamp Watershed Advisory Committee and to other regional planning groups
in New Jersey.
Stephen Miller is the Executive Director
and one of the three founding trustees of the Isleboro Islands Trust in
Maine. He lives with his wife and two sons in a timber frame house that
was built from local materials. His sons are seventh generation Isleboro
residents. Graduating from the University of Maine in 1972, he has become
nationally recognized for his work on the economic benefits of open space.
Lisa Moore is an attorney for the Environmental
Defense Fund and has worked in both their New York and Washington, D.C.
offices. A specialist in property law and landholder rights, she has been
influential in providing guidance in the complex issues of takings.
Anton C. Nelessen is a professor at the
Edward J. Bloustein School of Planning and Public Policy at Rutgers University.
Internationally known for his work on planning and urban design, he developed
the Visual Preference SurveyTM to help local planners develop
innovative zoning and land use decisions.
Robert Pirani is the Director of Environmental
Projects for the Regional Plan Association. He is widely recognized for
his analyses of community resources and models for the development of sustainable
Alice Puleo has served as Project Director
for the Morris County Parks and Land Conservancy and is currently a trustee
of both the New Jersey Conservation Foundation and the Raptor Trust.
Nora Rubinstein earned a doctorate in Environmental
Psychology in 1983 from the City University of New York. Recognized for
her innovative research on the meaning of "home" and the effects of idealized
environments on attitudes toward place, she teaches at Rutgers University
and Pratt University, has worked for both profit and non-profit agencies
throughout the region, and has been appointed to the Master Plan Committee
of Ocean Beach, New York.
Stuart Udall served as Secretary of the
Interior under President John F. Kennedy. He was influential in creating
the Great Swamp National Wildlife Refuge, which includes the first Wilderness
Area created east of the Mississippi. His book The Quiet Crisis
has remained a benchmark of environmental philosophy.
Robert D. Yaro is the Executive Director
of the Regional Plan Association, which has been one of the most influential
observers of both the pitfalls and benefits of the crowded urban environment
along the eastern seaboard. Mr. Yaro is a recognized authority on the conservation
of regional resources.
About the Editor
Leonard W. Hamilton, Ph.D.
Leonard W. Hamilton earned his doctorate in Biopsychology
from the University of Chicago in 1968 and has been a professor at Rutgers University
since then. Author of numerous research articles and books in his area of formal
training, he has turned some of these skills toward environmental issues during
the past decade or so. He has represented Long Hill Township as a member of
the Great Swamp Watershed Advisory Committee, as Chair of the Ten Towns Great
Swamp Watershed Managment Committee, as Vice-Chair of the Long Hill Township
Environmental Commission, and as a member of the Open Space Advisory Committee.
Currently serving as Science and Technology Advisor to the Great Swamp Watershed
Association, he has also served as a trustee of that group, as a founding trustee
of the Black Brook Restoration Preservation and Protection League, and as a
member of the Executive Committee of Friends of Long Hill. He lives with his
wife, Robin Timmons and their bloodhound Rumpole in a 235-year old house located
in the middle of the Great Swamp in Morris County, New Jersey
I would like to thank Laura Szwak, who
was very influential in the early conceptualization of this volume and
in contacting and gaining the commitment of potential authors. She is the
Assistant Director of the Morris Land Conservancy (MPLC), a non-profit
organization founded in 1981 to initiate and assist land preservation in
Morris County; monitor support and protect existing public parks and preserves;
and foster awareness of ecological issues important to the environment
of Morris County. She has been a major contributor to the goals of the
MLC, and in 1997 was voted Chair of Mt. Olive's newly formed Open Space
Committee. Her contributions are very much appreciated.
I am also indebted to Karen Parrish for
her outstanding and professional editing of the final draft. Without her
patient expertise, the published volume would have many more errors; had
I taken all of her advice, it would have fewer.
Finally, I am grateful to Rumpole for sleeping
through most of the compilation and editing.
Leonard W. Hamilton
Funding for the Benefits of Open Space was provided by The Geraldine R. Dodge Foundation, The Victoria Foundation and The Schumann Fund for NJ.
2. First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304, 340, n. 17 (1987)(Stevens, J., dissenting).
3. First Amendment challenges to land use regulations are beyond the scope of this chapter because those regulations will rarely implicate the protection of open space or environmentally sensitive land. For a discussion of the limitations the First Amendment places upon the exercise of the police power see Schad v. Borough of Mount Ephraim, 452 U.S. 61 (1981)(local prohibition of live entertainment violated First Amendment); Young v. American Mini Theatres, Inc., 427 U.S. 50 (1976)("anti-skid row" ordinance which prohibited the concentration of adult entertainment establishments and related uses did not violate the First Amendment); Bell v. Stafford Tp., 110 N.J. 384, 541 A.2d 692 (1988)(prohibition on billboards); State v. Miller, 83 N.J. 402, 416 A.2d 821 (1980)(restrictions on billboards); Burlington Assembly of God. v. Zoning Board, 238 N.J.Super. 634, 570 A.2d 495 (Law Div. 1989)(restriction on construction of radio tower).
4. See Lawton v. Steele, 152 U.S. 133, 136 (1893); Roselle v. Wright, 21 N.J. 400, 122 A.2d 506 (1956).
5. See, e.g., Agins v. City of Tiburon, 447 U.S. 254, 262 (1980)(open space preservation is a legitimate government goal and within the police power of the state); Texas E. Transmission Corps. v. Wildlife Preserves, Inc., 48 N.J. 261, 268; 225 A.2d 130 (1966)(natural resource conservation is a legitimate government goal and within the police power of the state). The New Jersey Constitution explicitly recognizes that land use regulation is within the police power of the state, and authorizes the state to delegate this authority to municipalities. n.j. const.1947, Art. 4, sec. 6, par 2. New Jerseys Municipal Land Use Law ("MLUL"), N.J.S.A. 40: 55 D et seq. contains both this delegation and sets forth the basic rules within which municipalities must exercise this delegated power.
6. Challenges to local land use regulations based upon the argument that the local action is beyond the authority delegated to the local body under MLUL, or is otherwise preempted by state legislation, are based upon the different premise that the local municipality has overstepped its authority vis-à-vis the State, not the Constitution. See, e.g., Crow-New Jersey 32 Ltd. v. Township of Clinton, 718 F. Supp. 378 (D. N. J. 1989)(ordinance excluding steep slopes and wetlands from FAR calculation struck on ground that MLUL required FAR calculation to consider total area of the site); New Jersey Builders Association v. Bernards Township, 108 N.J. 223; 528 A.2d 555 (1987) (requirement that developer pay pro rata share of municipalitys $20 million road improvement plan beyond authority granted to municipality under MLUL). While a successful challenge based on this theory would result in the invalidation of the ordinance, the State could potentially step in and exercise the power impermissibly exercised by the local municipality. I focus here upon the challenges to land use regulation based upon the Constitution which may place regulation beyond the authority of any government body, or where that regulation must be accompanied by compensation to be sustained.
7. The state may, of course, statutorily require that landowners obtain payment for certain regulatory restrictions. New Jerseys MLUL provides such a right to payment in the case where land is reserved for public use by an official map or master plan. N.J.S.A. 40: 55 D-44. See Lomarch Corp. v. Mayor & Common Council of the City of Englewood, 51 N.J. 108, 237 A.2d 881 (1968). Note, however, that temporary moratoria on development have been distinguished from reservations, and sustained in the face of takings challenges. See, e.g., Tocco v. New Jersey Council on Affordable Housing, 242 N.J. Super. 218, 576 A.2d 328 (App. Div), cert. denied, 122 N.J. 403, 585 A.2d 401 (1990), cert. denied, 111 S. Ct. 1389 (1991); Orleans Builders & Developers v. Byrne, 186 N.J. Super. 432, 453 A.2d 200 (App. Div. 1982); Cappture Realty Corp. v. Board of Adjustment of Elmwood Park, 133 N.J. Super. 216, 336 A.2d 30 (App. Div. 1975).
8. Many commentators have noted the differences between the two inquiries. See, e.g., John D. Echeverria, The Takings Issue and the Due Process Clause: A Way Out of a Doctrinal Confusion, 17 VT. . . L. Rev. 695 (1993); Jerold S. Kayden, Land-Use Regulations, Rationality, and Judicial Review: The RSVP in the Nollan Invitation (Part I), 23 Urb. Law. 301 (1991); William B. Stoebuck, San Diego Gas: Problems Pitfalls and a Better Way, 25 J. Urb. & contemp. L. 3 (1983); Ross A. Macfarlane, Note, Testing the Constitutional Validity of Land Use Regulations: Substantive Due Process as a Superior Alternative to Takings Analysis, 57 Wash. L. Rev. 715 (1982).
9. U.S. const. amends. v, xiv.
10. U.S. const. amend. v.
11. Because the Fourteenth Amendment to the U.S. Constitution applied the Bill of Rights, including the Due Process, Equal Protection and Takings Clause guarantees, to citizens of the states, see Chicago, Burlington & Quincy Ry. v. Chicago, 166 U.S. 26 (1896), a plaintiff raising a constitutional challenge to a state or local land use law may allege that the law violates the U.S. Constitution and/or the state constitution where the state has provided similar protections. While New Jersey courts are bound to apply the pronouncements of the U.S. Supreme Court to claims based upon the U.S. Constitution, they are not bound to apply that law to claims based solely upon the New Jersey Constitution. This could result in the confusing situation where similarly worded provisions would be interpreted under different standards.
As in many states, however, New Jersey courts generally apply the U.S. Supreme Court interpretations of the U.S. Constitution when passing upon claims based upon practically identical provisions of the N.J. Constitution. As a result, U.S. Supreme Court interpretations are usually followed by New Jersey courts in cases based entirely upon the N.J. Constitution. See, e.g., Gardner v. New Jersey Pinelands Commission, 125 N.J. 193, 205, 593 A.2d 251, 257 (1991); Littman v. Gimello, 115 N.J. 154, 161, 557 A.2d 314, 317, cert. denied, 493 U.S. 934 (1989). The one notable exception to this general rule is in the interpretation of the Equal Protection Clause, where the New Jersey Supreme Court applies more stringent standards to claims brought under the New Jersey Constitution. Compare Southern Burlington County NAACP v. Township of Mount Laurel, 67 N.J. 151, 336 A.2d 713, cert. denied and appeal dismissed, 423 U.S. 808 (1975)(Mount Laurel I); Southern Burlington County NAACP v. Township of Mount Laurel, 92 N.J. 158, 456 A.2d 390 (N.J. 1983)(Mount Laurel II) with Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977).
12. 272 U.S. 365 (1926).
13. Id. at 395.
14. Nectow v. Cambridge, 277 U.S. 183 (1928)(successful due process challenge to zoning ordinance which prohibited commercial uses on a potion of parcel owned by landowner where remainder property and all surrounded property permitted such use); Gorieb v. Fox, 274 U.S. 603 (1927)(setback ordinance did not violate equal protection or due process clauses); Zahn v. Board of Public Works, 274 U.S. 325 (1927)(ordinance restricting use of property for residential purposes does not violate the equal protection or due process guarantees).
15. New Jersey courts conduct a similar deferential means-ends inquiry. See, e.g., Pascack assoc.n. Ltd. v. Mayor and Council of the Township of Washington, 74 N.J. 470, 379 A.2d (1977); Bow and Arrow Manor, Inc. v Town of West Orange, 63 N.J. 335, 307 A.2d 563 (1973). But see Sheerr v. Evesham Township, 184 N.J.Super 11, 38-50, 445 A.2d 46, 59-67 (Law Div. 1982) where the superior court more closely scrutinized the proffered environmental purposes for a zoning restriction.
16. U.S. const. amend. V, XIV. The New Jersey Constitution similarly provides "[private property shall not be taken for public use without just compensation." 1947 n.j. const. art. 1, P 20. The power to take property granted to the government in the Fifth Amendment is referred to interchangeably as the power of eminent domain and the power of condemnation. When the government moves to exercise this power, it institutes a legal action called a condemnation action. The term "inverse condemnation" refers to legal action which may be brought by a property owner who alleges that although the government has nott instituted a condemnation action, it has de facto condemned property. An inverse condemnation action allows the affected landowner to sue to force the government to formally condemn the property and pay the landowner compensation. See United States v. Clarke, 445 U.S. 253, 255-258 (1980); N.J.S.A. 20:3-1 et. seq., the Eminent Domain Act of 1971.
17. The proposition that the government should pay compensation even for the direct physical takings of private property was not commonly accepted in colonial or revolutionary America. Uncompensated takings of private property comported with the prevalent republican ideology of that time which emphasized the common good over individual rights, and were common in that time period. The adoption of the Fifth Amendments Takings Clause reflected the limited success of the competing liberal ideology which was born of a distrust of legislative power and its potential to impinge upon individual rights. Historical evidence, however, supports the view that the clause was intended to be limited to direct, physical government takings. See William M. Treanor, The Origins and Original Significance of the Just Compensation Clause of the Fifth Amendment, 94 Yale L. J. 694 (1985).
18. See, e.g., Hadacheck v. Sebastian, 239 U.S. 394 (1915)(ban on brick making to protect encroaching residential property owners which greatly devalued brickyard not a taking); Mugler v. Kansas, 123 U.S. 26 (1896)(prohibition on sale of alcohol which rendered brewery worthless not a taking); Commonwealth v. Algar, 7 Cush. 53 (Mass. 1833)(state law prohibiting construction of wharf in Boston Harbor did not take property of waterfront owner by devaluing that property); Coates v. The City of New York, 7 Cow. 585 (New York 1827)(city ordinance prohibiting burial of dead did not take property bound by private contract for use as a cemetery).
19. 260 U.S. 393 (1922). The first New Jersey case to find that a zoning regulation enacted for environmental purposes gave rise to a taking was Morris County Land Improvement Co. v. Township of Parsippany-Troy Hills, 40 N.J. 539, 193 A.2d 232 (1963). In Morris County Land, the court found that a zoning statute which prohibited the use of a 1500-acre swamp for residential or urban development, but did allow certain less intensive uses, gave rise to a taking. The case is no longer good law in New Jersey. See, e.g., AMG Assoc. v. Township of Springfield, 65 N.J. 101, 112, n.4, 319 A.2d 705, 711, n. 4 (1974); Gardner, 593 A.2d at 261.
20. Mahon, 260 U.S. at 395.
21. The former remedy is given where the property owner has succeeded in a "facial" challenge to the law; that is, he has demonstrated that the law is unconstitutional on its face, in every possible application. The latter remedy is given where the property owner has succeed in an "as applied" challenge to the law; that is, although the law may be generally constitutional, as applied to him in a given factual circumstance, it is not. In an as applied challenge, the law is left on the books, but no longer applied to the property owner.
22. 42 U.S.C. 1983 provides: "Every person, who under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory of the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress." In Monell v. Department of Social Services, 436 U.S. 658 (1978), the Court held that municipalities are "persons" for the purpose of 42 U.S.C. 1983.
23. First English, 482 U.S. 302.
24. United States v. Causby, 328 U.S. 256 (1946)(government authorized flights destroying its use as a chicken farm characterized as a direct use of plaintiffs land and a taking).
25. 438 U.S. 103, 125 (1978).
26. See Goldblatt v. Town of Hempstead, 369 U.S. 590, 82 S. CT. 987 (1962)(ordinance which prohibited further mining of land to protect groundwater not a taking); Armstrong v. United States, 364 U.S. 40 (1960)(governments total destruction of materialmans lien in property a taking).
27. 438 U.S. 103.
28. See, e.g., Goldblatt, 369 U.S. 590 (maintaining the distinction between the due process-equal protection and takings inquiry); Pappas v. Board of Adjustment, 254 N.J.Super. 52, 603 A.2d 65 (App. Div. 1992)(maintaining the distinction between the due process and takings inquiry).
29. Penn Central, 434 U.S. at 130.
31. See, e.g., Concrete Pipe & Products, Inc. v. Construction Laborers Pension Trust, 113 S. CT. 2264 (1993); Keystone Bituminous Coal Assoc.n v. DeBenedictis, 480 U.S. 470, 498-499 (1987). New Jersey courts follow this rule. See, e.g., Gardner, 593 A.2d at 260; American Dredging Co. v. Department of Environmental Protection, 161 N.J. Super. 504, 514, 391 A.2d 1265, 1270 (1978). For an early New Jersey case which took a narrow view of property see AMG Associates, 319 A.2d 705.
32. Penn Central 434 U.S. at 137. In Gardner, the New Jersey Supreme Court relied upon Penn Central to find that the development credits which were part of the Pinelands regulatory scheme provided offsetting benefits which should be considered when evaluating the economic impact of the program upon individual landowners. Gardner, 593 A.2d at 261.
33. For a review and analysis of TDR programs see James T.B. Tripp and Daniel J. Dudek, Institutional Guidelines for Designing Successful Transferable Rights Programs, 6 Yale J. on Reg. 2 (1989).
34. For a review and analysis of TDR programs see James T.B. Tripp and Daniel J. Dudek, Institutional Guidelines for Designing Successful Transferable Rights Programs, 6 Yale J. on Reg. 2 (1989).
35. See Gardner, 593 A.2d at 260 and cases cited therein. So, for example, in ruling that a local ordinance which placed limitations on mining did not give rise to a taking, the New Jersey Supreme Court was persuaded by the fact that the property owner could put the property to a number of existing profitable uses. Bernardsville Quarry, 608 A.2d at 1387-1390.
36. 608 A.2d 1377.
37. Id. at 1387-1390. The superior court strayed from the reasoning of the New Jersey Supreme Court in Moroney v. Mayor and Council, 268 N.J.Super. 458, 633 A.2d 1045 (App. Div. 1993). In Moroney, the plaintiff purchased two noncontiguous lots, and subsequently improved and sold one of those lots. He then applied for a hardship variance to build on the second, undersized lot. The court held that the denial of that variance gave rise to a taking even though the zoning restriction was in place when he purchased the lot, and the prior owner had actually been denied the variance the plaintiff was seeking. The court seemed to apply the principle of New Jersey statutory land use law which holds that subsequent purchasers may apply for a hardship variance even if a prior purchaser had been denied a variance to its takings analysis in finding that the landowner could reasonably expect to develop the property in question. It is difficult to see why equity would demand that a landowner who purchased a restricted piece of property, and paid a price which reflected that limitation, should receive an award of compensation when his speculative expectations are upset.
38. See, e.g., Ciampitti v. United States, 22 Cl. Ct. 310 (Ct. Cl. 1991)(landowner knowledge of regulatory restrictions at time of purchase basis for rejection of takings claim). For an in depth discussion of this element of the Courts takings analysis see Daniel R. Mandelker, Investment-Backed Expectations in Taking Law, 27 Urb. Law. 2 (1995).
39. 458 U.S. 419 (1982).
40. See also Kaiser Aetna v. United States, 444 U.S. 164 (1979); Bernardsville Quarry, 608 A.2d at 1382 (citing Lorettos per se rule); Littman, 557 A.2d at 318.
41. 112 S. CT. 2886 (1992).
42. 483 U.S. 825 (1987).
43. Lucas, 112 S. CT. at 2901.
44. Interwoven through
many regulatory takings cases is the premise that the government will not
owe compensation where the regulation at issue is designed to prevent harm.
This 'harm preventing rationale would relieve the government of liability
even where challenged action totally devalued a portion of property, and
was relied upon by the Court in many early decisions. See supra
note 18. This same rationale is relied upon by New Jersey courts. See,
e.g., Bernardsville Quarry, 608 A.2d at 1384; Usdin v. Environmental
Protection Department, 173 N.J.Super. 311, 329, 414 A.2d 280, 296 (a
property owner "has no absolute and unlimited right to change the essential
natural character of his land so as to use it for a purpose for which it
was unsuited in its natural state and which injures the rights of others").
Although the Court in Lucas attempted to disclaim this reasoning, the "nuisance exception" to its per se rule merely recreates the harm preventing rationale. While the invocation of nuisance law as a means of sustaining open space and environmental regulation in the face of takings challenges has a major drawback (direct causal proof is often required to demonstrate that a particular activity is a nuisance and may often be absent in an environmental case), it has positive elements. Statutes, for example, are often relied upon by courts to determine whether a given act is a nuisance. Restatement (Second) of Torts 821 B(2)(b)(1977). The Court acknowledged this element of nuisance law when it noted that the extent of those state-based limitations were not frozen in time, but rather could evolve as "changed circumstances and changed knowledge may make what was previously permissible no longer so." Lucas, 112 S. CT. at 2901. Notwithstanding the Courts attempt to carve out this per se rule, it would appear that a regulation which prohibits nuisance-like conduct, as defined by the common law or statute, which leaves property devoid of all economic use would still fail to trigger the right to compensation.
45. See, e.g., Goldblatt, 369 U.S. 590.
46. 447 U.S. 255.
47. Id. at 260. The landowner in Agins had purchased five acres of undeveloped land surrounding San Francisco Bay with the intention of building townhomes. After purchase, the local government adopted a zoning statute restricting the development of the property to five residential units and open space. In denying plaintiffs takings claim, the Court found that open space preservation is a legitimate exercise of the police power, and that the zoning restriction had not totally devalued plaintiffs land. Id. at 262.
48. Nectow, 277 U.S. at 188.
49. Penn Central, 438 U.S. at 138.
50. Both U.S. Supreme Court and New Jersey courts rely upon both the Penn Central and Agins tests, often within the same decision. See, e.g., Gardner, 593 A.2d at 257-261.
51. In fact, the "public use" limiter in Takings Clause prohibits the government from using its authority to take for an arbitrary purpose. Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984).
52. See discussion supra text accompanying notes 21-23.
53. 483 U.S. 825.
54. In finding a taking, the Court made two observations worth noting. First, the Court conceded that the Commission could refuse the Nollans a permit to construct a larger home without triggering the takings clause (the Nollans after all, already had a home on the property). Second, because it could refuse the permit outright, the Court found that the Commission could place conditions upon the permit designed to achieve the purposes which would be served by an outright denial. So, the Court illustrated, the Commission could require the Nollans to construct a permanent viewing station on their property without triggering the takings clause; it could require density, height and fencing restrictions. It could not, however, impose conditions that bore no relation to the harm the Commission was trying to address. Id. at 835.
55. 114 S.Ct. 2309 (1994).
56. Id. at 2322.
57. Id. at 2319.
58. The U.S. House of Representatives passed a "takings" bill (H.R. 925) in March, and a broader "takings" bill (S. 605) is currently pending in the Senate. Senator Scott of New Jersey introduced a state "takings" bill in 1994, which failed in committee. A compensation bill (S.B. 1935) and assessment bill (A.B. 2106) are currently pending in New Jersey. In 1995, 39 states considered over 90 "takings" bills, and eleven states enacted some form of "takings" legislation. Although some state legislatures have enacted "takings" measures, voters have rejected such proposals when put to a direct vote. This past November, for example, Washington voters rejected a compensation referendum by a 60%-40% margin. Last year, Arizona voters rejected an assessment bill by the same margin.
59. 42 U.S.C. 4321 et. seq.
60. While nearly all compensation bills define property as in terms of interests in land, the Senate legislation (S. 605) defines property broadly to include any interest understood to be property.
61. A Congressional Budget Office estimate of the cost of a far more restrictive compensation bill (H.R. 1330) put the figure at between $10 to $45 billion. Unlike S. 605 and H.R. 925, H.R. 1330 would have only applied to wetland rules, and measured devaluation by reference to the entire piece of land owned. The cost of current proposals, lacking as they do these limitations, would be far greater.
62. Federal farm programs provide another good illustration of the absurdity of the "takings" rules contained in S. 605 and H.R. 925. Under H.R. 925, for example, a farmer limited by a Clean Water Act wetland rule would simply have to show that the limitation devalued the wetland by 20 percent or more. Because the 20 percent devaluation is measured only against the wetland portion of the property, and considers solely one government action (the wetland limitation), the farmer has an easy case to make. If the whole property and other government programs were considered, the farmer probably wouldnt be able to make that showing -- on average, federal farm programs increase the value of farmland by 15 to 20 percent.
63. Economic studies
confirm that environmental restrictions often increase homeowner property
values. See, e.g., Parsons, G.R., "The Effect of Coastal Land Use
Restrictions on Housing Prices: A Repeat Sale Analysis," Journal of
Environmental Economics and Management 22:25 (1992); W. Patrick Beaton
and Marcus Pollock, "Economic Impact of Growth Management Policies on Land
Surrounding Chesapeake Bay," Land Economics 68:434 (1992); Beaton
P. W., "The Impact of Regional Land-use Controls on Property Values: The
Case of New Jersey Pinelands," Land Economics 67:172 (1991).
At the same time, a huge number of studies confirm the intuition that pollution and certain land uses tend to lower residential property values. See, e.g., Crecine, J.P., O. A. Davis and J. E. Jackson, "Urban Property Markets: Some Empirical Results and Their Implications for Municipal Zoning," Journal of Law and Economics 10:79-99 (1967)(general literature review); Greenberg, M., "Impact of Hazardous Waste Sites on Property Value and Land Use: Tax Assessors Appraisal." Appraisal Journal 61:42 (1993); Abdalla, C.W., R.A. Roach and D.J. Epp, "Valuing Environmental Quality Changes Using Averting Expenditures: An Application to Groundwater Contamination," Land Economics 68(2):163 (1992); OByrne, "Housing Values, Census Estimates, Disequilibrium, and the Environmental Cost of Airport Noise: A Case Study of Atlanta," Journal of Environmental Economics and Management 12:169 (1985); Nelson, J.P., "Highway Noise and Property Values," Journal of Transport Economics and Policy 16:117 (1982); Hughes, W. T., "Traffic Externalities and Single-Family House Prices," Journal of Regional Science 32:478 (1992); Delaney, C.J., "High Voltage Power Lines: Do They Affect Residential Property Value?" Journal of Real Estate Research 7(3):315 (1992); Ridgker, R. G. and J. A. Henning, "The Determinants of Residential Property Values with Special Reference to Air Pollution," Review of Economics and Statistics 246-257 (May 1967); Nelson, J.P., "Residential Choice, Hedonic Prices and the Demand for Urban Air Quality," Journal of Urban Economics 5:357-69 (1978); Folland, S.T., and R.R. Hough, "Nuclear Power plants and the Values of Agricultural Land," Land Economics 67:30-36 (1991).
64. Both S. 605 and
H.R. 925 contain exemptions which would relieve the government from paying
compensation. Under the first, compensation would not be due if the government
could demonstrate that the limit was designed to protect the public health
or safety in the face of an identifiable threat, or damage to specific
property. The language of the exemption, however, with references to "identifiable"
threats and "specific" property belies the limited nature of the protection.
That is, while neighboring property owners and the public generally now
broadly enjoy the protections afforded by health, safety and environmental
laws, under "takings" proposals they would only benefit from these protections
to the extent that they could identify a specific threat that would be
posed by non-enforcement of the law. This, in effect, places a burden on
the public or neighboring landowners where none had before existed.
Under the second exclusion, the government would not be required to pay for limitations that, in effect, mimic the nuisance law of the state in which the property is located. Nuisance law, however, is of no help to neighbors who experience small harms from individual sources that have a serious cumulative impact. In fact, the very inadequacy of nuisance law in dealing with the cumulative effects of environmental degradation gave rise to the very environmental laws "takings" legislation aims to dismantle. The presence of state nuisance law, of course, also fails to ensure a minimum level of environmental quality throughout the nation; again, the provision of such minimum national standards was a driving force behind the enactment of our federal environmental laws.