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Coordination of Transportation Planning and Land Use Control: A Challenge for Virginia in the 21st Century
Click HERE for graphic. Click HERE for graphic. FINAL REPORT COORDINATION OF TRANSPORTATION PLANNING AND LAND USE CONTROL CHALLENGE FOR VIRGINIA IN THE 21ST CENTURY Robert D. Vander Lugt Graduate Legal Assistant and Salil Virkar Graduate Legal Assistant (The opinions, findings, and conclusions expressed in this report are those of the authors and not necessarily those of the sponsoring agencies.) Virginia Transportation Research Council (A Cooperative Organization Sponsored Jointly by the Virginia Department of Transportation and the University of Virginia) Charlottesville, Virginia June 1991 VTRC 91-R10 PROJECT ADVISORY COMMITTEE Carolyn H. Zeller, Chairman, Transportation Planning Programs Manager, Northern Virginia District Virginia Department of Transportation Donald J. Emerson Member, Subregional Citizens' Advisory Committee Co-Chairman, I-95 Citizens Task Force Wayne S. Ferguson Senior Research Scientist Virginia Transportation Research Council Angela R. Fogle Transportation Technical Programs Supervisor, Northern Virginia District Virginia Department of Transportation Robert L. Moore Chief of Transportation Planning Fairfax County Office of Transportation John R. Nesselrodt Principal Transportation Planning Engineer, Central Office Virginia Department of Transportation Patricia Nicoson Public Works Planner Arlington County Department of Public Works Jack Wierzinski Chief of Transportation Planning Prince William County iii TABLE OF CONTENTS EXECUTIVE SUMMARY. . . . . . . . . . . . . . . . . . . . . . . . . vii PREFACE . . . . . . . . . . . . . . . . . . . . . . . . . . . .ix ACKNOWLEDGMENTS. . . . . . . . . . . . . . . . . . . . . . . . . . .xi INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATE AND LOCAL GOVERNMENT IN VIRGINIA . . . . . . . . . . . . . . . 2 Overview . . . . . . . . . . . . . . . . . . . . . . . . . 2 Dillon's Rule. . . . . . . . . . . . . . . . . . . . . . . 3 The Transportation Context . . . . . . . . . . . . . . . . 5 State and Local Government Today . . . . . . . . . . . . . 6 THE TRANSPORTATION PLANNING PROCESS IN VIRGINIA. . . . . . . . . . . 7 State Mandate and Mission. . . . . . . . . . . . . . . . . 7 Local Participation. . . . . . . . . . . . . . . . . . . . 9 LAND USE CONTROL IN VIRGINIA . . . . . . . . . . . . . . . . . . . .10 Local Mandate and Mission. . . . . . . . . . . . . . . . .10 Comprehensive Planning . . . . . . . . . . . . .11 Official Map . . . . . . . . . . . . . . . . . .12 Subdivision Ordinance. . . . . . . . . . . . . .12 Zoning Controls. . . . . . . . . . . . . . . . .13 Site Plan Review . . . . . . . . . . . . . . . .14 Capital Improvement Plan . . . . . . . . . . . .15 Regional Coordination of Land Use Planning . . . . . . . .15 Council of Governments . . . . . . . . . . . . .15 Planning District Commission . . . . . . . . . .16 Informal Coordination. . . . . . . . . . . . . .16 State Involvement. . . . . . . . . . . . . . . . . . . . .17 Resort to the Courts . . . . . . . . . . . . . . . . . . .17 Assessing the Effectiveness of Land Use Planning: Tyson's Corner . . . . . . . . . . . . . . . . . . . . . . . . . .20 TOOLS FOR COORDINATION . . . . . . . . . . . . . . . . . . . . . . .21 Classic Planning Model . . . . . . . . . . . . . . . . . .22 Alternative Conceptions. . . . . . . . . . . . . . . . . .25 Fiscal Tools . . . . . . . . . . . . . . . . . . . . . . .28 Proffers . . . . . . . . . . . . . . . . . . . .28 Impact Fees. . . . . . . . . . . . . . . . . . .30 Transfer of Development Rights . . . . . . . . .31 Special Tax Districts. . . . . . . . . . . . . .32 Transportation Corridors . . . . . . . . . . . .33 v Organizational Tools . . . . . . . . . . . . . . . . . . .34 Regional Funding Authority . . . . . . . . . . .34 Regional Compact . . . . . . . . . . . . . . . .36 Transportation Management Associations . . . . .38 Regulatory Tools: Trip Reduction Ordinances. . . . . . . .38 STRUCTURAL IMPEDIMENTS . . . . . . . . . . . . . . . . . . . . . . .39 The Labeling Problem . . . . . . . . . . . . . . . . . . .39 Dillon's Rule and Local Authority. . . . . . . . . . . . .41 Fragmentation of the Regional Role . . . . . . . . . . . .42 Organization and Role of VDOT. . . . . . . . . . . . . . .45 COMPARISON TO OTHER STATES . . . . . . . . . . . . . . . . . . . . .47 California: San Diego. . . . . . . . . . . . . . . . . . .47 Florida. . . . . . . . . . . . . . . . . . . . . . . . . .49 Maryland: Montgomery County. . . . . . . . . . . . . . . .51 CONCLUSIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . .53 Limits of a Demand Responsive Approach . . . . . . . . . .54 Limits of a Regulatory Approach. . . . . . . . . . . . . .54 The Need for Effective Regional Planning . . . . . . . . .56 Achieving Political Consensus. . . . . . . . . . . . . . .58 RECOMMENDATIONS. . . . . . . . . . . . . . . . . . . . . . . . . . .59 State. . . . . . . . . . . . . . . . . . . . . . . . . . .59 Local. . . . . . . . . . . . . . . . . . . . . . . . . . .61 Regional . . . . . . . . . . . . . . . . . . . . . . . . .62 Private. . . . . . . . . . . . . . . . . . . . . . . . . .64 vi EXECUTIVE SUMMARY The public power to control the use of land is primarily exercised by city and county officials in Virginia. This is accomplished by means of comprehensive plans, official maps, subdivision ordinances, zoning statutes, site plan reviews, capital improvement plans, and other regulatory and proprietary actions of local governments. Control over the location and characteristics of transportation facilities, including roads and mass transit, is exercised primarily by the Commonwealth Transportation Board through the Virginia Department of Transportation (VDOT). Unlike most other states, Virginia retains control over and responsibility for almost all roads not within an incorporated city. Though it does complicate coordination, this separation of land use control and transportation planning responsibility is not inherently unworkable. This structure seems to have served the Commonwealth well for some 50 years. However, new pressures have begun to place great stress on it. Efforts have been made to better coordinate land use controls and transportation planning decisions. A number of innovative tools have been employed by localities and by the state. Several regional organizations designed to foster cooperation have been created, and a subregional transportation planning process has been undertaken to focus coordination efforts in Northern Virginia. The institutions and structures in place, even with recent efforts at coordination, have not alleviated the growing pressures on the system. There are two major kinds of tension. First, there is the struggle to coordinate land use with transportation within a given jurisdiction. The traditional process of planning seeks to address this problem. It has proven to be an intractable problem, however. Localities facing rapid urbanization have been caught in a battle between growth advocates and slow-growth proponents. They have been criticized for the decline in mobility as more cars clog the roads, and at the same time, they have been criticized for encouraging new development by expanding transportation facilities to alleviate congestion. For many, the answer seems to have been to encourage or allow only business and commercial development, which enriches public coffers, while discouraging or banning residential development, which inevitably requires costly services. This "solution" for each locality, which might be called the beggar-thy-neighbor approach, has only exacerbated the regional problem since workers and shoppers have been forced into longer trips over more congested roads to reach their destinations. This, then, is the second major kind of tension- the difficulty of coordinating across jurisdictional boundaries and levels of government. State government, like the cities and counties, has not been immune to destructive incentives. As the question of where and when to build new transportation facilities becomes more and more politically charged, VDOT has faced a situation in which its traditional emphasis on engineering solutions to transportation problems is no longer reaping results. Roads that are engineered to fit projected needs nonetheless become the object of heated protests from local citizens' groups. vii Because these new tensions arise out of more fundamental tensions between mobility and growth, and between freedom of movement and preservation of a sense of community, they can never be completely eradicated. They can, however, be managed and channeled into creative outlets. Effective management can best be accomplished at the regional level. However, regional coordination is difficult in Northern Virginia at present. The legal and institutional structure tends to polarize the process by focusing authority at the local and state levels. This study identifies four institutional impediments to an improved coordination of land use and transportation policies. First, the historical basis for granting greater independent authority to city governments as compared to county governments has eroded with the growth of concentrated population centers in unincorporated areas. The differential in authority and treatment by the Commonwealth should be removed. Second, the Commonwealth's close supervision of local govern- ment activities, which results from a strict adherence to Dillon's rule, should be examined, and greater local authority should be granted in response to changing needs. Third, the regional voice in Northern Virginia should be strengthened by merging several organizations that perform similar or complimentary functions in the process of coordination. And fourth, the geographical organization of VDOT and its role should be altered in order to create a strong regional voice within the Department that could assist in vertical (state/local) as well as horizontal (local/local) coordination. In rapidly urbanizing areas of the state, VDOT should develop and strengthen its staff expertise in planning, in order to facilitate coordination with local planners. These structural changes must be coupled with effective policy. Such a policy can be neither entirely demand-responsive nor entirely regulatory. It must combine a commitment to providing adequate infrastructure with a commitment to manage and contain demand. Effective management requires that the various actors in the process adapt to an environment in which, increasingly, there are no policies that will be accepted across the board. All measures will be compromises. All actors, public and private, must participate in an ongoing effort to balance mobility and growth with the quality of life. Institutions that will facilitate this kind of ongoing process can be adapted from those now in existence. Such institutions should be designed to encourage state and local problem-solving on the regional level. In order to achieve political consensus, which has often been lacking on these issues, policy initiatives should combine demand management measures with financing for additional highway and transit needs, a dispute resolution mechanism, and a structure for continuous citizen input and intergovernmental accommodation. These elements could form the basis for a sort of regional compact that would replace destructive incentives, such as those of the beggar-thy-neighbor scenario described above, with incentives for regional cooperation in the coordination of land use controls and transportation plans. viii PREFACE In an effort to reverse Northern Virginia's drift toward transportation gridlock, Governor Gerald L. Baliles directed the Secretary of Transportation and Public Safety, Vivian E. Watts, to develop a transportation plan for the region. Secretary Watts formed a Policy Planning Committee composed of senior municipal and county officials, members of the General Assembly, and other key state officials. This committee arrived at a plan for meeting the region's projected transportation needs through the year 2010 and is now in the process of refining and updating the plan. As part of that process, the committee called for a 'study of better methods for coordinating land use and transportation planning functions.' The Virginia Transportation Research Council was asked to assist with that task. The report that follows provides a survey of the legal, institutional, and procedural environments within which these planning processes operate in Virginia and compares the situation in Virginia to that in other states. ix ACKNOWLEDGMENTS The authors express their deepest appreciation to the members of the Project Advisory Committee, who ensured that the varied interests most concerned with the development of Northern Virginia were represented and provided the advice and insight essential to the success of this study. Special thanks goes to Carolina Highland Seller who chaired the Advisory Committee. Though they cannot be mentioned by name, our thanks also go to the dozens of local and state officials and private citizens who shared their insights in interviews with the authors. x Plans are nothing: Planning is everything. -Dwight D. Eisenhower FINAL REPORT COORDINATION OF TRANSPORTATION PLANNING AND LAND USE CONTROL: A CHALLENGE FOR VIRGINIA IN THE 21ST CENTURY Robert D. Vander Lugt Graduate Legal Assistant and Salil Virkar Graduate Legal Assistant INTRODUCTION Throughout the United States, transportation planning and growth management have become top priorities for many state and local officials. Indeed, traffic congestion is now endemic to America's largest cities. A recent survey found that 9 out of 10 drivers believe that the nation's roads are too crowded.1 Moreover, it is predicted that, within 20 years, the number of miles driven annually by Americans will more than double.2 One of the areas of the country with particularly severe traffic congestion is the Washington Metropolitan area. Northern Virginia, which is part of the Washington Metropolitan area, has experienced rapid population growth and economic development. Since 1980, the population of many Northern Virginia communities has increased by 25 percent or more, but the number of vehicles in Northern Virginia has increased at twice the rate of the area's population.3 Population growth in the region and the construction of new residences, retail outlets, and office facilities have contributed to a rise in commuter traffic and traffic congestion. The traffic congestion problem is so acute that even the $1.4 billion of additional money committed to local transportation projects in Northern Virginia by the recent Baliles transportation initiative may not be enough to arrest the deterioration of traffic conditions there. Moreover, although emphasis has traditionally been on transporting commuters to the District of Columbia the largest (and fastest growing) proportion of Northern Virginia commuters now travel to work locations in _________________________ 1. Schoolmuster, Ron. 1989. "Traffic is Top Hassle for Drivers.' USA Today, October 3. 2. Rumsey, Anne. 1989. "Driving Doubling in Next 20 Years." Fairfax Journal, September 28. 3. Id. other Northern Virginia suburbs.4 In order to adapt the transportation network to the changing patterns of development in the region, land use and transportation planning policies must be closely coordinated. Such close coordination, however, has been difficult in Virginia where land use planning is the responsibility of localities, and transportation plan- ning is primarily the state's responsibility. This study was undertaken as part of the Northern Virginia Sub- Regional Transportation Planning Process at the request of the Transportation Planning Division of the Virginia Department of Transportation The policy planning committee of the sub-regional planning process, composed of senior municipal and county officials, members of the General Assembly, and other key state officials is in the process of refining and updating its transportation plan for the region. As part of that process, the committee has called for a "study of better methods for coordinating land use and transportation planning functions." The report that follows is a response to that request and is an attempt to survey the legal, institutional, and procedural environments within which these planning processes operate in Virginia. STATE AND LOCAL GOVERNMENT IN VIRGINIA Overview In order to understand the nature of the relationship between state and local government in Virginia, it is necessary to explore the historical origins of -local government in the Commonwealth. Local government in Virginia can be divided into at least two distinct categories: counties and independent cities. At both the county and the city level, however, local government exists by virtue of state authority. In 1634 the Virginia General Assembly, desiring administrative efficiency, created eight counties (called "shires").5 The primary functions of the county governments were to correct taxes, administer justice, and enforce the laws.6 Eighty-eight years later, the first independent cities, Williamsburg and Norfolk, were created.7 Unlike counties, however, cities were not created to meet any special administrative needs; rather, they were established because of pressures for municipal self-government. Because counties were created as administrative subdivisions of the Commonwealth, their powers were severely restricted. The powers and duties of counties and cities have changed. Yet, today, the _____________________________ 4. Northern Virginia 2010 transportation Plan, VDOT, January 27, 1989, p. 7. 5. Wirt, Clay L. 1989. "Dillon's Rule." Virginia Town and City, August, p. 12. 6. Id. 7. Id. 2 municipal officers of independent cities still have greater control over local matters than do their counterparts at the county level. This distinction, understandable in historical terms, fails to reflect the needs of unincorporated county areas with increasingly dense populations. Even where counties and towns are similarly treated, their powers are closely circumscribed. The Virginia Constitution establishes the relationship between the state and the localities in Article VII. Throughout Article VII, the notion that localities are creatures of the state continues to be firmly embedded in the Commonwealth's constitutional law. For example, Section 2 of Article VII enables the General Assembly to provide for the organization and government of the localities. The Constitution states: "The General Assembly shall provide by general law for the organization, government, powers, change of boundaries, consolidation, and dissolution of counties, cities, towns, and regional governments."8 Section 3 also demonstrates the omnipotence of the General Assembly: "The General Assembly may provide by general law or special act that any county, city, town, or other unit of government may exercise any of its powers or perform any of its functions and may participate in the financing thereof jointly or in cooperation with the Commonwealth or any other unit of government within or without the Commonwealth."9 Therefore, under the Virginia Constitution, cities and counties have very little inde- pendent authority. Though the realities of providing daily services have strengthened the hand of the localities, the Commonwealth has adhered firmly to the belief that authority must always come from the General Assembly. This principle has been the bedrock of municipal law in Virginia. Dillon's Rule Since the General Assembly must grant a county or city the power to undertake some activity, there may be occasions when the authority of a locality is questioned. It is precisely on such occasions that Dillon's Rule, which is a rule of statutory construction, is applied. Under Dillon's Rule, the power of the locality is construed narrowly, thereby implying that the locality will most likely not have the power in question.10 Dillon's Rule was formulated by Iowa Supreme Court Chief Justice John F. Dillon, one of the nation's foremost nineteenth century authorities on municipal law.11 The rule essentially consists of two elements. In the first element, the types of powers that a local government may possess are discussed. According to Dillon, "Local governments have only three types of powers: (1) those granted in express words, (2) those necessarily or fairly implied in or incident to the powers expressly granted, and (3) those essential to the declared objects and purposes of the corporation _______________ 8. Va. Const. Art. VII, Sect. 2. 9. Va. Const. Art. VII, Sect. 3. 10. Dillon's Rule: The Case for Reform," 68 Va. L. Rev. 693, 694 (1982). 11. Wirt, Clay L. 1989. "Dillon's Rule." V-Virginia 7bwn and City, August, p. 12. 3 not simply convenient, but indispensable."12 More important, however, the second element of Dillon's Rule states that "if there is any reasonable doubt whether a power has been conferred on a local government, then the power has not been conferred."13 Over the years, this aspect of Dillon's Rule has been used by Virginia courts to strike down local action as an exercise of power not granted by the General Assembly. Chief Justice Dillon manifestly distrusted local government, perhaps because he lived during a period of American history when corruption was widespread among local government officials.14 In addition, Dillon formulated his rule as a response to those individuals who claimed that local governments were endowed with certain inherent powers.15 Bolstered by Dillon's Rule, state legislators throughout the country seized the opportunity to take control of inefficient and corrupt local governments and to pass laws concerning every conceivable detail of local life.16 In a number of states, citizens reacted to the control of local governments by state legislatures by proposing an alternative scheme. The philosophy of these reformers, known as the doctrine of municipal home rule, was based on the concept of a "moral" right to local self- government.17 Under municipal home rule, the local government is given the freedom to control its own affairs without interference from state government. In those states that have adopted municipal home rule, the state constitution gives localities the right to enact home rule charters.18 Citizens of a locality typically have the option of adopting a home rule charter or remaining under direct state authority. Under the charter, a city or county can reserve for itself the power to control affairs of local concern. Despite this broad grant of power, however, the state in most cases still retains a measure of control through its power to pass a uniform law that would curtail the localities' power in specified areas. Although municipal home rule swept most of the nation, Virginia was one of a handful of states that retained the traditional Dillonþs Rule approach to local government. The result has been that courts in Virginia have been quick to strike down ordinances or actions of local government that are perceived to be outside the scope of powers granted by the General Assembly. Ironically, however, the Supreme Court of Virginia has been willing to allow an implied local power where such a power was necessary to fulfill an obligation mandated by the General Assembly.19 12. Id. 13. Id. at p. 12-13. 14. Id. at p. 13. 15. Id. 16. Id. 17. Id. 18. Id. 19. "Dillon's Rule: The Case For Reform,' 68 Va. L. Rev. 693, 699 (1982). 4 The Transportation Context The economic burdens that were placed on Virginia as a consequence of the Civil War resulted in a fear of bond financing for public works projects by the majority of citizens in the Commonwealth.20 Indeed, the 1902 Virginia Constitution even contained a provision banning the use of bond financing for public works. In the area of transportation financing, an alternative method of funding state transportation projects was necessary. In 1923, the General Assembly created the pay-as-you-go financing scheme by imposing a gasoline tax for the first time in the Commonwealth's history. Under the pay-as-you-go approach, transportation projects would be financed only from the revenues that had been gained through taxes. Thus, the state could only build roads to the extent that tax revenues existed. By 1932, the depression had hit Virginia, resulting in a fiscal crunch. In a move to cut government spending, State Senator Harry F. Byrd sponsored the Secondary Roads Act of 1932 (also known as the Byrd Road Law). The Byrd Road Law did not affect Virginia's pay-as-you-go financing system; however, it did place under state control all "public roads, causeways, landings, and wharves" that had formerly been under local control.21 The county feeder-road system, which was the largest part of the state road network in terms of mileage, was included in the roads that were taken over by the state. In addition, the Byrd Road Law created a highway trust fund that would serve as a fund raising and fund allocation mechanism within the Commonwealth. Although the Byrd Road Law represented a huge gain to Virginia's counties in terms of savings on highway expenditures, urban leaders and officials were skeptical. To cities of the Commonwealth, the 1932 Secondary Roads Act was merely an expression of the favoritism shown to Virginia's rural regions by the Byrd organization. Although the General Assembly would assume responsibility for construction and maintenance of county roads, city officials were responsible for building and maintaining streets. One example of the disparity in aid received between counties and cities is that in 1948-49, the Byrd- controlled General Assembly appropriated over $14 million in road funds to the counties but only $1.2 million to cities. Even more infuriating to city residents was the fact that they were paying state gasoline taxes to support county roads in addition to their own local taxes. This urban/rural schism would only deepen over time. Eventually, it undermined the strength of the Byrd political machine. Pay-as-you-go financing continued to be the only means by which transportation projects were to be financed. When the pay-as-you-go system became an issue in the 1953 gubernatorial race, Senator Byrd staked his reputation on the merits of the system. Shortfalls in revenues, however, meant that the pay-as-you-go financing scheme would not be sufficient to meet the state's transportation needs. Although 20. This section was adapted from an unpublished Virginia Transportation Research Council report entitled "The Baliles Transportation Initiative in Virginia, 1985-1988." 21. The Byrd Road Law did not apply to independent cities in Virginia or to Henrico County or Arlington County. These jurisdictions retained local control of roads. 5 a massive influx of funds from the federal government through the Federal Highway Trust Fund in the late 1950s helped to alleviate some of the deficits, it became apparent by 1965 that there would not be enough money. Moreover, the pay-as-you-go system under the Byrd Road Law was not being administered equitably. Counties continued to receive the vast majority of highway funds, and cities were removed from the fund allocation process. This distribution scheme was codi- fied in the Highway Acts of 1964, which adopted the Report of the 1962 Virginia Highway Study Commission (the Stone Commission). Under the 1964 Act, an arterial highway network was to be constructed almost entirely in rural areas, but city streets were removed from the state highway system. The pay-as-you-go system came under fire from those who claimed that it really did not provide an alternative to debt financing. These individuals focused on the heavy debt taken on by cities to fund services not funded by the state as proof of the failure of pay-as- you-go. They argued that the pay-as-you-go system, instead of avoiding debt financing, merely transferred the debt to cities. Recent referenda proposing that Virginia begin bond financing of transportation projects have failed to win the support of a majority of Virginians. Consequently, Virginia continues to work within the general transportation funding framework adopted in the 1930s, which involves pay-as-you-go financing and state responsibility for nearly all of the primary and most of the secondary roads. State and Local Government Today Intergovernmental tensions are still quite prevalent today, and funding for transportation projects remains a fundamental cause of that tension. Nevertheless, the conflict between urban and rural governments that was a fixture of the post World War H transportation finance debate is not quite as dramatic today. This is partly a result of the increased political clout and leverage that urban districts such as Northern Virginia have had in recent times. Population shifts toward the urban areas of the Commonwealth, which are reflected in the 1990 census returns, may accelerate these changes. Furthermore, there have been pressures in recent years to reject Dillon's Rule and adopt municipal home rule. Critics of Dillon's Rule argue that it is an anachronism relevant only at the time when local governments were marked by corruption and inefficiency.22 They also argue that given the realities of modern life in localities, it is unreasonable and impractical for the state to retain control over the localities in areas such as transportation.23 Though attempts to reverse the Dillon's Rule approach to local power 22. See Wirt, Clay L. 1989. "Dillon's Rule." Virginia Town and City, August, p. 15. See also, "Dillon's Rule: The Case for Reform," 68 Va. L. Rev. 693 (1982). 23. See, e.g., "The Need to Review Virginia's Local Government Structure," Report of the Local Government Attorneys of Virginia, Inc., 65 Newsletter of the University of Virginia Center for Public Service 13 (1988). 6 have never garnered enough votes to pass in the General Assembly, there has been some expansion of local authority. Proposals for change abound. In fact, Governor L. Douglas Wilder proposed in October of 1990 that localities be given the option of assuming greater control over their roads. While many local leaders responded positively to the suggestion, others asked for assurances that any transfer of authority would be accompanied by adequate funding.24 This seems to represent the crux of the issue today. Both state and local leaders stand ready for a modification of the Byrd system, but there is not yet a consensus as to how funding will be affected by any transfer of authority. THE TRANSPORTATION PLANNING PROCESS IN VIRGINIA Transportation planning in the Commonwealth, at least in recent years, has had both an engineering component and a political component. It is the interaction of these two factors that serves to create controversy when the state decides to build a highway. In the past, the engineering component was the predominant consideration in the planning process. More and more, however, as questions of funding and political power arise, the political component has become more pervasive in the decision-making process. In an era when citizens, and their elected representatives, are increasingly aware of the far- reaching effects of alternative transportation plans, traditional transportation planning processes are being challenged. Citizens', home-owners, and interest groups now often seek a direct voice in the process. State Mandate and Mission The principal actor in the transportation planning process is the Virginia Department of Transportation (VDOT). VDOT is responsible for design, construction, and maintenance of highways in most counties throughout the state. In the past, VD07s recommendations have been tantamount to approval of road projects. After the need for new road construction in one part of the state is brought to VDOT's attention or is recognized by VD07s staff, engineers study the situation, determine the most feasible route for the proposed highway, and then make the appropriate recommendation to the Commonwealth Transportation Board. It is this political body, which is composed of 14 members, that must make the final decision on whether or not to approve construction of the new road and what route it should take. In the past, there was very little question that VDOT's recommendation would be adopted by the Board. Board members, as political representatives with little or no expertise in the field, would regularly defer to the judgment of VDOT's engineers. The recent controversy over state Route 288 in _________________________ 24. Harris, John F. "Wilder Proposes Giving N. Va. Rule of its Roads," The Washington Post, October 26, 1990. 7 the Richmond area, however, demonstrates that the Board is not willing to rubber-stamp VDOT's recommendations.25 For a number of years, a bypass has been considered and proposed for the Richmond area to connect I-95 to I-64 and I-295. In response to the need for the construction of such a corridor, VDOT was requested to study the problem and recommend the most feasible route for the highway to take. The engineering staff of VDOT determined that the best corridor for Route 288 would be one that runs in a western direction south of the James River, then moved eastward after crossing the river, eventually joining I-295 where it intersects I-64. This route, however, met with strong opposition from residents of the region who would have preferred that Route 288 take an all western course that would connect with I-64 at a point west of I-295. VDOTþs proposed route would pass through residential developments as it moved in an easterly direction to I-295. The Commonwealth Transportation Board considered all of the proposed routes for the new highway and then-in a move that surprised many decided to reject VDOT's recommendations and adopt the all- western path for Route 288.26 This action signaled a rise in the relative importance of the political component over the engineering component in the planning process. The debate over Route 288 became polarized as communities in the Richmond area took sides depending on how the alternative proposals would affect their areas. For the first time, the transportation Board acknowledged these tensions and accommodated to the political pressures they generated. The growing importance of the political component in the planning process is bound to have a significant effect on future highway construction decisions. Once the Transportation Board has reached a decision and the General Assembly has allocated funds, VDOT is placed in charge of design and construction of the new road. At this point, land use decisions in the localities become particularly important since VDOT will have to acquire the right of way, make environmental assessments, and hold public hearings prior to construction. Obviously, the General Assembly is another key player in the transportation planning process. Though transportation funding is usually allocated using predetermined formulas, the General Assembly retains the authority to fund individual projects. Indeed, this is the one area where the political component can be discerned most easily in the planning process. The battle for vital highway funds has traditionally pitted rural legislators against those from urban areas. There is evidence that this urban-rural schism may be giving way to a more complex political interaction. For example, in'1982, legislative delegations from urban Northern Virginia and rural Southwest Virginia cooperated in temporarily blocking passage of a proposed gasoline tax increase in order to obtain, among other things, increased funding for the Washington Metropolitan Area Transit Authority. These delegations cooperated again in the 1989 General Assembly to gain passage of several ____________________________ 25. Burrows, Claude. Richmond Times-Dispatch, "Transportation Board Selects Western 288 Route." August 19, 1988 p.1. 26. Id. 8 transportation-related initiatives. One of these was an unprecedented move by the General Assembly, which, though it usually does not get involved in specific transportation projects, directed VDOT to spend some $700 million on improvements to US 58 in Southern Virginia.27 These examples illustrate, once again, the way in which transportation planning at the macro level is increasingly a product not merely of engineering inputs but also of political accommodation and interaction. Local Participation While Northern Virginia legislators in the General Assembly have sought greater support for highway construction in their region, localities in Northern Virginia have been working to gain greater control over actual decision-making in the area of transportation planning. Currently, however, the center of gravity of transportation planning in the Commonwealth is in VDOT. Nevertheless, the localities have an important role to play in the transportation planning process. Since transportation planning focuses on improved mobility throughout the Northern Virginia region, regional cooperation among the various jurisdictions in the area has become a critical aspect of the process. Moreover, planning must include the District of Columbia as well as suburban Maryland since these regions also form part of the metropolitan Washington transportation network. The Metropolitan Washington Council of Governments (COG), which is comprised of officials from Virginia, Maryland, and the District of Columbia, is a key player in the regional planning process. Although the COG was formed to deal with issues of interjurisdictional importance in a number of different areas, its National Capital Region Transportation Planning Board (COG/TPB) deals explicitly with transportation issues and is charged with formulating a long-range transportation plan for the area. 28 Yet the COG's role in the transportation planning process has been severely limited because, as a recent consultant's report notes: COG's constituents have not been willing to delegate their autonomy to the interstate regional body. They prefer the flexibility and the ability to deal with the needs of their own constituents. As a result, the main function of TPB has been to assemble and analyze regional data for long range forecasts.29 Another actor in the transportation planning process is the Northern Virginia Planning District Commission (NVPDC). Planning district commissions were created by the Virginia General Assembly to develop long-term plans for the region. _____________________ 27 Garland Ray L., þThe Larger Legislative Servings from Pork Barrel," Roanoke Times & World-News, September 14, 1989. 28. Kirby, Ronald F. "A New Long-Range Plan for the Region." The Region, Winter 1989, p.25. 29. Schwartz, Elinor and Callow Associates, Inc. A Solvable Problem: Transportation in Northern Virginia. p. 93. 9 Transportation, however, is one area where NVPDC's role has been extremely limited. The existence of other regional organizations such as the COG, Northern Virginia Transportation Commission (NVTC), and the Potomac-Rappahannock Transportation Commission (PRTC) has limited the demand for and the funding available for a significant NVPDC transportation-planning role. In the future, the NVPDC may acquire a more active role in the planning process by acting as a clearinghouse, providing an information system for VDOT that could update land use and transportation activity and predictions.30 The NVTC provides a policy forum for the coordination of mass transit contributions in Northern Virginia. This organization's role, however, is restricted to mass transit. Created by the state legislature in 1964, the NVTC also has the authority to levy a 2 percent gasoline sales tax to finance public transit.31 NVTCs role in planning, however, is limited. Thus, there are a number of organizations that could provide an active vehicle for regional cooperation in the area of transportation planning. VDOT has attempted to tap into these regional organizations. The ongoing subregional planning process is one example of such efforts to coordinate transportation planning. Effective coordination, however, has proved elusive. The priorities of localities are sometimes in conflict, even on a given high-way.32 Far from ameliorating these local conflicts, the patchwork collection of regional organizations has sometimes exacerbated them. Some experts have suggested-_ that VDOT would be most effective if it were to develop a brokering role, that is, if it were to convene localities and even regional organizations to resolve disputes.33 LAND USE CONTROL IN VIRGINIA Government restrictions on the use of private property, while never wholly absent from American life, were neither widespread nor systematically codified until the 1920s. Local Mandate and Mission In 1925, the Virginia General Assembly enacted legislation permitting local governments to plan and regulate land use. However, as late as 1976, almost three-quarters of Virginia was not governed by a comprehensive physical plan and 30. Id. at 98. 31. Id. at 97. 32. Id. at 98. 33. Id. at 101. 10 supporting zoning ordinance. In 1975, the General Assembly mandated that all counties, cities, and towns in Virginia create local planning commissions and develop comprehensive land use plans by 1980. The General Assembly indicated that its purpose in delegating such police power to the localities was to encourage local governments to improve the public health, safety, convenience and welfare of its citizens and to plan for the future development of communities to the end that transportation systems be carefully planned; that new community centers be developed with adequate highway, utility, health, educational, and recreational facilities; that the needs of agriculture, industry and business be recognized in future growth; that residential areas be provided with healthy surrounding for family life; that agricultural and forested land be preserved- and that the growth of the community be consonant with the economical use of public funds.34 Comprehensive Planning In the United States, unlike Europe, land use controls were imposed in response to specific threats to the urban environment and not from any desire to plan comprehensively for the physical future of communities. This ad hoc use of zoning powers has proved inadequate to the challenges facing communities in the last decades of the 20th century. In response to the state's mandate, all Virginia localities have now adopted a comprehensive plan for physical development. A comprehensive plan actually consists of a number of interrelated plans in any or all of the following functional areas: land use, transportation, community facilities, historic preservation, and redevelopment. It must show existing uses and planned or projected uses. It usually contains maps, plats, charts, and verbal descriptions of the planned long-range general development of the locality. Statutory and case law in Virginia require that the plan be general in nature, prospective, comprehensive, and based on thorough research and analysis.35 The Code also requires that the plan be reviewed at least once every five years to keep it up to date.36 VDOT and other state agencies with responsibility for public facilities are required by statute to cooperate with the localities in the development of local comprehensive plans "to the end that the plan will coordinate the interests and responsibilities of all concerned."37 The comprehensive plan, besides fostering long-range planning by public officials, serves to allow private development interests to conform their plans to desired community ends. One of the main purposes of the plan is to provide private parties and courts with a clear policy statement against which to judge zoning decisions. _________________________ 34. Code of Virginia 15.1-427. 35. Stephen P. Robin, Zoning and Subdivision law in Virginia: A Handbook (Charlottesville: Institute of Government, University of Virginia), pp. 14-17. 36. Code 15.1-454. 37. Code 15.1-457. 11 Among the variety of persuasive and coercive means of implementing the plan that are available to local governments, the most frequently used are the official map, subdivision ordinance, site plan review, and zoning ordinance. Persuasive means of implementing the plan include those arising from local government proprietorship of public facilities and lands and those arising from the fiscal powers of local government. The taxing policies of local governments can have a powerful effect on land use, especially when they are tailored to do so, as in the case of special taxing districts. The spending policies also affect land use and may be tailored to the comprehensive plan through the use of a capital improvements plan. Official Map The Code of Virginia enables localities to adopt an official map showing the location of existing and future public streets, waterways, and public areas. In preparing an official map, the local planning commission must consult with the Commonwealth Transportation Board as to streets under the Board's jurisdiction and must submit the map to the Board for review.38 After receiving the recommendations of the transportation board, the planning commission may submit the map to the local governing body for adoption. Any divergence from the recommendations of the transportation board must be brought to the attention of the governing body.39 Before adopting the map as an official map of the locality, the governing body must hold a public hearing.40 An adopted official map is filed with the clerk of the local court.41 It can be modified only in accordance with the regular subdivision recording procedure or upon the approval of the governing body after a public hearing concerning the proposed changes.42 This procedure is designed to require some level of cooperation between local and state planners and to ensure public input into the process. It could be used as the basis of a "cross-acceptance" policy by VDOT and local planners. The map is a valuable tool for coordinating planning, but it does not have the legal effect of taking or accepting the properties marked out for public purposes.43 Subdivision Ordinance Virginia requires the governing body of each county, town, and city to adopt ____________________________ 38. Code 15.1-462. 39. Id. 40. Code 15.1-459, 15.1-431. 41. Code 15.1-460. 42. Mead, Martha Johnson, Virginia County Supervisors Manual, 5th ed. Charlottesville: Center for Public Service, University of Virginia, 1988. 43. Code 15.1-458. 12 an ordinance to ensure the orderly subdivision and development of its land.44 Any division of a parcel of land into three or more lots, into lots of less than five acres each, or involving a new road is subject to any regulations and development standards that are in force in that jurisdiction. The purpose of subdivision control is to prevent congestion of population and to provide land development in accord with planning goals. The regulations usually establish standards to be met in the construction of public infrastructure and often require the developer to provide basic improvements before the sale of any lots.45 Subdivision ordinances in Virginia must include "reasonable regulation' of lot sizes, drainage and flood control, water, storm and sanitary sewers, public utilities, streets, and other community facilities. Much of the content of subdivision ordinances bears on access and transportation concerns. Such ordinances typically include regulations and development standards for minimum lot size; the coordination of streets as to location, interconnections, widths, grades, and drainage; the dedication of land for streets; street surfacing; etc. A property owner who desires to subdivide land must submit a plat of the proposed subdivision to the local planning commission. If the plat is approved by local planning authorities, it is recorded by the circuit court clerk. Recordation of a plat has the effect of transferring any platted land that is set aside for streets, alleys, easements, or other public uses to the county or municipal government. Thus, one of the functions of county subdivision regulations is to ensure that streets built by private developers to allow access to and within newly subdivided property meet VDOT's standards for acceptance into the secondary road network.46 Local governments have a strong interest in guaranteeing that minimum standards are met in order to avoid expensive repairs, improvements, or liability for roads that are not accepted into the state network. Zoning Controls The most powerful single tool that localities employ in implementing the comprehensive plan is the zoning ordinance. Though Virginia does not require zoning controls, each of the jurisdictions in Northern Virginia has adopted a zoning ordinance. The Code of Virginia mandates that a zoning ordinance, if enacted, must give reasonable consideration to each of the following, where applicable: the provision of adequate light, air, access to property, and safety from fire, flood, and other dangers the control of congestion in travel and transportation the facilitation of the creation of a convenient, attractive, and harmonious community ____________________________ 44. Code 15.1-465. 45. John W. Dickey, Metropolitan transportation Planning (Washington: Hemisphere Publishing, 1983)p.470. 46. Board of supvrs. v. Ecology One., Inc., 219 Va. 29, 245S.E.2d 425 (1978). 13 the facilitation of the provision of public services (including transportation) the protection of historic areas the protection against overcrowding of land; undue density of population in relation to the community facilities existing and available and other dangers the encouragement of desirable economic development the protection of agricultural and forest lands.47 To effect these purposes, the county or municipal government may divide the locality into zones and stipulate the uses to which real property in those zones may be put. It may control the size, height, area, bulk, location, construction, alteration, maintenance, and removal of structures and the areas and dimensions of land, water, and air that may be occupied.48 Recent amendments to the Code have per- mitted Northern Virginia localities to use civil as well as criminal penalties to enforce their zoning ordinances.49 This was a major improvement since civil remedies are usually more effective than criminal ones in enforcing a localityþs land use regulations.50 Special zoning powers that allow greater flexibility in dealing with development proposals have been granted to Northern Virginia localities by the General Assembly. Currently, each of the Northern Virginia jurisdictions is authorized to employ conditional zoning.51 Since July 1990, high-growth jurisdictions, including those in Northern Virginia, have had the option of imposing impact fees instead of receiving proffers as they have under the old conditional zoning regulations.52 Site Plan Review Unlike comprehensive planning and subdivision regulation, site plan review by county and municipal governments is optional in Virginia. In jurisdictions that require review, a developer applying for a building permit may be required by local ordinance to submit a site plan showing the proposed development or redevelopment and the existing and proposed roadways that will provide access to the site. The local planning commission may use this review to ensure compliance with regulations contained in the zoning ordinance.53 The procedure for local review is the ____________________________ 47. Code 15.1-489. 48. Code 15.1-488. 49. Code 15.1-499.l. 50. Robin, Zoning and Subdivision Law in Virginia, pp. 33-35. 51. Code 15.1-430(q). 52. Code 15.1-498.1 through 15.1-498.10, effective July 1, 1990. 53. Code 15.1-491(h). 14 same as that for proposed subdivisions of land.54 At the county's discretion, a site plan may be submitted to VDOT for review. In Northern Virginia, the site plans are submitted directly to the Planning and Permits Division of the VDOT District Office. The recent adoption by VDOT of a procedural guide for site plan review has regularized VDOT's role in the process.55 VDOT's Northern Virginia District office provides advice on the impact of a proposed development on the state highway system. Capital Improvement Plan A capital improvement plan (CIP), which consists of a schedule of capital improvements (including methods of financing) proposed to be constructed by the locality within a period not to exceed five years, may be prepared by any local government.56 The CIP can be a valuable fiscal planning tool, affecting the pace and placement of growth. However, overt attempts by localities to use the CIP to restrain growth have been overturned by Virginia courts. In Fairfax County Board of Supervisors v. Roy G. Allman,57 the Virginia Supreme Court held that public facilities must follow development, and the absence of such facilities cannot be used to deny rezoning applications, which would result in increased development. Even though a CIP cannot be used to restrict growth arbitrarily, it may be used under certain conditions to guide the timing or spacing of growth in a rational manner.58 Regional Coordination of Land Use Planning Though the basic police power resides at the state level, land use regulation has traditionally been delegated to localities. In Virginia, as in most other states, land use planning is a jealously guarded local prerogative, and this contributes to a general lack of coordination among localities on land use planning issues. In spite of this, regional organizations play a limited role in coordinating land use controls across political boundaries in Northern Virginia, the District of Columbia, and Maryland. Council of Governments The Metropolitan Washington Council of Governments (COG) has been the 54. Code 15.1-475. 55. This procedural guide was proposed by B.H. Cottrell, Jr., as part of a very useful study of county-VDOT cooperation in site plan review. "Evaluation of Site Plan Review Procedures-Final Report," Virginia Transportation Research Council, 1988. 56. Code 15.1-464. 57. 211 S.E.2d 48 (1975). 58. Robin, supra note 32, at 13. 15 major regional player in both transportation and land use planning. It maintains a "zone land activity" database, which allows COG and local planners to test land use alternatives. It conducts specific land use studies such as those on the land use impacts of mass transit and zoning around airports. In its role as the Metropolitan Planning Organization (MPO) for transportation planning in Northern Virginia, COG's Transportation Planning Board (COG/TPB) coordinates, reviews, and approves work programs for all proposed federally assisted technical studies, including those related to the transportation impacts of land use, and coordinates federal funding for such state activities as VDOT review of site plans for local government land use planners. In addition, COG has recently established a Joint Task Force on Growth and Transportation, which provides a forum for coordination issues. Planning District Commission Though it has traditionally not been involved in land use planning issues, the Northern Virginia Planning District Commission (NVPDC) recently sponsored a conference entitled "Transportation and Land Use: Striking the Balance in Northern Virginia" and a "summit" for local elected officials on growth management and land use. NVPDC also purchased a computer-aided mapping system and is seeking funding for an effort to develop a regional map of existing land use plans. Informal Coordination Perhaps even more important than the formal coordination of land use planning decisions is the informal exchange of views and information among local planning staffs and officials. Efforts by NVPDC, COG, and VDOT to bring local government officials to agreement on contentious issues have been successful in most instances. There is still, however, a simmering dispute over land use controls between the more developed counties and those less developed. Less developed coun- ties claim that the land use policies of the more developed counties discriminate against residential development. Since most residential development requires a greater expenditure in public services than it creates in tax revenues, it is economically beneficial for localities to attract commercial development while additional residential development.59 Despite some regional discussion of land use and growth control issues, there is entry no effective regional forum for the resolution of tensions that increasingly arise from the highly decentralized process of land use planning. Even if the process of informal coordination were working flawlessly, it would not address the absence of responsibility focused at the regional level: there are simply too many regional actors, and not one of them is responsible for the coordination. 59. For a very useful discussion of this phenomenon, with reference to the problem in Northern Virginia, see Andy Taylor, "Beggar Thy Neighbor," Virginia Business, April 1989, pp. 29-4 1. 16 State Involvement Virginia's traditional deference to local jurisdictions in land use control is no longer absolute. With the passage of the Chesapeake Bay Preservation Act in 1988, the General Assembly effectively opened the door for state involvement in land use planning decisions. The Chesapeake Bay Local Assistance Board has promulgated regulations that specifically require local governments to modify their comprehensive plans, subdivision ordinances, zoning ordinances, and other land use regulations to meet certain guidelines set by the state.60 In other states, state controls on local land use decisions for the purpose of protecting the environment have preceded a more general state involvement in land use planning.61 In Florida, for instance, the state has become involved in land use planning for growth management, even passing the equivalent of a statewide "adequate public facilities ordinance." Though New Jersey's role in land use planning and development control has grown more gradually than Florida's, New Jersey now wields significant control over its localitiesþ land use decisions.62 In Hawaii, comprehensive planning is performed by a state agency.63 Whether Virginia's foray into statewide land use planning with the Chesapeake Bay Act presages a broader state role in land use control remains to be seen. Any coordination of land use and transportation planning that draws state (including VDOT) planners into land use decisions will have just such an effect. To the extent that the state does involve itself in land use planning, it should be aware of the experience of other states, which seems to show that state regulation of land use works well only when accompanied by substantial state funding for the additional planning and coordination activities and for the public improvements necessary to meet state goals. Resort to the Courts Challenges to land use regulation have been common in the nation's courts since the earliest days of municipal planning efforts. The nature of governmental power in this area was defined by the United States Supreme Court in 1926 in a case involving the Village of Euclid, Ohio, in which the Court held that the purpose _____________________ 60. See James D. Campbell, "Local Government's Role in the Chesapeake Bay Preservation Act," 24 Virginia Town & City 11, for an argument that "the state is asserting itself directly into land use decisions and control which were heretofore delegated to the local governments." 61. See F. Bosselman and D. Callies, The Quiet Revolution in Land Use Controls (1972); Mandelker, Environmental and Land Controls Legislation (1976); Healy & Rosenberg, Land Use and the States (1979); and I. Hand & B. McDowell, eds., The Practice of State and Regional Planning (1986). 62. Jerome G. Rose, "Creeping Incrementalism and Cumulative Synergism: New Jersey's Approach to Statewide and Regional Planning and Control of Development," 34 J. Urban & Contemp. Law 133. 63. Hawaii Rev. Stat. ch. 205 (176 Pepl. Vol.) 17 of zoning is to prevent incompatible uses from coexisting.64 This "Euclidean" conception of zoning power focuses on the present use of land and not the control or phasing of future growth. Virginia's Supreme Court adopted this conception of zoning in its 1959 Carper decision: The purpose of zoning is in general two-fold: to preserve the existing character of an area by excluding prejudicial uses, and to provide for the development of the several areas in a manner consistent with the uses for which they are suited. The regulations should be related to the character of the district which they affect; and should be designed to serve the welfare of those who own and occupy land in those districts.65 On the basis of this conception of the proper purposes of the zoning power, the Carper court struck down an attempt by Fairfax County to focus new development in the eastern third of the County by zoning the western two-thirds of the County for large-lot development. Fairfax County, which has been the major testing ground for growth control efforts over the years, was the scene of several court battles in the early 1970s. Many of Fairfax County's attempts to limit and channel growth have fallen to judicial challenge on the basis of a strict application of Dillon's Rule. When the Board of Supervisors amended the zoning ordinance to prevent a change in the use of some properties for which special use permits had already been issued, the Virginia Supreme Court struck down the action on the theory that the right to develop the land had become "vested.þ66 When Fairfax County later tried to stop a development by down-zoning a property that had recently been zoned for a high-density use, the Court struck it down establishing the rule that a Virginia locality must show that there has been some mistake or change in circumstances in order to adopt a "piecemeal" down-zoning on its own motion.67 In the mid-1970s in yet another attempt to slow growth, Fairfax County denied a number of requests for development. The Board of Supervisor's rationale was that it was entitled under the Code of Virginia to determine when public facilities will become available and that it had an obligation to "protect against undue density of population in relation to the community facilities existing or available.þ68 The Virginia Supreme Court rejected this argument, however, announcing that public facilities should follow rather than precede development.69 In desperation, Fairfax County began a major replanning program in 1973. 64. Village of Euclid, et al. v. Ambler Realty Co., 272 US 365, 71 L. Ed. 303, 47 S. Ct. 114 (1926). 65. Board of County Supervisors v. Carper, 200 Va. 653, 107 S.E.2d 390 (1959). 66. Board of Supervisors v. Cities Serv.0il Co., 213 Va. 359,1 93S. E. 2d l (1972) and Board of Supervisors v. Medical Structures, Inc., 213 Va. 355, 192 S.E.2d 799 (1972). 67. Board of Supervisors v. Snell Corp., 214 Va. 655, 202 S.E.2d 889 (1974). 68. Code 15.1-427. 69. Board of Supervisors v. Thomas R. Williams, 216 Va. 49, 216 S.E.2d 33 (1975). See also, Board of Supervisors v. Roy G. Allman, 215 Va. 434, 2 11 S.E.2d 48 (1975). 18 While the new plans where being developed, an interim zoning ordinance was enacted that suspended the submission or approval of new site plans or subdivision plats for eighteen month in order to avoid a rush to beat the new ordinance. This too, was struck down by the courts on the basis that the ordinance exceeded the County's authority under a strict application of Dillon's Rule.70 A 1981 study of this line of cases concluded that the Virginia Supreme Court had employed a single criterion of validity in judging zoning disputes: The Virginia Supreme Court has decided these zoning cases as if only one of the eight purposes of zoning set out in the enabling act is valid encourage economic activities."71 However, this same report noted that three zoning cases handed down in 1980 and 1981 might signal a doctrinal shift. The judicial approval in these cases of local decisions not to allow zoning changes for more intensive uses "appeared to interrupt the steady doctrinal evolution that had occurred from 1955 to 1978.72 Though Virginia courts are now handing down more decisions favorable to local land-use planning and growth control efforts, the weight of judicial precedent still leans in favor of private property interests. Circuit courts in Virginia seem to be divided in their application of Dillon's rule in zoning cases: in 1985, the Fairfax County Circuit Court upheld the down-zoning of 60 acres in the Occoquan watershed;73 but in 1989, the Virginia Beach Circuit Court struck down a similar attempt at down-zoning.74 In the 1980s, a new dimension has been added to the court battles over the application of the zoning statute in Virginia. When localities began claiming the right to require developers to build roads or other public improvements in exchange for approval of rezoning requests, many of these ended up in the courts as well with mixed results. The planning officials based their authority on state laws permitting "conditional zoning." This fle2dble zoning authority allows local officials to approve rezoning requests on an ad hoc basis, subject to a "proffer" by the developer to take certain actions for the protection of the Commllnity.75 Virginia Supreme Court decisions upholding local officials in the exercise of this power stress the "voluntaryþ 70. Board of Supervisors v. M.S. Horne, 216 Va. 113, 215S. E.2d 453 (1975). 71. Lilhan R. BeVierand Denis J. Brion, Judicial Review of Local Land Use Decision Virginia (Charlottesville: University of Virginia Institute of Government, 1981), p. 105. Other purposes of the zoning statute are listed on p. 13. 72. Id., p. 100. The three zoning cases are Board of Supervisors v. Lerner, 221 Va. 90, 267 S.E.2d 100 (1980), Board of Supervisors v. Jackson, 269 S.E.2d 381 (1980), Board of Supervisors v. International Funeral Servs., Inc., 275 S.E.2d 586 (1981). 73. Aldre Properties, Inc. v. Board of Supervisors, Fairfax County Circuit Court, in Chancery Nos. 78463-A, 78476, 78450, 78425. 74. See "Beggar Thy Neighbor," supra n. 22 at p. 37. 75. Code 15.1-49 1. 1. 19 nature of the proffered improvement.76 Decisions by the same Court striking down local attempts to exact such improvements invariably rely on Dillon's Rule.77 In a recent study, "Local Plans and Land-Use Controls in Relation to Highways and Their Use," David Heeter suggested that the most serious threat to local planning efforts is not from the courts, but from the legislature's reluctance to clarify the authority of local governments to use novel zoning techniques to protect highways from the impact of development.78 This probably accurately reflects the situation in Virginia. As the courts begin to demonstrate an increased openness to local planning needs, the need for a clear legislative pronouncement on the scope of local powers in this area becomes all the more urgent. Assessing the Effectiveness of Land Use Planning: Tysonþs Corner There have been very few systematic attempts to assess the impact on transportation of land use controls. In fact, the impact on transportation of land use decisions often does not become an issue until mobility problems are so great that land use controls can do little to remedy the situation. It is clear that the fiscal con- straints with which local decision makers in urban areas (or areas that are quickly becoming urban) are faced often overwhelm other interests (including transportation concerns) that might play a role in land use decisions. Just 30 years ago, Tysonþs Corner was a sleepy intersection in Fairfax County with a single gas station and a small grocery store. "Today it boasts 14 minion square feet of office space to which almost 80,000 people commute every day. Available office space is expected to double within a decade. This phenomenal growth was caused in part by a good transportation network. Located at the intersection of what were two free-flowing arterials (Routes 7 and 123), the region was considered extraordinarily accessible" when it was developed.79 Since that time, other major thoroughfares have been added, including Interstate 66, Interstate 495 (the "beltway"), and the Dulles access road. Ironically, Tyson's Corner now has a national reputation as a transportation nightmare. Despite the best efforts of Fairfax County planners, the explosive growth quickly outstripped the transportation facilities, which are only now being improved. Land use controls were ineffective to prevent the sort of unplanned development pattern that one critic has described as "a box and a parking lot."80 Many attempts to slow growth fell as a result of judicial challenges. Growth was 76. Board of Supervisors of Prince William County v. Sie-Gray Developers, Inc. et al. 334 S.E.2d 542 (1985). 77. Blair W. Cupp v. Board of Supervisors of Fairfax County 318 S.E.2d 407 (1984). 78. David G. Heeter, "Local Plans and Land-Use Controls in Relations to Highways and Their Use," 2 Selected Studies in Highway Law 936-Nl39 (Transportation Research Board, 1988). 79. "Is it the Tyson's of Tomorrow?" The Fairfax Journal (February 23, 1989). 80. Id. 20 not guided by any comprehensive plan, and new development preceded the roads that would be needed to serve it. Amenities such as restaurants, dry cleaners, daycare centers, and banks, which can mitigate traffic problems if developed within walking distance of major office projects, were only haphazardly integrated with the major developments at Tysonþs Corner. A giant two-phase shopping mall at Tysonþs Corner remained largely inaccessible except by private automobile until business owners in the area formed a transportation management association (TMA) to provide shuttle service to office workers in the area. Despite private and public efforts to mitigate the transportation problems, the levels of service on area roads are de- creasing, and much remains to be done.81 Since congestion has made the Tysonþs area a less attractive business location, growth has begun to shift west to Reston and even to the Dulles corridor. However, a proposed update to Fairfax County's comprehensive plan calls for an even greater concentration of development in the Tysonþs Corner area, thereby focusing the highest density growth in that area and making it the largest "downtown" in Virginia. This "urban village" concept has been promoted by urban development theoreticians as an effective way to control urban sprawl. It remains to be seen whether the burgeoning suburban city at Tyson's Corner will prove to be manageable in transportation terms. As its density reaches the threshold for efficient mass transit, new opportunities will arise for both internal and external linkages. Even in an area where, by most accounts, there has been an utter failure to link transportation and land use policies in planning for the future, new opportunities for effective coordination exist. TOOLS FOR COORDINATION The preceding brief review of the processes by which transportation planning and land use control are accomplished in Virginia should begin to make the problems of coordination apparent. Both processes are highly complex; they involve numerous actors at all levels of government and in the private sector who have disparate and sometimes competing objectives. Of course, it makes sense to begin consideration of how the land use and transportation planning processes may best be coordinated by examining how they are coordinated at present. That task turns out to be more difficult than might first appear because there is no consensus as to how existing mechanisms operate. The traditional school of thought emphasizes the primacy of future land use projections as the basis for coordination. It would seek to fit current practice in Northern Virginia into a straightforward theoretical model that 81. Chistopher Conte,þThe Explosive Growth of Suburbia Leads to Bumper-to-Bumper Blues,þ Wall Street Journal (April 16, 1985); see also, Marcia McAllister, "Urban Hub at Tysons is Backed," Fairfax Journal (December 11, 1989). 21 describes coordination of the two planning systems as a natural byproduct of their operation. This might be called the classic planning model (see Figure 1). The Classic Planning Model Under that model, the long-range transportation systems plan uses established future land use characteristics as its driving force.82 Next, land uses anticipated or planned for a future year (usually by the local jurisdiction) are evaluated in terms of their future trip- making characteristics by applying indicators found through personal trip-making surveys. The third step determines what transportation system improvements have already been identified for that same year. These system improvements are typically drawn from earlier transportation system plans. Additionally, improvements, which might be needed based upon the future tripmaking characteristics identified above, are determined. Following the completion of these activities, the future demand for transportation facilities (as indicated by the future land uses) is distributed geographically throughout the area being studied. This step involves breaking down each trip into distinct origins and destinations and then matching the ends of each trip to geographically unique areas. This is usually accomplished through the use of a "grav- ity model" wherein trips are matched on the basis of size and proximity. Once this geographic distribution of trips has been accomplished, a determination of the potential future mode of travel is made. This step basically separates travel by automobile from travel by transit. At this point, the future travel by automobile is actually placed on the future highway system; and classically, the same activity is performed for transit trips. The various transportation subsystems are then examined; and, those portions not performing satisfactorily are examined further, thereby leading to possible changes in future land use (demand) or future facilities (supply). Supply and demand are eventually balanced, and the product becomes the long-range transportation systems plan. In many places, however, technological or financial constraints exist such that the plan concerns only one or two modes, or subsystems. According to the classic model, this balanced long-range transportation systems plan feeds directly into an implementation process that translates the plan into reality (see Figure 2). Several activities are tied together with the product of one step becoming the beginning of another. However, this classic model is not universally accepted, nor does it adequately represent the complex reality of the process in Northern Virginia. 82. The following description of the classical model of planning process in Virginia was developed by the project advisory committee. 22 Click HERE for graphic. Figure 1. Traditional transportation systems demand modeling process. 23 Click HERE for graphic. Figure 2. Traditional transportation systems implementation process 24 Descriptively it does not do justice to the complexity of attempts, such as that in Fairfax County, to simultaneously feed land use and transportation alternatives into its Comprehensive Plan update. Normatively, it may not even be a desirable model. The claim that it accomplishes coordination by bringing supply and demand into "balance" is a dubious one in light of Northern Virginia's experience. Financial, environmental, and other constraints limit the amount of transportation "supply" that can be accomplished. Political and legal constraints limit the ability of local officials to make drastic changes in land use that would significantly reduce demand. This mismatch of supply and demand cannot readily be explained or remedied in terms of the classic model. One alternative model is the flip-side of the classic model. It emphasizes the primacy of transportation planning in the process of coordination. The future transportation system leads the overall planning process, and land use options are evaluated in light of a proposed future transportation system.83 Yet another alternative is that alluded to above in reference to Fairfax County-that of a simultaneous input of land use and transportation alternatives. Whether such a "third way" is a viable option or whether, instead, one or the other discipline inevitably leads the process is the subject of some dispute. What is clear is that the supply and demand factors are truly dynamic. They are not susceptible of easy quantification. Each of the models described here has advantages and disadvantages that tend to appear based on factors tangential to the technical planning process itself (e.g., the local political environment, land-use regulations, availability of capital construction funds, etc.) In light of this ongoing debate over which model best describes or is capable of improving the process of coordinating land use and transportation, the authors offer an alternative conception of coordination. Rather than trying to understand and to implement coordination through the formal processes represented by the models described above, a flexible approach should be employed. Since none - of the formal models fully represent the broad range of efforts at coordination that now exist or could be implemented, the models themselves may serve to inhibit our conception of the scope of activity that should be considered under the rubric of coordination. The discussion that follows argues that coordination can best be advanced by the flexible employment of a number of tools. Some of these tools are described below. Some are presently in use in the Commonwealth, others are not. What is important about the tools described below is that each can contribute to the overall process of coordination by serving to link one or a few transportation decisions to land use decisions. The tools do not represent a formal system or a model for coordination. Instead, they are offered as an alternative to the formal approach. The flexible approach, which relies on developing as many individual linkages between land use and transportation as possible, is not as easy to reduce to a diagram as the formal models are. It suggests that the relationship between different 83. This approach has recently been applied in Orlando, Hartford, and Raleigh-Durham. 25 elements in the process is more complex, interactive, and messier than the formal models suggest. This alternative approach is not totally fragmentary however. It conceives of links formed not on the basis of formal authority but on the basis of informal exchanges in money and information. It relies on these exchanges of money and information to accomplish coordination among formally independent decision-makers. In some instances, the long-range recommendations are further refined through a short-range plan, which concentrates typically on a 5- to 10-year time frame. Included within this category of documents are implementation plans, traffic impact analyses, phasing plans, etc. In other cases, the recommendations from the long-range plan are directly matched to specific sources of funding. Transportation improvement funds can be public in nature, coming from governmental agencies such as VDOT or the Federal government, or they can come from private individuals through mechanisms such as proffers. This phase of the process can take as long as all other steps combined, particularly in times of economic recession. However, once funding is found for the specific transportation improvement, the process continues into the design and construction phase, where all project-related details are worked out. It is during this phase that actual engineering plans are developed, additional right-of-way needs are secured, and actual construction is complete (if appropriate). The final step in the process involves acceptance of the improvement by the appropriate governmental jurisdiction. This acceptance certifies that the improvement meets all appropriate standards and is safe for use by the public. Alternative Conceptions In an article reviewing Virginia's transportation choices for the 1990s, Jeremy Plant distinguishes three possible approaches to the management of transportation systems: hierarchical, jurisdictional, and coordinative (see Figure 3).84 A hierarchical approach is the simplest form of management. Decisions are easily coordinated because they are concentrated in a central authority. A jurisdictional approach is also simple in a way. It vests decision-making authority in local authorities who can coordinate local decisions, but have difficulty influencing or planning for decisions in adjacent jurisdictions. The coordinative approach is more complex. The decision-making authority is more dispersed: local officials and central authorities share decision- making responsibility. However, some medium of exchange must be employed to allocate authority and responsibility. Either money or information can serve as the medium by which such an allocation is accomplished. Plant argues that Virginia's current system is hierarchical: policy-making is clearly separated from the implementation of policy, and various 84. Jeremy F. Plant, Transportation Choices for Virginia" in Virginia Alternatives for the 1990s (Fairfax: George Mason Univ. Press, 1988). 26 Click HERE for graphic. functional areas are compartmentalized. Even though it could be argued that policy formation and implementation are linked in the transportation planning process, there is still a horizontal separation of the various planning functions in Virginia (e.g., urban highway planning is segregated from transit and rail planning). Like any hierarchy, Virginia's current Department of Transportation places a high premium on routinization of functions and management control. - Governor Baliles' Commission on Transportation in the 21st Century supported a sort of fiscal coordination of transportation decision- making: In order to maximize and coordinate the investment, management, and distribution of new revenues for transportation needs, it may be preferable to concentrate them in a single entity that would have the authority to finance the construction of all modes of transportation.86 This fiscal mechanism is a highly centralized and hierarchical one, however, unlike the coordinative fiscal mechanisms discussed below. Estimates of the effectiveness of such recent efforts at coordination vary widely. Although some commentators focus on the organizational and fiscal changes that now link the various modes of transportation planning, others believe the changes are cosmetic and that highway planning still eclipses multi-model planning in Virginia. Whatever the estimates of the progress of 85. Financial Options Subcommittee of the Governor's Commission, report dated July 28, 1986, p. 20 27 and prospects for linking the various modes of transportation planning through fiscal and organizational coordination, it is clear that linking the transportation planning process with the land use control process in Virginia will be even more difficult. Land use control is now managed jurisdictionally for the most part. Each locality makes land-use decisions on the basis of local criteria. This has the advantage of facilitating coordination with other local decisions. However, since most transportation decisions are not made at the local level, coordination of land use and transportation is difficult. The preceding discussion makes it clear that an effective linkage cannot be accomplished within either the jurisdictional or hierarchical models. Since land-use control is largely accomplished on a jurisdictional basis (with increasing elements of the coordinative approach), the process of linkage must be capable of encompassing both local and central decision makers. This can best be accomplished by employing a coordinative management strategy. A coordinative approach to linking land-use control and transportation requires some medium for linking actors. The medium for linking actors in a hierarchical model is authority- authority emanates from a central decision maker to whom the other actors respond. The coordinative approach, which rejects this authority based structure, can replace it with other mediums such as money, or information. Decisions can be coordinated through the pooling and dispersing of dollars or of information. In Order to develop this idea further, some fiscal and some organizational (based on information flow) tools for coordination are discussed below. Fiscal Tools Many changes in fiscal policy have the potential to drastically affect the balance between growth management and mobility in a community. A differential rate of property taxation for commercial and residential property might radically alter the patterns of development in Virginia. Likewise, a development excise tax could change the relationship between land use and transportation.86 Among the myriad possibilities for affecting the coordination of land-use and transportation planning through fiscal tools, few stand out. Proffers One of the most direct ways in which money is used as a medium for coordinating decisions between local land use planners, private developers, and state transportation planners is through the conditional zoning process. 86. See, Strauss & Leitner, þFinancing Public Facilities With Development Excise Taxes: An Alternative to Exactions and Impact Fees,þ 11 Zoning and Planning Law Report 1 (1988). 28 Conditional Zoning is an adaptation of traditional zoning that allows local governments to make approval of rezoning contingent on the receipt of "proffers" from the party seeking the rezoning. The proffers can take the form of off-site improvements, such as roads, schools, or sewers, or they can be cash payments. Though this type of zoning is practiced on the basis of traditional zoning powers in some states, Virginia's strict adherence to Dillon's Rule precludes localities from employing it in the absence of specific legislative authority. In 1973, the General Assembly added 15.1-491 to the Code of Virginia; it gave broad conditional zoning power to Fairfax County. Later acts of the legislature extended the powers to Arlington, Loudoun, Prince William counties, cities and towns within these counties, and to counties east of Chesapeake Bay. Four years later, when other localities began to seek similar powers, the General Assembly added Sections 15.1-491.1 through 15.1-491.6 to the Code, allowing limited use of conditional zoning statewide. The statewide conditional zoning differed from the broader power granted to Northern Virginia and the Eastern Shore in some important respects. It barred cash contributions and proffers for off-site road improvements. During its 1989 session, the General Assembly created an intermediate tier of conditional zoning powers. It applied to those cities and counties that do not have the "old style" conditional zoning authority but that have experienced a population growth of 10 percent or more since the 1980 census. It also applied to certain adjacent jurisdictions. This legislation allowed for cash contributions and off-site road improvements, while requiring strict conformity with the local comprehensive plan and capital improvement plan. This "proffer" system has not only served to coordinate land use and transportation decisions by linking development to transportation construction but has also provided a significant fiscal benefit to local governments in Virginia. In Fairfax County alone, proffers brought in over $100 million in just 5 years, which compares favorably with the $130 million raised through a bond referendum that will take 40 years to pay off.87 It must be noted, however, that the money from proffers went largely to on-site improvements and is therefore not a substitute for general transportation funding methods. A 1988 Joint Subcommittee of the General Assembly studying off- site road improvements found that the proffer system has at least three significant advantages as a tool for funding and coordination: flexibility in resolving site-specific problems that may not be addressed easily under general "formula" approaches to developer contributions significant savings in time, as in direct land dedications or developer construction of facilities rather than public acquisition or construction significant reductions in litigation over land use and development. 87. C. Kenneth Orski, "Traffic and Transit Futures" in Wayne Attoe, ed., Transit, Land Use, and Urban Form (Austin, Texas: Center for the Study of American Architecture, 1988) at p. 42. 29 Since "proffers' can only be sought for facilities that are required by the rezoning, the process requires some quantification of and public/private dialogue concerning the transportation impact of new development. In this way, not only can land use and transportation decisions be coordinated in an individual project, but an overall balance between development and mobility can be informally pursued. Although developers have sometimes seen the system as an organized system of extortion, they have chosen to work with the localities rather than to seek changes at the state level. Impact Fees Another fiscal tool for the coordination of transportation and land use decisions was recently added to the arsenal of local governments in Northern Virginia- the impact fee. After a very contentious debate, the General Assembly passed legislation on the last day of the 1989 session authorizing Northern Virginia cities, counties, and towns to impose a fee on new developments calculated to cover the cost of off-site road improvements necessitated by the development. The bill became effective on July 1, 1990. Localities in Northern Virginia can now choose to impose impact fees instead of receiving proffers on new development projects. Impact fees are assessed on the basis of the projected impact of a new development on the existing transportation system. A locality wishing to impose such fees must first hold public hearings, develop a capital improvements plan that contains all projects to be funded, and divide the jurisdiction into districts for the purpose of administering the fee system. Then, sophisticated computer models must be developed to forecast the traffic impact of new developments within each district. Only the actual impact of a new development is chargeable to it, and the funds collected must be used for the direct benefit of the property on which the fee is assessed.88 Like conditional zoning, this method of funding off-site road improvements has the advantage of creating a specific link between land-use decisions and transportation decisions as well as between public and private decision-makers. In fact, since the actual transportation impact must be gauged with some precision, it arguably establishes a closer link. Many studies have pointed to benefits of impact fees over proffers, including greater rationality and certainty.89 One significant advantage is that impact fees can be imposed even where no zoning change is required and, therefore, a proffer is 88. This so called "rational nexus" test has evolved in the courts as a check on governmental discretion in the administration of impact fees. The limits of state authority are articulated by the US Supreme Court in its decision in Nollan v. California Coastal Commission, 107 S. Ct. 3141(1989). 89. See, e.g., Robert Cervaro, "Paying for Off-Site Road Improvements Through Fees, Assessments, and Negotiations: Lessons of California" (Jan/Feb 88) Public Administration Review 534, and Ernst & Grasewicz, "Paying the Piper. Using Development Impact Fees for Infrastructure Finance" in Bohland, ed. Planning in Virginia (Blacksburg, Virginia: Virginia Polytechnic Institute) at p. 6. 30 not likely. However, impact fees also have severe hmitations.90 They can be assessed only for impacts within the districts and not for the significant cumulative impacts that a development may cause outside its immediate vicinity. "To avoid costly litigation, most localities that impose impact fees have had to discount their assessment of the actual impact of a new development (in some places, such as Montgomery County, Maryland, the assessments are discounted by as much as 50 percent).91 In fact, some planners believe that impact fees would not generate as much revenue as Virginia's current proffer system has.92 Beyond the uncertainty over the effect on revenues, looms the problem of the planning requirements inherent in the Virginia law. In order to implement an impact fee system, a locality would need to collect and analyze a volume of data which exceeds that required by any planning model currently in use. The requirements of the Virginia law, while undoubtedly rational, may in fact be utopian. In light of this, it seems unlikely that impact fee ordinances will be widely adopted in Northern Virginia. Transfer of Development Rights Yet another fiscal tool that would allow an informal linkage of land use and transportation decisions is the transfer of development rights (TDR). 93 Used in conjunction with zoning powers, this tool can be very effective in Linking development to the availability of adequate transportation facilities without inviting lawsuits. The concept of transferable development rights rests on the idea that property ownership is not a single monolithic right, but instead a bundle of rights, which can be separated from each other. Virginia law has long recognized such a principle with regard to such component rights as mineral rights and mortgage hens. In some other states (notably Illinois and Maryland), development rights (DRs) can be alienated from other ownership rights and bought and sold independently. The idea is that part of the value of land derives from its potential for development. Under this theory, each piece of land has an inherent number of DRs irrespective of how it is zoned. Land use controls may diminish the value of the land by restricting the owner's right to develop it. If, however, development rights are transferable, then the owner can sell the development rights he cannot use for use on another piece of property, where more intense development is permitted. The advantage of this concept is that it allows government planners to take actions that have a significant impact on the value of property without creating "windfalls" for some property owners and "wipeouts" for others. When such actions (e.g., down-zoning) are taken, owners of property on which development is restricted may sell their excess DR's to owners of property open for more intense development. TDRs have been used quite successfully in Montgomery County, Maryland, 90. See "Impact Fees May be Ineffective in Promoting Efficient Land Use," Lincoln Institute of Land Policy Landlines, December 1989, p. 5 91. Zoning News(March l989),The American Planning Association, p.2. 92. "Fairfax Transit Planner Prefers Proffers Over Fees," The Fairfax Journal, January 29, 1990. 93. See, Costonix, Development Rights Transfer: An Exploratory Essay, 83 Yale L. J. 75 (1973); and Marriam, Making TRD Work, 56 N.C.L. Rev. 77 (1978). 31 where areas that are zoned for agricultural purposes are limited to one house per 25 acres, but farm owners can sell rights to develop five additional structures to landowners in areas where higher densities are permitted. In Montgomery County, courts have even upheld a down-zoning where landowners could recoup their losses by selling their DRs.94 TDR's allow competing land use and transportation goals to be efficiently adjusted through decentralized market transactions rather than relying on central regulatory mechanisms. Special Tax Districts A special tax district is usually organized to provide one or more services. Beginning with the toll road and canal corporations of the 1800s, such limited-purpose governmental districts have been used to perform functions that general purpose governments could not or would not provide.95 In 1987, the Virginia General Assembly passed three bills authorizing the creation of special tax districts to fund transportation projects. Two of the bills explicitly established the Route 28 and Route 234 Tax Districts in Northern Virginia. The third bill authorized Fairfax, Loudoun, and Prince William Counties to form additional districts. Unlike similar entities in other states, Virginia's special tax districts are tightly controlled by the county governments in whose territory they lie. Special tax districts in Virginia are normally governed by a commission composed of elected members of the surrounding countiesþ boards of supervisors. An advisory board composed of landowners from the district advises and reports to the commission. A special tax district can come into being by resolution of the boards of supervisors of the counties pursuant to a request by the owners of at least 51 percent of the assessed value of the real property zoned for commercial and residential purposes within the district. Special tax districts are empowered to impose special assessments above the regular property tax on all business and commercial property within the district. The local governments that create the district may advance or match the funds collected through the special tax for the improvement of highways within the district. However, the district may not actually construct or improve a road without the approval of the Commonwealth Transportation Board and the counties involved. Although the three districts that have been formed have by all accounts worked fairly well, no others have been created. A measure that has recently garnered support in the General Assembly will make participation in a special tax district the threshold for the "vesting" of the property rights of landowners. Once a property owner's rights are "vested," the government cannot diminish those rights by putting further restrictions on the use of the property. If this measure becomes law, it will make such districts much less attractive to the counties that must 94. A very helpful review of the use of special districts both in Virginia and in other states is contained in Porter, Lin, and Peiser, Special Districts: A Useful Technique for Financing Infrastructure (Washington :Urban Land Institute, 1987). 95. Dufourv. Montgomery County Council, noted in Land Use L.& Zoning Dig.19(Junel983). 32 form them and to those individuals who serve as commissioners since property within the tax district would effectively be exempt from growth-control measures such as "down-zoning" by the counties. Transportation Corridors A tool that is related to but relatively more potent than the special tax district is the transportation corridor. A legislatively defined geographic area focusing on a planned or existing transportation facility may be constituted into a transportation corridor.96 A well-mapped corridor would include not only all necessary rights of way, but also the entire area impacted by the transportation facility at its full capacity. The land surrounding the facility that has undergone or is likely to undergo development as a result of increased mobility should be included. The formation by the General Assembly of such a corridor could facilitate both the planning and funding of new transportation projects within the corridor. The coordination of planning efforts between different levels of government (vertical coordination) and between different functional areas (horizontal coordination) could be achieved by focusing planning efforts on discrete and integral geographic areas that naturally serve as a nexus for Virginia's commercial and high-density residential development: "Within this regional framework for multi-discipline planning, local, regional and state governments can capitalize upon the well documented link between the timing and location of transportation systems and land use.þ97 Beyond this planning benefit, however, these corridors create fiscal benefits in several ways. First, they can reduce the cost of acquiring rights of way. Courts have traditionally required public bodies that exercise the power of eminent domain . to show that a particular condemnation is necessary for the accomplishment of some public purpose. Land cannot be taken for a speculative purpose. One effect of this requirement has been that rights of way cannot be purchased until quite late in the process of planning a new transportation facility. Ironically, because the announcement of a new transportation facility causes the value of adjacent land to ap- preciate rapidly, the cost of acquiring land for the project is artificially increased by the project itself. This problem can be averted. If the General Assembly legislation creating a corridor carefully specifies the public purposes, these purposes can then justify the acquisition of all land needed for future rights of way in the corridor. Since the public purpose in view is no longer the actual construction of a highway but rather the sound planning of the corridor, there is no need for courts to examine the time between the of the condemnation of the land and the construction of the highway98 96. The corridor concept described here is not based on any particular model in existence but instead represents a combination of measures used in various parts of the country as described in Robert H. Freihch and Stephen P. Chinn, "Transportation Corridors: Shaping and Financing Urbanization Through Integration of Eminent Domain, Zoning, and Growth Management Techniques," 55 UMKC L. Rev. 153 (1987). See also, Beuscher, "The Highway Corridor as a Legal Concept" (Highway Research Board, National Research Council, Highway Research Record No. 166, 1967 at 9-13). 97. Freilich and Chinn, "Transportation Corridors" at p. 169. 98. Id. at 211. 33 Second, corridors can assist in the public recapture of the value of increased mobility through joint public/private development. By reserving highway interchanges, multi-modal connection points, transit stations, and even air rights in these areas for public/private development, planners can channel high density growth more effectively and at the same time realize a profit from rental income, which can be ploughed back into transportation projects. The Washington Metropolitan Area Transit Authority (WMATA) is expected to realize $9.32 million in rental income in 1990 from its joint development projects.99 In addition to the rental income, TA profits from the travel to these joint development projects. Because they are convenient to the transit system, up to 50 percent of an trips to these projects are made via WMATAþs subway. Finally, the corridor, which encompasses the land that will directly benefit from the transportation facility, can serve as an appropriate area for a uniform imposition of impact fees and special taxes even across local political boundaries. As such, it can serve as a geographic and functional framework within which to apply the other fiscal tools of coordination listed in this section. Since transportation facilities are "the most effective and significant growth and land use determinant," they can serve as the centerpiece for an effective regional growth management system: "They can provide a perspective which is broader than the one from which the problem of explosive population growth is traditionally viewed- the local governtnent."100 Organizational Tools The theoretical distinction between fiscal tools, which rely on financial mediums of coordination, and organizational tools, which rely on institutional interaction as a means of coordination, becomes somewhat blurred in practice. The corridor concept discussed above certainly has elements of institutional linkage as well as fiscal coordination. Likewise, the various organizational tools discussed below each utilize some form of fiscal coordination. Regional Funding Authority The idea of vesting significant authority for regional transportation planning, funding, and implementation in a single regional organization has obvious appeal. A single authority empowered to deal with regional transportation issues would be in a strong position to guide long-term land use decisions as well. However, depending on its composition and relationship to local governments, it might do so at the expense of accountability at the local level. The Tidewater Region of Virginia provides a convenient case study of how a regional funding authority might be developed. While the plans have not been implemented, the localities of that region have expended significant energy in exploring- 99. Id. at 183. 100. Id. 34 the feasibility of and developing support for a strong regional transportation authority. A consultant's report that recommends the formation of a regional transportation authority has been formally approved by several local governments and is pending in others.101 If local governments approve plans for the authority, which are being supported by the two planning district commissions in the area, they would have to receive General Assembly approval. As presently conceived, the authority would be empowered to plan, raise money for, and build major transportation projects within the region. It would raise funds through the imposition of a gasoline tax, a regional sales tax, development impact fees, and, if permitted by the federal government, the imposition of tolls on urban federal interstates. The plan is billed as a way to ensure that transportation needs can be met even in an era of reduced federal and state contributions to transportation; it would be a self-help organization. Beyond its role in raising much-needed revenues for transportation projects, the authority is seen as a major step toward more comprehensive regional planning. Some suggest that the proposal has "galvanized local officials toward a regional mentality. ,102 As the primary transportation planning agency for the region, such an authority would inevitably have to face the issue of where future needs will be, where growth would occur, and where it should be limited. Since funds raised from local citizens would be placed in a pool of funds that would be allocated by this regional organization, local governments would have a significant incentive to resolve land use and growth issues on the basis of regional interests. Both fiscal and institutional changes would be used to foster coordination. However, it should be noted that this vision of a regional transportation authority depends on the cooperation and even the encouragement of the Commonwealth. Without some "carrot" - such as new local taxing authority, a greater share of a state tax, or a relaxation of Dillon's Rule - full participation by the localities in the region will be hard to achieve.103 Whether or not the Tidewater area goes ahead with this proposal for a regional transportation authority, it must be recognized that Northern Virginia's problems are in some ways different from those in Tidewater. The transportation problem has been in the public consciousness longer, and there are more organizations actively concerned with transportation issues in Northern Virginia. Northern Virginia localities have already been experimenting on their own with some of the innovative funding options that Tidewater's authority is designed to facilitate. Despite these differences, the transportation authority concept has been proposed in Northern Virginia. Gubernatorial candidate Marshall Coleman 101. Isle of Wight County and Hampton have approved the plan, though other localities are moving more slowly. See, "Localities wary of action on regional transit financing," The Ledger-Star, November 15, 1989. 102. "Financing called key to mass transit," The Virginian- Pilot, July 25, 1989. 103. In fact, as this report goes to press in 1991, the prospects for a regional authority in Tidewater appear much dimmer. If the proposal ever did "galvanize" local officials toward a regional mentality, the progress is no longer obvious, and efforts appear stalled. See, "Hampton Roads Nixes Transit Authority," Arlington Journal (January 4, 1991). 35 campaigned in 1989 on a proposal for a transportation authority that would plan and finance major transportation projects in Northern Virginia. The authority would have been modeled on other authorities (such as the airports"). Coleman, like many officials in Northern Virginia, identified the fragmentation of transportation decision- making as a major impediment to rational long-range planning and coordination with other regional objectives.104 His transportation authority proposal was intended to achieve better coordination: "...transportation isnþt the sole problem. You have to interrelate it with land use, facilities planning, and education. I believe that we lack in planning in this area.105 Coleman's proposal had several positive aspects. It would have had high-level connections to VDOT, and it would have been chaired by a deputy transportation commissioner for Northern Virginia. It would have expanded the present regional focus by including Fauquier and Stafford Counties, now usually excluded from Northern Virginia bodies. By pooling federal, state, and local transportation funds, it would have served as an incentive to regional decision-making by linking funding to regional planning. The plan also had some serious drawbacks. As John Milliken, now Virginia's Secretary of Transportation, pointed out at the time, it would have separated transportation policy-making from the political accountability of local elected officials. It also left unclear the future of several organizations now performing functions that would be incorporated into the new authority. The Northern Virginia Transporta- tion Commission and the Potomac Rappahannock Transportation Commission now play a significant role in the region and must be taken into account. The rapid decline in interest in this proposal after the election may be evidence that it is not an idea with which most officials in Northern Virginia are comfortable. The creation of a single transportation authority empowered to perform the full range of planning, funding, and implementation functions would, in any -case, be much more problematic in Northern Virginia than in the Tidewater area. Any such centralization that did not take into account the positive work being done in various local and regional organizations might be futile, or worse, counter-productive. Regional Compact A much more promising possibility for effective regional coordination is the regional compact. In Contra Costa County, California, a regional compact helped to produce a regional political consensus for transportation improvements that had earlier been rejected.106 In 1986 a new regional 5 cent sales tax was proposed to fund transportation projects. Polls showed that 104. "Coleman Proposes Transport Authority," Washington Post, August 1, 1989. 105. "Coleman Seeks New Northern Virginia Transit Agency," The Fairfax Journal, August 1, 1989. 106. See, "Contra Costa County Links Transportation Tax to Growth Management," Urban Land, June 1989. 36 transportation was considered a major problem in the suburban county. Local city officials and the Conference of Mayors supported the measure. The referendum campaign received generous financial backing from developers and seemed likely to pass. However, a citizens ad- vocacy group composed of homeowners, environmentalists, and senior citizens worried about future growth organized a campaign against the measure and defeated it. When local officials faced the issue again in 1988, they were better prepared. A subregional planning process, much like Northern Virginia's, was formed to develop a plan for transportation improvements. The plan that eventually resulted, which was called "Measure C," proposed not only new funding for specified trans- portation projects but also tied the new funding to growth management measures in order to attack the growing traffic problem on a broad front. A transportation commission, composed of elected local officials was formed to implement the work of the subregional planning committees and to administer the new transportation fund. A portion of these funds was to be allocated to localities for repair and improvement of local streets on the basis of adherence to growth management guidelines. The remainder was to be used for the major transportation projects recommended by the subregional planning committees. Besides enacting legislation allowing localities to assess the transportation sales tax, the state of California also had a policy of earmarking special transportation funding for "self-help" counties. This gave the new transportation commission leverage for additional state and federal funding. When "Measure C" went to the polls, it received broad support, even among groups that had initially opposed the transportation sales tax. The measure not only linked transportation improvements to growth control measures, it also linked new funding sources to agreement among localities on major highway improvements. By developing a broad approach to solving the region's traffic problems and seeking a consensus both among citizens (through the plebiscite) and local governments, the measure's backers were able to gain a firm commitment from the various localities to work within a framework that would be mutually beneficial. Instead of having fragmented efforts to achieve growth control and free traffic flow in each jurisdiction at the expense of its neighbors, the region now has a sort of contract among the localities to work together toward a regional solution. The Northern Virginia area already participates in a successful compact to establish mass transit. TA, which runs the Metro subway and bus system, is a compact among jurisdictions in Virginia, Maryland, and the District of Columbia. This successful experience could serve as a model for the development of a compact to attack other transportation and growth management problems. In fact, the transportation improvement plans that have developed out of the Subregional Planning Process could serve as the basis for such a compact. General Assembly approval for new funding sources would be necessary. And the implementation of the plans would have to be supervised by some permanent organization with staff capabilities beyond those available to 37 the subregional planning process, which relies on other local organizations for staff assistance. The formation of a truly regional transportation commission would greatly facilitate the implementation of a regional compact aimed at coordinating transportation and land use policies. Transportation Management Associations Transportation Management Associations (TMAs), despite their title, do considerably more than "management." They are associations of developers, employers, and other private interests who engage in a wide range of activities designed to increase mobility in their own geographic area.107 TMAs promote ride-sharing, provide vans for pooling, assist members in meeting trip reduction mandates, finance street improvements, and even assist in long-range transit projects such as rail extensions. Many also work with city planners on housing policies, environmental issues, and other mutual concerns. In addition, they serve as an effective tool for integrating land use and transportation concerns in private planning decisions. One of the earliest groups formed was the Tysonþs Corner Association. It has started an area wide van-pool program for employees and a shuttle circulator for shoppers. Other such organizations are springing up rapidly and have the potential to substantially improve mobility in Northern Virginia. One way in which these efforts could be more effectively linked with public efforts is by encouraging the formation of a coordinating council for the TMAS, which could be represented in major public forums-rums for discussion of transportation issues. Among the chief benefits of TMAs is their flexibility. As a free-wheeling, en- trepreneurial framework for addressing problems, they can respond with greater speed and imagination than many public institutions to the transportation problems posed by intense land use. Regulatory Tools: Trip Reduction Ordinances A trip reduction ordinance requires developers and employers to develop and implement transportation management measures to reduce the percentage of solo automobile trips made to their establishments during peak hours.108 In some localities, such as Pleasanton, California, all businesses are subject only the ordinance and must meet certain trip reduction goals. In other jurisdictions, developments that exceed certain traffic-generating levels are required to participate in the trip reduction measures. The City of Alexandria has taken a third approach. Rather than include all businesses or only those that create certain levels of traffic, Alexandria 107. See, Robert Cervaro, Suburban Gridlock, (New Brunswick, New Jersey: Center for Urban Policy Research, 1986). pp. 96-99. 108. Id. pp. 118-21. 38 has designed legislation that requires all developments over a certain size (office developments larger than 50,000 square feet and residential developments larger than 250 units) to obtain a special use permit. To obtain the permit, the developer must conduct a traffic impact study projecting the effects of the development on the volume of traffic on local streets and intersections. On the basis of this study, the developer must prepare a transportation management plan that will achieve one of two goals, either a shift of 10 percent to 30 percent of peak hour traffic to travel modes other than the single-passenger auto or a trip dispersion rate that results in fewer than 40 percent of the single-occupancy vehicle trips occurring during the peak hour. Upon approval of the transportation management plan, the development becomes eligible for the special use permit. Once issued, the terms of the permit bind not only the developers but all subsequent owners of the property as well. This type of special use permit allows local planners to link land use and transportation planning goals directly with regard to specific development projects. It shifts some of the burden for linking transportation and land use concerns to private decision- makers without raising "takings" issues or threats of lawsuits as many of the more drastic growth-control measures do. Also, unlike some of the regulatory tools contemplated by local governments, it seems likely to survive scrutiny by the courts and the General Assembly. The down side of these trip reduction ordinances is that they seldom set specific penalties for noncompliance. If appropriate mitigation plans have been developed and good faith efforts have been made to implement them, usually no further action or enforcement is provided for, even if reduction goals are not met. STRUCTURAL IMPEDIMENTS Although a closer coordination of transportation and land use decisions is as much a question of policy integration as it is of structural change, there are certain structural or institutional impediments that should be addressed as part of the overall effort. The Labeling Problem In the American system of government, local governments are creatures of the state. Virginia's counties have traditionally served as administrative and electoral subdivisions of the state; they have performed a limited role as service providers for a mostly rural population. As urban population began to develop, municipal corporations were chartered in Virginia. With the Constitution of 1902, a sharp distinction was drawn between counties, cities, 39 and towns. The increasingly formal distinction among these forms of local government was influenced by the needs they served. Cities, which served the largest urban populations, were given complete in- dependence from the surrounding counties and granted fairly broad powers to raise revenues, provide services, and regulate the development of the community. "Towns, too, were given substantial powers to raise revenue and provide services, though they were not legally independent of the counties in which they were located. Coun- ties, which usually were rural areas, initially exercised very few powers independent of the state's administrative apparatus. As greater concentrations of urban and suburban populations have come to reside in unincorporated county areas, Virginia has gradually increased the power and discretion of counties. The sharp distinction between counties, cities, and towns was blurred somewhat by the 1971 Constitution, which deals with counties, cities, and towns in a single article. However, there remains a significant disparity between the powers and discretion of counties and municipal corporations. The 1980 census found half of Virginia's most populous jurisdictions to be counties. Fairfax county is more populous and has a larger budget than several states. These new concentrations of population into unincorporated areas of the state have created a "jumble of jurisdictional types: counties that provide city services, cities that have thousands of agricultural acres, and towns that have their own school systems."109 A Commission on Local Government Structures and Relationships (the Grayson Commission) was established in 1986 to review the existing scope and distribution of local governmental p