The following chapter from “Finding Density” looks at the simplicity of water as a regional development strategy. Combining the duality of land/water systems as interdependent brings ideas for density, or “compacity” into focus. It also turns to a growing dependency on transit-oriented designs with this interest in taking a look at the Northwest by not repeating the mistakes of the Northeast.

Rex L. Curry

Successful municipal economies yield control of its laws governing annexation and eminent domain to state governments. The loss of decisiveness and accountability caused by ever-lengthening adjudication proceedings is destructive in that it forces an ever looking “outward” for revenue. The boundaries have been the same for over a century for New York City and it proves the look inward is the way to thrive on limits and prosper.

New York manages the complexity of its social diversity; it conducts daily battles rooted in zoning; it sustains a quality bond rating. It has written and re-written the rules of what is and is not a “taking”. In brief, it is a powerhouse of jurists and litigators.  Despite the intense political debate, it gets to the truth. On this point, the City’s zoning laws became fully accessible to the New Yorker public in early 2019.  Having the NYC Zoning Resolution  (ZR) online for anyone with an interest in its authority, practices and procedures put all proposed changes upfront. In the spirit of transparency, the full text went live as a beta version here because the City Planning Commission (CPC) sought feedback with a link.

That huge 1,570-page physical binders will no longer be printed in preference to a digital platform still provides access to all 14 Articles and 10 Appendices, plus 126 Zoning Maps and Special District boundaries. The use of ZR’s police power to contribute solutions to problems is well known. It has aided in the production of affordable housing, perhaps the city’s most serious dilemma but it addresses even more complex problems such as the impact of climate change on a compact urban environment such as New York City.  The creativity demanded by land area limits and looking inward for solutions to problems also isolates and defines in sharp detail a set of dependencies that remain outside of political boundaries.  One of the most important is water.

The origin of New York City’s success is retaining clean water coming in as well as going out, but the initial plan to accomplish this goal has grown to control much more land outside of its boundaries that it has within. Like other cities, two interlocking parts energize the City’s power. One sustains a sophisticated, occasionally stealthy war of antidevelopment heartily welcomed by the wealthier suburbs, while its counterpart offers the prospect, if not the full reality, of development in the dense urban center that is without limits. Recently added sweeteners of growing value are enormous economies of scale in environmental protection.

Highly useful boundaries emerge that define everything from “a 20 x 100-foot lot” to “the wilderness”.  The downside of this approach are blunders of local governance, especially as it applies to the regulation of land use for water. In these two basic envelopes, one is defiantly anti-development to yield clean water in the reservoirs freely given by a forest root system, and another offers no limits for the human settlements in it use as it returns to the global ocean’s vast water cycle. There is an economical triple bottom line menu here if it (wilderness and metro-region) is reinvented as a duality of land and water, as it gives users an “in or out” boundary for the application of an essential life cycle criterion.

Once both are defined with a relatively hard edge, the performance within each becomes accountable to a standard. The combination of private ownership associated with the rules of limits defines “in or out” options that tend to strengthen an “as is above, as is below” structure for debate. The rules that govern the use of a 20 ft. X 100 ft lot in a compact city remains compatible with rules guiding the use of land throughout the state. Protecting one protects or defends them all. The genius of this is how it supports the two permanent and essential elements of tension vital to democracy, decisiveness, and accountability.  That is, until recently. 

New York City and Environmental Conservation

The reason urban development policies incentivize is in preference to the enforcement of penalties or the provision of subsidies. Minimizing standards for low-density water treatment, site-by-site opens hundreds of individual pathways to corruption across a vast landscape of jurisdictions. Nevertheless, American values strongly support multiple centers of social and economic power to assure a layered political leadership structure. An example is the authority of the states to charter cities. A broader example is support for the lawful rise of social change movements seeking the means to alter, then “fix” boundaries of all kinds. This kind of “don’t tread on me” diversity is seen as a source of leadership. The reality of this structure is the fallacy built into the continuous growth assumption.

The image (above) is the water system in the NY metro region. Long term predictions expect a modest increase in rainfall.  The image (below) is from Wells Dry, Fertile Plains Turn to Dust (NYT 5.19.2013) illustrates a five ft. to 150 ft. drop in water from the High Plains Aquifer running from Nebraska to the Texas Panhandle. A multi-state regional water system that defines loc. These localities are politically incapable of yielding values of independence in trade for a common good. Core issue rooted the nation’s land use policies is how it is entangled in its social problems.  The American frontier view of nation-building is part of this, yet, another view highlights the rise of the national highway system in a nuclear era and represents forces aimed at developing the landscape without the introduction of countermeasures or public interventions associated with conservation. Policy: there is plenty of land and water, so use it.  What if these systems are dying?

When a will of the people strategy is employed, is the complaint about poor leadership? It is far more accurate to describe it as a lack of vision beyond state borders. The frontier has moved, it is no longer out west. The frontier is everywhere and it involves everything affecting everyone all at once. A basic human need such as clean, use water, that connects metropolitan regional policies to urban centers would be capable of collecting and re-charging water systems leading system protection.

To get a sense of the importance of this issue a based search using the words High Plains Aquifer Map will quickly illustrate local concerns from the Nebraska Water Science Center of the USGS to Everything Lubbock TX worried about nitrates linked to uranium contamination in the aquifer water that may come from fertilizers, animal, or industrial waste.

Wanted: A Density Trigger and a Clock

Do not blame America’s 20th c. Middle-Class for its useful affluence or its fascination with innovation. The belief in the promise of carefree life remains as easily exploited today as it was in 1950. Half a century ago urban design thinking capitalized land with a street and a car; now it needs to be an alternative. The street remains vital sans car but not sans mobility.  Therein lays a new problem.

Bellevue’s compacity just east of Seattle, WA is a good example. The completion of two 450-foot 43 story towers among five approved will hold 543 units on a 10.5-acre site with a 900-car parking structure. Why room for so many cars? Site approvals include a build out to 900 units and three proposed office towers with hotel and retail shops pending market conditions.[1] In brief, the site will have plenty of reserve multi-level parking. Car storage is still a key in the “get in the black early” strategy, but down the road, Bellevue planners probably purchased serious auto congestion.  Therein lays the solution.

The introduction of a subway or light rail system is an automatic density trigger if it connects the right stuff. Why does this system require a planning clock with a half-century movement hand? Perhaps it is the attendant exaction process needed to produce distributive benefits to the city such as a mass transit system. Housing affordability is another example, to avoid the “Aspen Effect” but it will of necessity include a variety of building design treatments aimed at mobility in the small scale using alternatives. 

The idea of a density trigger assures that the mass transportation process begins first. New mass transit partners are growing rapidly; they are eager to help evaluate costs, alternatives and so on. Setting a density trigger through zoning establishes a priority that “points” before it shoots. The history of mass transit has been “ready, fire aim”.

If zoning tips off the land-owners to the idea of growth in a larger, more compact city it could plan triggers to take it away by suggesting a time interval for planning that frames accountability for direct as well as unintended consequences. Developers and city administrators are intelligent enough to work out tax increment financing deals or other creative time value approaches much like a hedge fund.[2]

Transit Oriented Design Case Study

For a century, the zoning rules and tools of local government have promoted low-ground coverage for residential uses while expanding coverage with other impermeable surfaces for vehicular access to everything else. This includes the driveways and decks often uncounted in coverage data to the lots required by the retail model. Traditionally suburban county and municipal rules and tools abhor density, detest mixed land uses, and resist all regulatory control processes that call for performance measures.[3] Changes to these views are being altered by projects such as Bellevue in Seattle, WA.

Even though the quality and amount of space between multiple uses hold no priority, in much of the road warrior world of low density, some good news remains. A relatively small overall coverage percentage remains for most regions and the nation.

The bad news is low-density land uses continue to spread exponentially, and there is no stopping or questioning this type of growth due to hundreds of local governments per region. Not one of them wants the change that comes with density.

As planners and developers look at trains again because suburban real estate continues to have a long-term boom look to it. The centers of these little booms seem to be every station along the remaining rights of way laid out for trains nearly a century ago.  There is only one thing missing – a reason to go up and down the line.  A creative drive to establish destinations one station at a time. In the meantime, all anyone needs to do is to look at the rate of land purchases near every train station in the region of every major metropolitan region and center.

The most recent and bold example is Warren Buffet’s purchase of the Burlington Northern Santa Fe railroad. This investment in 21st century energy-conscious transportation is compelling because his other “old technology” bets have been winners. It also stimulated many others to look at the land along the line only to discover that Buffet had been doing so for a decade.[4] 

Trains can move more than goods and people to more places with less energy, and as the image below suggests, rail could propel a very broad range of investment interest toward some of largest undeveloped sections of the United States. (Wiki)

Aside from researching land/rail purchases, another barometer is recent work of the Government Law Center on the number of local law review articles using green and sustainability issues to address land use law and practice.[5] Without a doubt, the relatively rural traditions of local land use planning need incentives to accept new ways of thinking but make no mistake about the motive for change. Even with “green and sustainability” tags, the task of maximizing investments by reducing risk holds priority.

Urban planning functions because banks, lawyers and developers drive it. The resource requirements to offer new ways to reduce greenhouse gas (GHG) or more sustainable environment do not occur without bowing to a compelling capital return. Public rules, on the other hand, can require or limit significant portions development opportunities to “B” corporation structures adhering to specific aspects of triple bottom line practices assigned to their mission.

The Clearwater Junction & Kittitas Question

Protect the Northwest from what happened to the Northeast.

The north-south axis of BNSF and its northwest axis links to Cascadia, also known as the Northwest hub. Amidst the Clearwater, Lolo, Flathead, Bitterroot, Nez Perce, and Helena National Forest there are many conservation areas. The forests of Montana, Idaho, and Washington present the full breadth of a true wilderness. It also represents a mixture of wildlife entrepreneurship at loggerheads with conservation.

The value may seem incalculable. It is not. Write “Northwest National Forest” into a search engine (See Google Map below) and a vast range emerges. It illustrates an opportunity to get it right or turn them into “parks.” It is hard to imagine areas of this size surrounded by developer bids to “live alongside” or “work them” but one only needs to look at the “Northeast” insert to recognize that all that is left are isolated, invisible parks at the same map scale.

These Areas are Equivalent in Size

Anyone that has been in part of the thick forest for more than a few days understands why the desire to be in it defines one of the great joys of life, perhaps its meaning. It is not surprising that resistance is significant when attempts to develop housing through subdivision occur. A recent effort at protection against housing development used only one tool -the threat of predatory attacks. The central argument made by the Fish, Wildlife and Parks Department of the State of Montana in resisting a 200-acre housing development in Clearwater Junction, MT is rightly based on this threat. The proposal for a 119 single family home sites was reduced to 59 in a compromise that included a variety of plan amendments such as a fence/wall surrounding the property. Again this plating alternative was again.

The developer continued litigation efforts to proceed until the Montana State Supreme Court affirmed the community’s denial for development on appeal. See Richards v. Co. of Missoula, 354 Mont. 334, 223 P.3d 878 (Richards I) and Richards v. County of Missoula, 366 Mont. 416 (Mont. 10/23/12).

As developers continue to produce strident objections to the environmental concerns cited by public authorities, the courts will often point out other ways to seek a remedy based on mitigating potentially deleterious impacts to wells, septic systems, and water resources on nearby properties and agricultural lands. A project’s failure to comply with irrigation laws, eliminate impacts on creeks, do not address violations of specific kinds of growth. Development plans and the transfer of rights through protection policies are all successfully litigated subjects defining the opportunity for compacity, urban clusters capable of meeting the need to be part of the wilderness but not living the wild, for that is its destruction. 

While forms of new urban development seem to be reasonable grounds which denies developers (Richards in this case). The court noted the making of “no effort to refute those objections” with alternatives for a reason – the illusion of wilderness living. It is ironic this case was lost on the danger to human life via the threat of predation when access to all the wonders of life in the wild would remain available to experience except one — the idea plunking down houses in it.

Case Study

Kittitas County in Washington is to the east of the Seattle, Tacoma urban area, and known to most national urban development observers and planners as Cascadia. At the turn of the century, Kittitas County had a few small towns east of the Snoqualmie National Forest along US 90. It is here where the battle over density and urbanization is very sharp, but it is losing the battle for conservation. 

One group, the Kittitas County Conservation Coalition’s central mission is the “preservation of a rural future.” A benchmark that sparked the formation of this countywide nonprofit was the closure of historical “trailheads” by private landowners. These trails link the past to the present and define an exquisite wilderness.  They should not be lost. The hope of this organization seems directly dependent on a fragile, but comprehensive statewide conservation initiative. It is the well-known, highly examined, and heavily documented Growth Management Act (GMA).

The state requires local governments to invest in comprehensive plans and comply with state and federal standards aimed at the protection of wetlands, streams, farms, and forests. This investment has heightened the debate on questions of growth and density and intensified the role of citizens groups such as the Kittitas Coalition. These issues pit the emotions and traditions of ‘frontier independence’ against the capacity of the state and local planning agencies to manage urban development as it occurs one plat, one PUD, one commercial farming, forest or retail project at a time. Before it was removed for viewing online, maps on the Kittitas Coalition’s website illustrated changes in land use regulation by zoning designation from 2000 to 2009. Perhaps the concern represented by the move to a virtual private network (VPM) was not to not aid developers with their formidable insight or to help them recognize areas where developer interest was occurring and could continue in consuming wilderness environments.

Increased public involvement in planning is exhausting, but the dialogue on how local governments need to plan and develop housing and services for all income groups has rarely met with success. The overall density of Kittitas is low at 17 people per square mile, but almost half of the housing in the county is rental, and nearly 60% of its 38,000 residents live in urban areas. Public planning helps the community to anticipate and respond creatively with facilities or services. Nevertheless, the overwhelming pressure of exponential population growth throughout the state is unrelenting; it exhausts the GMA and reveals a continuous battle largely based on the lack of alternatives to the single-family house (SFH).

From a national planner’s perspective, Seattle and Tacoma look something like Manhattan, to the east of Seattle and Tacoma there is a massive national forest. It looks like it could be something like one of New York’s large open spaces such as Central, Prospect, Pelham or Gateway National Park. While everything is very different to the northeast from the typography to the trees, places like Kittitas are beginning to look like New Jersey – a super-suburban state and most the densely populated state in the union.

What would happen if I drew a line around the little urban part of Kittitas? Inside this line, growth would be exponential to an upper, unknown density only limited by one rule, that it is not poisonous to anything and everything outside that line. Everything outside that line would become wild, with only the homesteads it has now. The development would be limited and comply with the same no damage rules. Would those who found themselves owning and controlling portions of these two worlds recognize the enormous value of each? A hint at this possibility emerged in May 2010, when Jason F. McLennan, CEO of the Cascadia Green Building Council (CGBC) announced a change in mission that envisioned the need to look well beyond buildings and to take a sectional view. Cascadia’s mission is, “to lead a transformation towards a built environment that is socially just, culturally rich and ecologically restorative.”

McLennan also recalls how the northeast experienced a similar response to “rapid growth” at the turn of the last century for colleagues and policymakers of Cascadia these mistakes can be avoided. Concerns about haphazard growth and lack of coordination influenced the creation of the Regional Planning Association (RPA). This outfit recognized the importance of linking the interests of three states — New York, New Jersey, and Connecticut. Established in 1922, it published the first regional plan in 1929, just before the advent of the Great Depression. RPA has a very deep archive, it has survived as a nonprofit agency, and given its longevity, it will emerge from its first century as a brilliant critic of the status quo and a staunch supporter for regional planning. It has the satisfaction of being right, self-correcting, and the dissatisfaction of being largely powerless.

Perhaps most telling of this duality is the title of RPA’s most recent local plan, Region at Risk.[6] It is likely history will repeat, as the central problem remains. Nongovernment organizations (NGO) like RPA or Cascadia’s CGBC are insufficient. They are greatly needed instruments for public education, but cannot draw the line in the sand that Cascadia is desperately attempting to bring in a kind of “time-delayed” wake enclosed in RPA’s almost desperate warning about the risks. Today RPA’s mission is a demand for social justice, a regional “greensward” and a seamless regional transit network. All remain its toughest unheeded challenges.

Those who could grasp the long proactive view have defined the current practice of regional planning as disjointed and incremental.  The “long tail” vision of America is one that offers a multi-modal, national transportation system, a diverse and creative multicultural society, and a progressive yet, globally competitive outlook.  Instead, we have an oil-addicted road system, increasingly polarized residential enclaves with laisse-fair politics, and the collapse of self-regulation as a viable American value. Perhaps, the lesson here is still far too bright, too optimistic for policymakers to take heed.

In response, I would have them know on my and your behalf that The Republic is without a lawful means to invoke the practical work that would allow one state to cut across jurisdictional boundaries of another in their mutual interest and that the discovering these interests is the only way The Republic will stand.

A crucial aspect of our urban metropolitan future is to spend some time looking past our borders for some encouragement. Clearly, NYC is happy about its positives, but a good plan for density starts and keeps momentum by defining serious new problems. You know, those hiding inside the smaller, older problems.

New York’s extraordinary history of support for affordable housing got some help in March of 2015 from the New Jersey Supreme Court. In the same way, New York City looks to the north for its environmental protection (e.g. clean water), it should look west at the two-edged nature of that calculation toward 2050.

Efforts to get New Jersey’s local governments to provide a fair share of affordable housing establish diversity and assure affordability remains a difficult road to travel but the routes were taken to date are instructive for the metro-region and the nation as a whole. In part, the density of New Jersey as a suburban state (yet, the densest in the country) brought to light sharp social and economic divisions stimulated by the so-called “white flight” and “spread-city” period out of New York City and Philadelphia in the 1960s and 70s with recovery in the 80s and 90s. The search for remedies to the social, economic issues presented over the next half-century is represented by unyielding efforts to link housing to social justice in New Jersey and with it, improved access to quality education and employment for the entire metropolitan region.

In 1983 the NJ Council on Affordable Housing was established with the power to require a local jurisdiction to comply with court order known as the “builder’s remedy.” This power was not renewed by the legislature in 1999. It was not until 2015, and considerable analysis of local government “certification” processes that the New Jersey Supreme Court established a state constitutional right to housing. The state can require local governments exercising its land use regulatory powers to “make realistically possible the opportunity for an appropriate variety and choice of housing for all categories of people who may desire to live there, of course, including those of low- and moderate-income.”

Those familiar with the Mt. Laurel One (1975) and Mount Laurel Two (1983) decisions will recognize the continuity of this most recent case leading to the re-adoption of the powers of NJ Council on Affordable Housing (March 10, 2015)[7].

One other gem in the inter-regional establishment of affordable housing is the region’s wealth of economic mobility. That mobility is threatened by the “on again off again” need for a mass transit tunnel that transportation agency planners, state and local leaders see as essential for two reasons.  First, the existing tunnel, while a miracle of construction is an official antique at 100 years of use.  It could kill many people, with the possibility of a catastrophic failure and if this risk occurs it will also disrupt the economy of both states for decades.  It may be possible to monitor the progress of this effort by following the Gateway Program.org


[1] The developer is based in Salt Lake City: Wasatch Development Associates

[2] Tax Increment Financing (TIF) is a financial tool.  Used will it helps local governments to sell debt in the form of bonds to pay for infrastructure (highways, subways, energy) and aim it at areas that need these improvements.  As land uses change, the neighborhood mix might contain former warehouses, industrial uses where the reinvestment risks are too high in comparison to the same investment options on “green fields”.   In this way, older, formerly compact neighborhoods can rid themselves of past errors in the quality of use and retrofit them with innovative housing solutions, with new combinations of private and public transit serving retail/cultural destinations.  When ideas like TIF tie to a “density factor” they give cities a way to make right past errors for good reasons.

[3] As mentioned in “Finding Density” the urban center leadership found in Miami 21 (October 2009), brought the “transect” idea forward.  It may change everything in land use management.

[4] On November 3, 2009, Warren Buffett‘s Berkshire Hathaway announced that it would acquire 77.4% of BNSF for $100 per stock in cash and stock, in a deal valued at $44 billion. The company is investing an estimated $34 billion in BNSF and acquiring $10 billion in debt

[5] See Sustainability and Land Use Planning: Greening State and Local Land Use Plans and Regulations to Address Climate Change Challenges and Preserve Resources for Future Generations.  The study reviews six initiatives, 1) land use planning process in the nation, 2) state and local climate action plans, 3) emission rules and EIS reviews 4) zoning and regulation, 5) building codes and 6) water management and landscaping initiatives Download article SSRC website: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1503379

[6] Cornell University holds a collection of Regional Plan Association’s materials from 1919-1997.  Those materials are available for research by contacting the university library.

[7] The opinion can be accessed at the deep end here: http://www.judiciary.state.nj.us/opinions/supreme/M39214COAH.pdf

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