WHY DOES YOUR TOWN NEED LAND-USE ADVOCACY?
In many urban areas today, just driving to the store for milk is a time-consuming hassle; communities nationwide are disfigured by nearly identical vistas of Taco Bells, McDonalds, Dollar Stores and Dairy Queens. This overdevelopment and sprawl has resulted in part from citizens not being involved in community land use and planning decisions.
While America has many national organizations and foundations to advocate for endangered species, public lands, and climate change, none have any interest in forming local groups to fight sprawl. So, to fight sprawl, you will have to organize a local group yourself. Fortunately, stopping overdevelopment and sprawl is relatively easy compared with many other kinds of activism, but you must be somewhat better organized, be able to sit through long meetings, and find good analysts who can effectively write and speak.
Most of the U.S. has formal planning and zoning processes, as well as building codes to make sure tire recapping facilities don’t pop up in residential neighborhoods. Most overdevelopment and sprawl problems begin when developers seek exceptions, variances and changes to zoning and planning rules, or when communities extend water and sewer to formerly unbuildable areas. Fortunes can be made by buying land zoned and priced for one use—growing trees, farming or building single-family houses, etc.—and then obtaining a variance, rezoning or special-use permit from the planning department to use it for something more lucrative. Also, developers can simply persuade local governments to expand city boundaries to bring un-developable acres inside the city limits.
One would think that planning processes would be arcane and hard to understand. Not so. The rules are very simple, so developers can follow them. Moreover, everyone involved with the real estate business is concerned about secret or unrecorded loans, liens, and options, so all land records are open and accessible. Anyone can see up-to-the-minute status of titles, loans, options, assessments, taxes, addresses of owners and liens. Conveniently, most counties have put property records, maps, tax history and assessments online. When optioning some farmer’s land for a scheme, you must be certain that he has not already optioned it to someone else. When loaning money where land is the collateral, lenders must know the land does not have a lien on it already. So, all this information is public and transparent, so banks and title companies can ensure clean titles and avoid bad loans.
Most bad things that are destroying our environment are not due to stealth, complexity or secrecy. Everything is done in plain sight, with all of it laid out for everyone to see. Developers assume that citizens have no idea that they can stop overdevelopment and won’t notice what the developers are doing, let alone complain about them. Assume that whenever you are dealing with any arm of local government or any planning or economic development agency, that you are involved with a real estate speculator support group.
Should you oppose all development?
No, because not all development is bad. Many rural areas, particularly in the East and Midwest, are gradually depopulating to the point they struggle to keep schools and churches open or maintain volunteer fire and ambulance services. These communities could probably use more development. Land-use monitoring should be used to identify projects that harm the character of a community or its quality of life, reduce wilderness, or adversely affect endangered species and air or water quality. Projects that have substantial amounts of public subsidy need special attention because public funds are often used when projects cannot economically justify themselves and require taxpayers’ money to be feasible. In recent years, local governments have given away billions in tax credits and subsidies trying to attract or keep businesses which have no compelling economic justification to be there. Often these companies leave after their minimum time commitment is satisfied and the community is left with empty buildings and holes in its budgets. If you monitor projects for their environmental impact, you will likely find yourself eventually opposing projects that waste tax dollars.
Should you oppose projects which have a compelling human benefit?
If a project threatens endangered species, you should oppose it because otherwise you are discriminating against other species in favor of your own. Thus, you would be guilty of speciesism, which is worse than racism. Besides, developers have learned that they can get away with anything if they can package it with a feature that allows them to attack critics as prejudiced. If you are going to fill a wetland, make sure your plans include a clinic to serve disabled Native American lesbians.
How does fighting overdevelopment compare to, say, saving forests?
Commercial development can have even more adverse effects than activities like clear-cutting forests. Trees may eventually grow back. But if you cut them down and pave the ground, it is essentially forever embalmed. What good does it do if you “save” a river by protecting headwaters forests only to lose fish spawning habitat or wetlands in its flood plain through development? To save a river you must protect it from its source to the ocean. This means that every development watered from it and any parking lot that creates runoff into it is as important as a timber sale along its banks. From a biodiversity point of view, a timber sale in the headwaters of a river and a FEMA flood map revision, which decides where future development occurs, are potentially equally important.
How does fighting overdevelopment compare to, say, fighting global warming?
Activists who restrict themselves to “planetary issues” (and we are not saying there is anything wrong with that) miss a lot of the real action and problems of biodiversity. Once people in urban areas organize around issues in their neighborhoods, they are often willing to get involved in other issues. Also, land-use planning recruits people into politics because it is pure applied politics and thus is a bridge between being politically asleep and awake. The only sustainable activism is one that combines fighting both locally and globally.
HOW DO YOU GET STARTED?
To create a land-use monitoring program for your community, you will need a few careful, methodical people who can write well, meet deadlines, be patient and sit through long meetings. Your fellow activists must not be financially dependent on landowners or elected officials. You will need people who can absorb complex information and make formal presentations to public bodies—perhaps retired managers, grandparents and people with great concern for the community. These folks then start to learn about land-use rules and how to discover current or contemplated projects as early as possible. Land-use advocates thwart developments by blocking the necessary approvals required to begin them. Average citizens can create delays or rejections of projects by going to meetings and speaking up or filing appeals, interventions or objections at certain stages in the process. Quite often, bad projects need zoning exceptions and waivers to proceed, and a land-use group can organize neighbors to present opposing views at public hearings. Here is how you begin.
Have an attorney waiting in the wings.
If you intend to become involved in legal/regulatory/administrative processes as an adversary, you do not need an attorney on a day-today basis, but you should have access to legal advice should the need arise. In one fight I was in, the other side tried to establish ATV access to off-limits endangered bird nesting areas on ocean beaches in three states. The ATVers had engaged the pro-bono services of an aggressive right-wing law firm. While our local group managed the campaign, two state offices of the Sierra Club provided lawyers to vet everything we wrote and conduct legal research. In another land-use case involving the rezoning of rural land, a statewide land-use group picked up our case after we lost it locally and their lawyer worked with us to file an appeal and later take it to court. In both cases we won.
When you are involved in challenging development, there is always the possibility of being sued. Fortunately, 25 states have anti-SLAPP suit legislation on the books that may protect you from being sued for exercising your rights. (SLAPP: Strategic Lawsuits Against Public Participation). Also, there is a national group—The Public Participation Project—which gives advice to people who are being harassed for participating in public processes. Since you will need to raise money to do this work, you should probably be set up as a 501(c)3 organization so your contributions are tax-deductible. This will require an attorney. In any case, before you begin doing formal land-use monitoring, consult an attorney and do not entirely rely on this guide for legal advice as I am not a lawyer and cannot give legal advice.
Talk to your local planner.
Most planning decisions are made at the county or lower levels. Contact your city or county planning department and learn about your local processes. Most planning/zoning departments preside over formal processes that provide for public input.
Give your group a name and make yourself known.
Create a letterhead and go to meetings. The American overdevelopment machine operates on the assumption that citizens don’t pay attention to land-use processes. So, if a community merely forms a land-use monitoring group, gives it a name, creates a letterhead, and attends every planning meeting, that act alone will probably stop about half of the questionable schemes that would otherwise appear. Speculators know that many schemes cannot withstand scrutiny. If they know land use in an area is being carefully monitored, they will go elsewhere. A good rule of thumb is one good activist can thwart the plans and schemes of 300 bad guys, but this requires somebody to do 1/300th of the work that bad guys do. All developers are looking for sure things: windfalls where they get returns of hundreds of times their investment. So, when they see potential organized local opposition, they often go elsewhere.
A local Audubon chapter is a good base to do land use from as they are all 501(c)3 groups, they can raise and spend money on their own. Local groups of the Sierra club are not individually incorporated and have restrictions on raising money and conducting projects on their own. The exact organizational form your group should take will be decided by local and state factors, what organized land-use monitoring exists in your state, and what kinds of projects you want to take on.
Attend meetings.
Try to have observers at meetings of city and county legislatures, as well as planning commissions. If you have an active League of Women Voters chapter, they will often have official observers at legislative sessions with whom you can coordinate. Don’t overlook last-minute notices for “special meetings,” which may be called on 24-hour notice. Depending on where a project is located and what issues are involved, projects can be in different planning commissions’ jurisdictions (village, town, county, regional, etc.), so each must be monitored. And this will involve examining the applications and agendas for each meeting. If there are economic development entities, they must be monitored, too. If you create a group with a name like “Citizens for Smart Growth” and make a letterhead, planning and other boards and commissions may put you on their distribution list for board member packets if you ask.
Get standing.
Often projects can be officially opposed only by people with “standing.” To get this you may be required to be present and sign in to a particular meeting or hearing or submit comments in a specified time frame. This is unlike many federal issues where any citizen can get on a mailing list and jump in. Time frames to appeal planning decisions also usually have strict time limits. In most cases, you will find that, absent your formal intervention, whatever the developer presents is taken at face value and approved if no one objects. Planning processes are quasi-adversarial proceedings and, if there is no other side, then the side that shows up usually gets what they ask for. Over the door of every planning department should be a sign, “Surely if there was a problem we would have heard.”
Participate in any community planning processes.
One also needs observers at any local planning, sustainability or visioning process that communities, chambers of commerce, governments, economic development organizations and other alphabet soup groups love to create. Commitments to future growth are often incorporated into these vision documents which, if unopposed, develop a life of their own and are presumed to reflect the community consensus.
Try to pay your lead land-use monitor.
Volunteers are not always appropriate for land-use work. Volunteer-type work is generally the kind that can be done on a flexible schedule in someone’s free time. Anti-growth work has very inflexible hours and is more like a job, as it requires attendance at public meetings that cannot be missed and written comments on strict deadlines, and these tasks are like “real work.” So at least reimburse volunteers for out-of-pocket expenses. If you stop projects that harm a community, it should respond by donating enough money to pay part-time volunteers. Large foundations don’t like to make grants to finance work which could be seen as publicly criticizing locally powerful people or businesses, as land-use work sometimes does. However, small private family foundations might fund local land-use monitoring without requiring the work plans, red tape and junior corporate planning large foundations demand. I funded a part-time land-use monitor and all their out-of-pocket expenses for over ten years with just local donations and occasional grants from a couple of small family foundations. As a general rule, foundations will never fund any grassroots organizing of any kind because their primary purpose is protecting their endowments, which are the stocks in large corporations. So, they do not fund grassroots activism for the same reason monks don’t dissolve monasteries. Also, land use often becomes political and foundations only fund non-profits, which can’t get involved directly in politics.
Volunteers often resist getting paid or asking for reimbursement, but you should insist on paying for at least their expenses or you will find them financing their activism from their family food budget and possibly incurring spousal resistance. People who volunteer their time should not ordinarily be expected to volunteer their money, too. If you want to avoid abusing your volunteers, demand that your inactive or passive members take on the responsibility for paying the expenses of active members. This also gives inactive members a way to fully participate in grassroots activism.
Identify state and regional technical/legal resources.
To find out who in your state can help you, call the state office of the Sierra Club or Audubon or any umbrella organization of your state’s environmental groups. Google how to stop or appeal land-use decisions in your state. If all that fails, give me a call and I can research the situation in your state.
Sometimes statewide smart growth groups can furnish legal, strategic and even financial support. Depending on the issue an individual project presents, state or federal special issue groups may be able to give technical advice, particularly if clean water, toxics, pesticides, CAFOs, wind towers, wetlands or endangered species are involved.
Read the local newspapers religiously.
Particularly pay attention to public notices and the fine print in the back of the newspaper. Bad projects you can still stop will be in the back in small type, ones that are well-along will be on the front page in big type.
Subscribe to agency mailing lists.
This will keep you in the loop of notices of administrative actions for government agencies like the Army Corps of Engineers, state departments responsible for parks, environmental quality, highways, and federal and state forests. Each will maintain a mailing list where people are informed about pending actions. For example, wetland fill permits pass through the Army Corps of Engineers and provide the first indication something is underway.
Often problems will first surface through notices from the state highway department. A small town partially owed its rural remote charm to the very winding road that led to it, which kept it isolated. The routine notices that the state highway department issued about upcoming projects were the first inkling that the state had approved money to straighten out the road and change the town’s accessibility. Without subscribing and watching for these notices, issues can often slip by until it’s too late.
Depending on your proximity to rivers, you should subscribe to FEMA’s and the Army Corps of Engineer’s list of notices for proposed actions for information on developments in floodplains, floodways and issues that involve flood plain maps. In one situation, stopping a proposed 6-inch decrease in the projected height of 50-year floods thwarted the rezoning of 6,000 acres of waterfront property from unbuildable to buildable. But this was only possible because a land-use advocate was present in a federal meeting 250 miles from home where FEMA floodplain maps were being drawn. Fifty- and 100-year flood lines on maps are what determine if property can qualify for loans and be insured. These lines, like most lines on maps that involve money, are negotiable.
Get involved with your local county Republican and Democratic parties.
Have someone from your group join the local parties as precinct people. County parties usually have seats on the state central committee and, if possible, get your person to serve on that group, too. All land-use and environmental activism is a subset of politics. If your members become involved in local political party activism, it will make your work much easier than you can imagine.
Join citizen advisory boards.
State and federal land management agencies love to create citizen advisory groups and turn over their decision-making to these boards that presumably represent the public interest. An amazing amount of their decision-making often devolves upon these boards. One week I stopped the clearcutting of 200 million board feet of ancient forest because I was a voting member of such an advisory board that made decisions by majority vote.
It is just as valid to go to a visioning or sustainable future or community revitalization meeting and argue to down-zone a strip zone and return it to farmland as it is to argue for more growth to create more jobs. If any community has decided that it has enough jobs and growth, it is unknown to me. Some in western Canada and the Dakotas probably wish they never had the runaway booms and subsequent busts which left them worse than when they started.
Read local, regional and state business journals.
Be aware of any conferences, publications and yearly reports of your state and regional economic development groups, sustainability roundtables, visioning groups, and development authorities. Very little bad activity occurs without the early public endorsement and lobbying of economic development and chamber-of-commerce-type organizations. Much of what was once thought of as government budgeting and decision-making has been delegated to economic development and regional planning operations whose glossy reports extol what they have done and everything they hope to do. If there are plans to turn your sleepy local port into an international export terminal for liquid natural gas, the local economic boomers will be boosting it years before it turns up on the front page of the paper.
Pay attention to what is happening in your community.
If you see workers digging a strange new trench, putting up survey stakes or otherwise preparing to do something large and inexplicable, always stop your car and ask them what they are doing. The workmen will usually tell you. It’s your community so you have a right to know what is happening. Workmen don’t go around putting stakes in the ground or looking at distant scenery through funny-looking instruments unless they have a really good reason for doing so.
HOW DO YOU STOP AN INDIVIDUAL PROJECT?
Collect publications.
Get a copy of every development guide, and local, regional or state land-use plan, or planning or development guideline any authorities have created to regulate planning, zoning and development. This sounds harder than it is. The whole real estate development process is set up to help developers and speculators get project approvals, so they usually have lots of material to help them. You can use these materials, too.
Find a neutral land-use planner or real estate attorney to help you.
Oddly enough, even counties that have very pro-development policies often have county planners who are helpful to land-use monitoring groups. This is because the one thing that can derail or endlessly delay even a perfectly legal project is the planning department’s failure to follow the citizen input provisions. Attorneys who may not want to be publicly involved with stopping development, may help you understand local processes.
Determine if the project conflicts with any applicable regulations.
Often states or counties have land-use plans with formal or high-minded goals, principles, standards and objectives that conflict with project proposals. Also, there are state rules and codes the project may fail to comply with. Projects must meet strict requirements for all manner of things and have been stopped for issues of water quality, storm runoff, minimum turning radiuses for firetrucks, number of parking spaces, and limitations on how steep or wide roads must be or how many yards of fill can go in a wetland. Some states have their own threatened and endangered species laws and lists which are different from the federal ones and may require biological surveys before projects can be approved. Activities that directly or indirectly impact waterways, flood plains and wetlands can conflict with all kinds of state and federal agency regulations, which you will have to search out and document. Most projects involve public money, grants, low-interest loans, or other incentives, so while a project’s violation of a wetlands guideline may seem unimportant to a county planning commission, it may prove fatal to the federal grant that was going to finance it.
Document the file.
It is important to make any information and issues you introduce a formal part of the file in case you appeal. Also, to appeal you may need “standing,” which may require you to have officially become part of the process by signing onto hearing sign-up sheets, testifying or providing written public input at a specified time.
Review environmental impacts.
Typically, developers meet their environmental requirements by contracting them out to consulting biologists to perform necessary surveys and analysis. Unfortunately, the easiest way to determine an endangered bird or plant doesn’t exist in an area is to do a superficial survey. I have seen dozens of projects where endangered plants and critters were found where a contract biologist certified they did not exist. Federal, state, and consulting biologists who do endangered species surveys may be cautious discussing projects under their jurisdiction but are often delighted to provide information on land they’re not responsible for.
Once I was involved in a project sited in the likely nesting area of the rare Marbled Murrelet, a small bird only seen flying at high rates of speed through the forest canopy at dawn and dusk. The consulting biologist said there weren’t any there. But an environmentalist camped out there for a week and laid on his back in the open looking up at the canopy in the project area and sighted three of them and this stopped the project. I have been involved with stopping projects where we found endangered salamanders, flowers, lichen and birds that agency biologists and endangered species surveyors had overlooked.
Laws with teeth, like the Endangered Species Act and the Clean Water Act, often do not actually forbid people from doing horrible things to the environment but merely require complete advance disclosure of potential harms. So, the documentation for projects often contains large amounts of information about expected problems with a project. Moreover, failure to properly disclose these harms and impacts—not the harm itself—is often the reason projects are stopped. You may not be able to get a project stopped merely because it will pollute water or harm some endangered species, but you can stop it if the project omitted to say so in its environmental analysis.
Develop a strategy.
Almost every project you decide to oppose requires a different strategy. Every challenge has unique vulnerabilities and you must find and exploit them. Good preparation might be reading Saul Alinsky, or a book about how to fight wars (because all grassroots campaigns are mini-wars). What the great organizers found is that once you have won a couple of public, hard-fought campaigns, then if you simply explain why you oppose something and describe how you intend to fight it, the other side will simply fold. In fact, Alinsky won many of his biggest campaigns by simply describing what he would do if he did not get what he wanted. The first Earth Day demonstrated if you are organized enough, even Nixon will sign clean air, water and environmental protection laws (or, conversely, school superintendents will cheerfully support teaching high school biology classes that the world is 6,000 years old).
Learn land-use appeal procedures.
Many land-use processes have appeal provisions, so even if you lose at the local planning commission level, you may be able to bring the issue to a county legislature. Or if you lose there, bring the issue to a higher regional or state forum. When you have a pro-development local government and are likely to lose at the first level, much of what you will be doing is gathering documentation in order to overturn local approvals on appeal later. Of course, many decisions ultimately can be then taken to court. After the first level of hearings, the decision will be made based solely on what is in the file; nothing anyone tells you or promises you exists if it is not memorialized in the file.
Stopping bad projects is like stopping illegal marriages: in traditional ceremonies, the minister asks for objections and, hearing none, tells people to “forever hold their peace.” Although a project may violate dozens of laws, if no one introduces objections in the planning hearing, the project will often be approved, and your community must forever hold its peace. If you want planners to deny approvals, you must provide documentation they can hold up when they turn it down. Planners spend their lives with developers and the public is rarely heard. Absent organized advocacy, planners are loathe to reject applications because they would appear to be giving developers a hard time and in most communities their job requires them to be on good terms with local developers and speculators. But when you furnish solid arguments against a project, planners can point to the regulations—or to you—to rationalize denials. Land-use monitors, and all environmental groups, provide the counter-political pressure and political cover dedicated public servants absolutely must have to stand up to bad guys.
This essay is adapted from my book Organize to Win Vol 1 which can be downloaded for free from Britell.com
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