The Benefits of Open Space

The Great Swamp Watershed Association

Leonard W. Hamilton, Ph.D.

Rutgers University

Science and Technology Advisor

Great Swamp Watershed Association

For more information, or hard copies ($10 each), contact

Great Swamp Watershed Association

973.966.1900

Copyrights © 1997 Great Swamp Watershed Association

May be reproduced for personal and non-commercial purposes

To Helen Fenske

About the Editor Acknowledgments

Contents


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.

Appendices

I. Know What You Are Chasing

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
 
 




Chapter 1

 
 

Open Space: Our Legacy to Future Generations

 

Hon. Stuart Udall


"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)



During the great surge of urbanization in the past five decades the nation has turned its back on small-town America and the rich legacy concentrated in America's countrysides and rural communities. Thomas Jefferson would surely deplore our tendency to ignore these important "country things." Always worried about the corrupting influence of large cities, Jefferson held an almost mystical political conviction that the republic he helped found would be sustained in the long run by cohesive communities of yeoman farmers. "The small landholders," he wrote, "are the chosen people of God...in whose breasts He has made His peculiar deposit for substantial and genuine virtue."
 

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 free.
 

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 things."
 

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 doorsteps.
 

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 future.
 

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 saner, America.
 

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 land.
 

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 live.
 


Chapter 2

CONSERVING REGIONAL RESOURCES

 


Robert D. Yaro

Executive Director, Regional Plan Association


Overview: Defining a Region

 

 

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 state boundaries.
 

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.
 
 
 

Protecting Regional Resource Systems: A New Sense of Urgency

 

 

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."
 
 
 

Building on a Tradition of Innovation in Environmental Protection

 

 

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:
 

Learning from Other Regions That Are Protecting Regional Resources

 

 

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 parks.
 

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.
 
 
 

Challenges to Managing Regional Resources

 

 

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.
 
 













Chapter 3



 

THE ECOLOGICAL AND BIOLOGICAL BENEFITS OF OPEN SPACE

 

Richard P. Kane

Director of Conservation

New Jersey Audubon Society


Open space is not merely an amenity, a frill among other necessities on the map of a region, a watershed, or a community. Rather it is the matrix where most of the creatures in that region or community live, and it affects and controls and is affected by everything else that is there. In rural communities, this is so obvious that it needs no elaboration. But in developed communities, it is frequently forgotten.
 

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, and mammals.
 

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!
 
 
 

References

 

 

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 103:165-182.
 

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. New York.
 

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 Birds 11:5-9
 

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).
 


Chapter 4



THE PSYCHOLOGICAL VALUE OF OPEN SPACE

 


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)


Introduction

 

 

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.
 
 
 

DEFINITIONS: What is open space?

 

 

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.
 
 
 
 
 
 
 
 
 

THE NEED FOR OPEN SPACE

 

The Origin of the Species

 

 

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 effectively (10)."
 

The Metaphysical Bond

 

 

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).
 

Nature as Instrumental: The means to an end

 

 

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).
 

Nature as Symbol

 

 

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).
 

Benefits of Open Space

 

 

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.
 

Physiological Benefits

 

 

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 of buildings22.
 

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).
 

Psychological Benefits

 

 

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.
 

Nature as contemplation, solitude, privacy and intimacy

 

 

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 "time-out."
 

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" (90).
 

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.
 

Nature as restorative and therapeutic

 

 

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 for reflection.
 

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).
 
 
 

Nature as a stress reducer

 

 

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
 

Nature and self-concept

 

 

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).
 
 
 

CONCLUSION

 

 

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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Endnotes

 

 

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 one (284)."
 

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 with aging.
 

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; Knopf, 1983).
 

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' "immersion" goals.
 

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 benefits."
 

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.
 
 





Chapter 5



 

VISIONING OPEN SPACES IN NEW DEVELOPMENT AND REDEVELOPMENT

Anton C. Nelessen

Nelessen Associates, Inc.


INTRODUCTION

 

 

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 settings.
 

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 VISION

How perceptually important are open spaces to the average person? Based on the feedback from VPSTM's conducted across North America, tree lined "cathedral" streets and well maintained parks are considered some of the most positive urban open spaces, receiving values ranging as high as +6 to an unprecedented +9. This "value" has been determined by asking participants to rate their perception of an open space image using a +10 to - 10 scale. The positive or negative rating is based on immediate and intuitive responses. It takes an individual no more than 2 - 4 seconds to place a value on an image. Participants are asked to respond to two questions: first, whether the image makes them feel positive or negative, and, second, whether they think the image is appropriate or not for their community. After considering these questions, they then assign a value to the image. Their mind says, "I like it and I think it is appropriate for my town or block and, therefore, I will give it a positive rating." Next they think, "I like it a lot and it would be great here, therefore I will give it a rating of +8." Some individuals have been able to respond with values to the tenths. e.g., +4.5. Ratings are typically marked on special computer forms which are then read by a scanner allowing quick determination of the average value along with mode, maximum, minimum, and standards deviation for each image. The more positive the averaged value and the smaller the deviation, the more important the elements of that image are to the character and feeling of the place. The higher the perceptual value, typically, the greater the economic value of place, based on analysis of assessed and market value. Those spaces which have a negative perceptual value normally have lower economic value, greater feeling of cognitive pain, and should be avoided and certainly not be encouraged in future planning. When asking people on the accompanying questionnaire what emotions they feel when assigning a negative value to an image, the common response is depression followed by stress, anxiety, and fear. Places which have these characteristics, particularly in higher density urban setting must be prioritized for redesign and retrofitting. A more positive value can be achieved in negative or low positive valued places by incorporating the positive features of the positive rated images into the development and redevelopment plans and site design.
 

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 communities.
 

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 holdings.
 

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:
 

Some open space types are clearly definable, while others exhibit characteristics which overlap the various categories. Because open spaces are organic, the definitions must also be somewhat organic.
 

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.
 
 
 

THE PROBLEM

While the debates, legislation, and litigation over personal property rights and environmental protection of land continue, more and more land is transformed to standard subdivisions, large and smaller lot developments, strip commercial areas, and office parks, all approved and sanctioned by conventional zoning. Most subdivisions are laid out without even considering the need for more than private and semi-private open spaces. Most road standards for rights-of-ways and pavement in subdivisions inadequately address the visual, spatial, emotional, and functional characteristics needed to create the most basic of public open spaces -- a proper street. Most commercial subdivisions, their right-of-ways and the parking lots which serve them, are even more poorly designed. Most suburban site plans lack the fundamental understanding of proportion, lighting, and edge treatment.
 

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 together.
 

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 never walk.
 

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 maintenance.
 

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 RECOMMENDATIONS

The following are recommended standards for creating more positive landscaped open space settings applicable to new development and redevelopment. They apply to both the most private and the most public and regional spaces.
 
 
 

PRIVATE SPACES

 

The Back Yard

 

 

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 Balcony

The minimum size of a balcony or an above ground level patio is 64 square feet per unit. The depth of this space at seven to eight feet is enough to allow comfortable sitting and perhaps a small table. This balcony or patio allows a small portion of the outside to be brought inside. Larger doors, whether sliding or French, are appropriate for light and space transition. Potted plants which can be seen from inside are appropriate here. Another favorite, particularly when a large balcony is not possible, is the French balcony. The door/window extends down to the floor and opens to the inside exposing a small curved or rectangular space defined by a railing, sufficient for standing on or for displaying small plants, thus allowing a visual flow between the inside and the outside environments.
 

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.
 

The Side Yard

The side yard is typically the least important yard unless the house is side loaded or on a zero lot line. The side yard, in most houses which are front and back oriented, primarily controls privacy. Most subdivision regulations specify the side yard setback, and most houses are set on this line. The side of one house is matched with the side of the adjacent house. Fire regulations now determine how many windows one can have on the adjacent side yard facades depending on how close the side elevations of the house are to the adjacent house. If the house is too close, there can be no windows. In some newer developments of smaller lot single family houses with small side yards, every other house side elevation is blank, thereby allowing adjacent house's windows to "look" onto a blank facade. With greater distances, more windows are possible. When side yards are increased, allowing for more windows, landscaping is required to achieve specified levels of visual capacity. In most houses, the side yard is the most unused of all the open space types. Its function is privacy. Unfortunately, too many lots have larger side yards than are necessary, or appropriate, to achieve the desired results. The wider the lot, the more road frontage and pavement, and the longer the trip distances, etc.
 

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.
 

The Semi-Private or Semi-Public Front Yard

The semi-private or semi-public front yard is the third type of open space and is defined as a space between the front of the house and the street right-of-way. If this space is viewed from the inside, front door, or porch of the house, it is called semi- private. If it is viewed from the street it is called semi-public. It is across this space that the "curb" appeal of the house is created. It is the primary image of the house that sets the tone and the spatial proportions for the design of the street, avenue, and boulevard.
 

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.
 

Semi-Public Open Spaces

 

 

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

 

 

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 the pavement.
 

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.
 

The Sidewalk

The sidewalk is critical in the semi-public open space. Residential sidewalks should be a minimum of 4 to a maximum of 5 feet wide, separated from the pavement edge by the parkway. Sidewalks in residential areas should be spatially defined on the street side by rows of street trees and on the residential side with a hedge, fence, or landscape feature which forms a clear separation between the front yard and the sidewalk. On some lots, the ground level of the front yard is raised above the sidewalk line by 1 to 2 feet, using the ground cut to create the base for the street.
 

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 Avenue and Boulevard

Streets generally serve residential areas. They are narrow and can be one or two way, with parking on one side. Parkways are also narrow. Avenues are wider, typically two way, with parking on both sides, with wider parkways. Boulevards are two way with traffic lanes separated by a tree planted median or medians. Avenues and boulevards must have pedestrian movements along both sides with the provision of street trees planted along the pedestrian realm and the median. They are major contributors to the web of open spaces. There are many types of residential and commercial boulevards depending on the number of lanes and the peripheral uses. Denver, Boston, Minneapolis, Buffalo, Santa Anna, Washington, Chico, and Portland have fantastic boulevards. The boulevards act as the spines of open space, connecting larger parks with the parkways of smaller residential streets. It is clear from the view above, and it is a delight on the ground.
 

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.
 
 
 

NEIGHBORHOOD OPEN SPACES

 

 

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

 

 

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 hamlet is the smallest community, located in a rural setting, surrounded on all sides by open space. The village is a larger community in a rural or developing community, which is also surrounded by open space. A neighborhood is a community in a town which has defined edges of parkways, boulevards, developed parks, campuses, or other natural features. The town or city is a series of neighborhoods (from 2 to 20) ideally defined at its borders by a natural feature on regional open spaces or major roads, freeways, and parkways. Each of these community types contains a core of activities with civic park space, defined edges, and interconnections for pedestrians on semi-public pedestrian realms, and greenways. Specific community open space types are required for each of the various community types.
 

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.
 
 
 

REGIONAL OPEN SPACES

 

 

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 space.
 
 
 

CONCLUSION

 

 

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.

Chapter 6

BUILDING SUSTAINABLE COMMUNITIES THROUGH OPEN SPACE CONSERVATION

 

Robert Pirani

Director-- Environmental Projects

Regional Plan Association


Introduction

 

 

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 treatment plants.
 

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
 
 
 

Land: A Common Thread Between Environment and Economy

 

 

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:
 

Conserve Irreplaceable Open Space Resources

 

 

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 officials.
 

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.
 
 
 

Achieve Greater Efficiencies in the Consumption of Land

 

 

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 activity.
 

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
 
 
 

Maintain and Restore the Physical and Biological Functions of Ecological Systems

 

 

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 suburbs.19
 

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.
 
 
 

Achieve Conservation Goals At An Affordable Price

 

 

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
 
 
 

Conclusion: Building Sustainable Communities

 

 

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.
 
 
 

Endnotes

 

 

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. 1995.
 

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, February, 1992.
 

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. 1995.
 

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.)
 

Chapter 7

 
 

The Economic Benefits of Open Space

 


Stephen Miller

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.


-- Hindu Prayer

Introduction

 

 

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 components:
 


  Natural capital is rapidly becoming more and more scarce as open space is increasingly converted to or degraded by man-made capital. Yet the value of what is being lost often goes unnoticed or unmeasured.
 

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 ecosystem function.
 

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:
 

1. oxygen;
 

2. water;
 

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
Regulation
Carrier
Production
Information
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.
 
 
 

Costs of Development

 

 

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 services forever.
 

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.
 
 
 

Principles of Cost-Benefit Analysis

 

 

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.
 


This can be visualized graphically. If we let a vertical axis represent willingness to pay for one or more environmental services and a horizontal axis represent the quantity of that environmental service supplied, then individual demand curves can be plotted. Lines A, B, and C in the chart below show different examples of willingness to pay and optimum quantity of environmental service desired. Person A is willing to pay three times as much for "three units" of the environmental service as C is willing to pay for just "two units" of the same resource. Person B is willing to pay more for less of the environmental service than C. Line D is the total social demand curve and equals the added total of individual demand curves A, B, and C.

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.
 
 
 

Enhancement Value

 

 

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.
 
 
 

Option Value

 

 

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, 1985).
 
 
 

Market And Surrogate-Market Price Valuation Methods

 

 

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 acre.
 

Wetland benefits were identified and divided into four groups:
 

Using purchases made by public agencies during the same period for properties having wildlife and open space characteristics, differences in cost between individual wells and municipal supply, and costs avoided by flood control measures, the following values were obtained:
 
Annual Value Per Acre of Wetlands

 

Type of Benefit

Annual Value Per Acre Based on Productivity 

(In Dollars)

High Medium Low
Wildlife 70 35 10
Visual/Cultural 270 135 20
Water Supply 2800 1400 400
Flood Control 80 40 10
Totals 3220 1610 440

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).
 
 
 

Travel-Cost Approach

 

 

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.
 


Green Tourism and Sportsmen

 

 

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).
 
 
 

Conclusion

 

 

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.
 
 
 

Bibliography

 

 

Abelson, Peter W. "Property Prices and the Value of Amenities." Journal of Environmental Economics and Management 6, 11-28 (1979).
 

Altshuler, Alan; Jose Gomez-Ibanez; and Arnold Howitt. "Paying for Growth: A Private Obligation?" in February Land Lines. Cambridge: Lincoln Institute of Land Policy, 1991.
 

Barringer, Richard, ed. Toward a Sustainable Maine. University of Southern Maine. 1993
 

Bergman, David. "Does Development Really Pay for Itself?" in News Reporter. Warrenton: Piedmont Environmental Council, 1991.
 

Berkes, Fikret and Carl Folke. "Investing in Cultural Capital for Sustainable Use of Natural Capital." In Investing In Natural Capital. Island Press, Washington, D.C. 1994.
 

Berry, Thomas. The Dream of the Earth. San Francisco: Sierra Club Books, 1988.
 

Bormann, F. Herbert; and Stephen R. Kellert; ed. Ecology, Economics, Ethics: The Broken Circle. New Haven: Yale University Press, 1991.
 

Brabec, Elizabeth; and Andrew Zehner. The Economics of Community Preservation: An Annotated Bibliography. Washington: Scenic America, 1990.
 

Brighton, Deborah and Jim Northup. "The Tax Base and The Tax Bill." Montpelier: Vermont League of Cities and Towns and Vermont Natural Resources Council, 1990.
 

_________. "Fiscal Impact Analysis: Conservation Easements on Two Parcels; Granville, Vermont." Vermont Land Trust, 1990.
 

Brooks, Andree. "Swapping Land in Exchange for Deals on Taxes." New York Times. March 17, 1991, p. 28.
 

Burchell, Robert W. and David Listokin. The Fiscal Impact Handbook. New Brunswick: Rutgers University, 1978.
 

Bureau of Taxation. "Effects of Easements on Just Value." Property Tax Bulletin No. 24. State of Maine, 1983.
 

__________. "Farm and Open Space Tax Law." Property Tax Bulletin No. 18. State of Maine, 1990.
 

Byran, Todd A. "Developments and Taxes: Facts Versus Fiction." Mendham, N.J.: Association of New Jersey Environmental Commissions.
 

Callaghan, Tom. Fiscal Impact of Development. Boston: Metropolitan Area Planning Council.
 

Caputo, Darryl F. Open Space Pays; The Socioenvironomics of Open Space Preservation. Morristown: N. J. Conservation Foundation, 1979.
 

Colgan, Charles S., Wayne Curtis, Lloyd C. Irland, and Karen Tilberg. "In Search of a Green Economy." Habitat 8, 3 ; 14-28; June, 1991.
 

Colgan, Charles S. Personal Communication. April, 1992.
 

Cornell Cooperative Extension; and American Farmland Trust. "Cost of Community Services Study: Dutchess County." Washington: 1989.
 

Cortese, Anthony D. and Audrey S. Armoudlian. "Fostering Ecological and Human Health." Physicians for Social Responsibility Quarterly. Boston: 1, 2; June, 1991.
 

Costanza, Robert, ed. Ecological Economics: The Science and Management of Sustainability. New York, Columbia University Press. 1991.
 

Current Use Advisory Board, "Criteria for Current Use Assessment." Concord: RSA 79-A and Chapter Rev 1200 for Current Use, 1990.
 

Daly, Herman E. "Operational Principles for Sustainable Development." Reprinted in Earth Ethics. Washington: Green Fire Foundation. 2, 4. 1991.
 

Daly, Herman E. and Kenneth N. Townsend, ed. Valuing the Earth. Cambridge, MA, M.I.T. Press. 1993.
 

Daly, Herman E. "Operationalizing Sustainable Development By Investing In Natural Capital." In Investing In Natural Capital. Island Press, Washington, D.C. 1994.
 

de Groot, Rudolf S. "Environmental Functions and the Economic Value of Natural Ecosystems. In Investing In Natural Capital. Island Press, Washington, D.C. 1994.
 

Devall, Bill and George Sessions. Deep Ecology. Salt Lake City: Gibbs Smith, 1985.
 

Diehl, Janet and Thomas S. Barrett. The Conservation Handbook. Alexandria: Land Trust Exchange, 1988.
 

Doucette, Robert, Sterling Dow III, Janet Milne, and Patricia Solotaire. The Comparative Economics of Residential Development and Open Space Conservation. Portland: Allagash Environmental Institute, 1977.
 

Economic Development Strategy Task Force. "Establishing The Maine Advantage: An Economic Development Strategy for the State of Maine." Augusta: Department of Economic and Community Development, 1987.
 

Ehrlich, Paul R. "Ecological Economics and the Carrying Capacity of Earth." In Investing In Natural Capital. Island Press, Washington, D.C. 1994.
 

Folke, Carl, Monica Hammer, Robert Costanza, and AnnMari Jansson. "Investing in Natural Capital -- Why, What, and How?" In Investing In Natural Capital. Island Press, Washington, D.C. 1994.
 

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 Farmland Trust, 1991.
 

_________."The Cost of Community Services in Agawam, Massachusetts." Washington: American Farmland Trust, 1991.
 

_________."The Cost of Community Services in Deerfield, Massachusetts. Washington: American Farmland Trust, 1991.
 

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 Audubon Society, 1987.
 

Guldner, F.D.; D.E. Morris; and G.E. Frick. "VII. The Fiscal Impacts of Alternative Development Scenarios in Rockingham and Strafford Counties, New Hampshire, 1988." Seventh in a series titled Land Use and Growth in New Hampshire. Durham: Department of Resource Economics and Community Development, University of New Hampshire, 1989.
 

Hiss, Tony. The Experience of Place. New York: Alfred A. Knopf, 1990.
 

Hufschmidt, M.M.; David E. James; Anton D. Meister; Blair T. Bower; and John A. Dixon. Environment, Natural Systems, and Development: An Economic Valuation Guide. Baltimore: The Johns Hopkins University Press, 1983.
 

Humbach, John. "Zoning for Open Space." Developments. Portland: National Growth Management Leadership Project, 3, 1; 1992.
 

_________. "A Land Ethic In Transition." Developments. 3, 1; 1992.
 

Jansson, AnnMari and Bengt-Owe Jansson. "Ecosystem Properties as a Basis for Sustainability." In Investing in Natural Capital. Island Press, Washington, D.C. 1994.
 

Krutilla, John V.; and Anthony C. Fisher. The Economics of Natural Environments. Washington: Resources for the Future, 1975, 1985.
 

Lacy, Jeff; "An Examination of Market Appreciation for Clustered Housing With Permanently-Protected Open Space." Monograph Series. Amherst, MA.: Center for Rural Massachusetts, Department of Landscape Architecture and Regional Planning, University of Massachusetts, 1990.
 

Lamb, Linda. "The Back Forty: Open Space in Subdivisions." Zoning News. Chicago: American Planning Association; September, 1991.
 

Maine Public Interest Research Group. Tax Facts: The Perils of Property. Portland: Maine PIRG, 1979.
 

Meadows, Donella H.; Dennis L. Meadows; and Jorgen Randers. Beyond the Limits. Post Mills, VT. 1992.
 

Myers, Norman. "Biological Diversity and Global Security." in Ecology, Economics, Ethics, 11-25, 1991.
 

Nantucket Land Council. "Balancing Today's Development and Tomorrow's Taxes." Nantucket: 1991.
 

National Trust for Historic Preservation; and Land Trust Exchange. Appraising Easements: Guidelines for Valuation of Historic Preservation and Land Conservation Easements. Washington: National Trust for Historic Preservation, 1984.
 

Nielsen, Reinald S. "Examination of Property Value Equalization in the State of Maine." Quoddy Regional Land Trust. 1992.
 

O'Neill, Brendan. "Open Space Pays." Vineyard Conservation Society Winter Newsletter. Vineyard Haven: Vineyard Conservation Society, 1992.
 

Park Service, National. Economic Impacts of Protecting Rivers, Trails, and Greenway Corridors. San Francisco: Rivers and Trails Conservation Assistance Program, 1990.
 

Perrings, Charles. "Biotic Diversity, Sustainable Development, and Natural Capital." In Investing In Natural Capital. Island Press, Washington, D.C. 1994.
 

Pimentel, David. "The Dimensions of the Pesticide Question." In Ecology, Economics, Ethics, 59-69.
 

Polinsky, A. Mitchell; and Steven Shavell. "Amenities and Property Values in a Model of an Urban Area." Journal of Public Economics 5, 119-129 (1976).
 

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Thomas, Holly L. "The Economic Benefits of Land Conservation." Tech Memo. Poughkeepsie: Dutchess County Planning Department, 1991.
 

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Chapter 8

Preserving Open Space and Environmentally Sensitive Land Without Raising Constitutional Claims

Lisa Moore, Esq.

Environmental Defense Fund

 

After all [if] a policeman must know the Constitution, then why not a planner?"(1)

Justice William Brennan


Introduction

 

 

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 sensitive lands.
 

The Power to Regulate Land Use and Early Challenges to that Power

 

 

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 Constitution.(8)
 

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)
 

Takings Challenges
 

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 in effect.
 

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 to him.(23)
 

A New Theory and New Concern for Land Use Planners: Regulatory Takings

 

 

Early Cases and the Penn Central Test
 

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 analysis.(28)
 

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 three-part test.
 

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 objectives.
 

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.
 

Mixing Due Process-Equal Protection Apples with Takings Oranges Bears Strange Fruit: Closer Scrutiny for Land Use Regulation

 

 

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 government liability.
 

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 of land.
 

Taking Away the Power to Protect Open Space and Environmentally Sensitive Land Through "Takings" Legislation

 

 

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 and compensation.
 

Assessment Legislation
 

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
 

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" Legislation Would Be Detrimental to the Public and Most Property Owners

 

 

"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 homeowner land.(63)
 

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 values.(64)
 

Conclusion

 

 

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.

Endnotes

 

 
 

Chapter 9

Open Space Is a Good Investment:

The Financial Argument for Open Space Preservation

A Resource Paper of the

Association of New Jersey Environmental Commissions (ANJEC)


Introduction

 

 

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 space:
 

In 1988 the governors of five New England states officially recognized open space as a characteristic responsible for bringing rapid economic growth to the region and for providing the foundation of a multi-billion dollar tourism industry.1
 

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 the findings:
 


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:
 

The 1968 state law (N.J.S.A. 40:56A et seq.) that permits municipalities to establish environmental commissions directs commissions to "keep an index of all open areas, publicly or privately owned." It further gives them the power to:
 

Avoiding the Costs of Residential Development

 

 

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
 
 
 

Case Studies

 

 

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 fire houses.
 

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:
 

The net cost for the development rights of the 720 acre farm was $10.4 million. The public investment for the development rights could be offset in less than 15 years by avoiding the higher cost of the development. From then on the town would incur only the positive revenue flow from the farmland and attain the statewide and municipal goal of farmland preservation. In contrast, the cost of services for a residential development would continue forever.4
 

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
 
 
 

Long-Term Costs of Commercial Development

 

 

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 open space.
 
 
 

ANALYZING THE COSTS OF DEVELOPMENT

 

 

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.
 

Basic Demography

* 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. ___________
 

Assumptions

* 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. _________
 

Method
 

* Educational outlay:

students per housing unit (d)_____ X cost per student (e)_____ = $________

PLUS

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) 4._________
 

* 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

Atlantic 609-345-6700

Burlington 609-265-5787

Camden 609-767-6299

Cape May 609-465-1086

Cumberland 609-453-2175

609-451-2800

Gloucester 609-863-6661

Hunterdon 908-788-1490

Mercer 609-989-6545

Middlesex 908-745-4014

Monmouth 908-431-7460

Morris 201-829-8120

Ocean 201-929-2054

Salem 609-769-4028/3108

Somerset 908-231-7000 ext. 7540

Sussex 201-579-0500

Warren 908-852-2579
 
 
 

Other Open Space Benefits

 

Reduced Public Costs for Flood Protection, Water Supply

 

 

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 estimate).11
 

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 is ongoing."13
 

Increased Property Values

 

 

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:
 

For example, a survey in Minnesota found that 61 percent of the suburban landowners adjacent to a rail-trail noted a property value increase as a result of the trail. The National Park Service cites several studies where appraisers and real estate agents claimed that trails were a positive selling point for suburban residential property, hobby farms, farmland proposed for development, and some types of small town commercial property.16 And increased property values mean increased property tax revenues for local governments.

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 city residents.
 

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
 

Increased revenues from tourism

 

 

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
 
 
 

Reduced Borrowing Costs for Municipalities

 

 

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.
 
 
 

The Advantages of Development in Centers

 

 

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:
 

A town can realize savings by directing development near existing or planned centers-- places already (or planned to be) served with sewers, water lines, and other infrastructure.

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:
 

A 1995 Rutgers University review of three national studies for the tri-state Delaware Estuary Program confirms significant savings with center-oriented development versus sprawl. According to this study, planned growth saves 25 percent in road costs, 15 percent in water and sewer costs, 2 percent in fiscal impact, while consuming 43.5 percent less land.26
 

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:
 

Preserving Open Space in Your Community

 

 

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 greenway plans.
 

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 preservation programs.
 

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- 7713.
 

* 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:
 

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 (973-425-0360).
 

* 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).
 

BIBLIOGRAPHY

 

 

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 contacts.
 

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 calculations.
 

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 programs.
 

This ANJEC Resource Paper was made possible by a grant from The Fund for New Jersey.
 

ENDNOTES

 

 

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 resources, worksheets.
 

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, 1996.
 

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.
 

27. Ibid.

Appendix I

Know What You Are Chasing

 

Leonard W. Hamilton, Ph.D.

Rutgers University


The Theory of the Ratables Chase

 

 

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 should.
 

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 fix.
 
 
 

A Specific Example

 

 

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.
 
 
 

Why the Ratables Chase Fails

 

Miscalculation of the Real Costs

 

 

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:
 

Garbage

 

 

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.
 

Police

 

 

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 there.
 

Roads

 

 

The increased traffic will result in additional repairs and improvements to roadways.
 

Water and Sewer

 

 

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 extra use.
 

Fire Protection

 

 

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 organization.
 

Government

 

 

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 municipality.
 

Education

 

 

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.
 

Failure to Recognize the Economic Benefits of Open Space

 

 

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.
 

Coming Back with Hat in Hand

 

 

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.
 

Paying More for Less

 

 

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.
 

Who Can Do the Calculations? You Can.

 

 

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.
 

Things You Need to Get Started:

  It will be helpful to know the total population, the number of students in the school system, the number of households, and related information. This may be available through Town Hall, the municipal library, or the local newspaper.
  The municipal budget will also be available through Town Hall or the local newspaper. Usually a summary form is sufficient if it outlines the tax revenues and individual budget categories such as schools, police, fire, street department, etc.
 
 
  Many counties will publish an annual County Data Book that will include comparisons of the county's municipalities on all sorts of interesting measures such as average residential taxes, average income, proportion of citizens in different age groups, poverty levels, number of housing units, and so forth.
  This will be a bit more difficult to find, but it may be useful to know such things as the number of miles of roadways in the town, the total and remaining capacity of the municipal sewerage treatment plant, the remaining capacity of the landfill for solid wastes, traffic counts on major roadways, availability of public transportation, recreational facilities, and so forth.
  This report will include some of the important data about the size of the project, the number of housing units, the number of workers in a factory, and so forth.
 
 
 

Go Figure:

The next step is to begin to make calculations and estimates. It is important to avoid getting trapped in too much detail at this stage--be bold and make rough, but realistic estimates. For example, if a new office building is being proposed with 300 workers, here are some of the estimates that you can make:
  Two things will become apparent as you begin to consolidate your calculations into an organized report and compare it point-by-point with that of the developer's consultants: The first will be that your calculations cannot possibly be accurate. The second will be that neither are theirs! The important thing is to examine as many of the financial impacts as possible to determine if the proposed project will benefit the community. Anything else is poor planning.
 


Appendix II

Impact of Copperas Ridge Project on Rockaway Taxpayers

A Report Used in a Successful Case History

 

Leonard W. Hamilton, Ph.D. Alice Puleo, Project Director

Rutgers University Morris Parks and Land Conservancy



History

 

 

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.
 

Fiscal Impact Study Conclusions

 

Method

 

 

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:
 


Table I

Projections Using Township/Developer Data

Municipal Services Local School District Regional H.S. District Total
Revenue $1,147,728 $1,780,149 $995,478 $3,923,355
Costs $ 920,642 $2,640,000 $759,000 $4,319,642
+/- $ 227,086 ($859,851) $236,478* ($396,287)

 

* 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 1993:
 

($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.
 


Table II

Projections Using More Realistic Numbers and Including

Costs for Required Local School Expansion

Municipal Services Local School District Regional H.S. District Total
Revenue $896,654 $1,390,728 $777,710 $3,065,092
Costs $985,087 $3,529,400 $759,000 $5,273,487
+/- ($88,433) ($2,138,672) $18,710 ($2,208,395)

 

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.
 
 
 

Municipal Services

 

Costs

 

Golf Course

 
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
 
 
 
Non-Residential Allocation Added

Assessment

Second C-R Coefficient Estimated

Added Cost

$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.
 
 
 

Residential

 

 

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:
 


$920,642 + $64,445 = $985,087

Revenues

Market Value Equalization Ratio Assessed Value
New Homes*

(350 @ $500,000)

$175,000,000 62.83% $109,952,000
Golf Course $11,400,000 62.83% $7,162,620
Total $186,400,000 62.83% $117,114,620

 
 
 

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
 

Total $91,495,320
 
 
 

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
 
 
 

Costs

 
Grade Per Unit Multiplier Number of Students Public School Multiplier Total

Students

350 New

Homes

K-6 0.803* 281 0.8418** 237
7-8 0.305  107 0.8743  93

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 model.
 

The more realistic student numbers would be as follows:
 
Grade Per Unit Multiplier Number of Students Public School Multiplier Total

Students

350 New

Homes

K-6 0.803 281 0.90 253
7-8 0.305 107 0.90  96

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.
 

Revenues

 

 

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
 
 
 

Regional High School District

 

Costs

 
Grade Per Unit Multiplier Number of Students Public School Multiplier Total

Students

350 Homes 9-12 0.220 77 0.8950 69

The Regional District Costs for 69 new students at $11,000 per student would be $759,000 as entered in Tables I and II.
 

Revenues

 

 

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
 
 
 

Conclusions

 

The Unanswered Questions

 

Appendix III

 

About the Authors

 

 
 
 

Association of New Jersey Environmental Commissions (ANJEC)

 

 

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

 

 

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

 

 

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, Esq.

 

 

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, Ph.D.

 

 

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

 

 

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 communities.
 
 
 

Alice Puleo

 

 

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, Ph.D.

 

 

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.
 

Hon. Stuart Udall

 

 

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

 

 

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
 

Acknowledgments

 

 

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

Meyersville, N.J.

October, 1997
 

Funding for the Benefits of Open Space was provided by The Geraldine R. Dodge Foundation, The Victoria Foundation and The Schumann Fund for NJ.

1.

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.

30. Id.

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.