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(March 2006) posted on Tue Feb 28, 2006

While signage is directly affected, the premises of the insidious Growing Smart Legislative Guidebook should enrage any American who owns property or runs a business.

By Wade Swormstedt

If the American Planning Assn. (APA) gets it way, George Orwell's ghost could write a sequel to 1984 by adding 18 years and changing the incessant intercom drone to "Long live the APA." As it now stands the Growing Smart Legislative Guidebook, a six-year, 15-chapter, effort that utilized $2 million of taxpayers' money, wants to give unelected people the ability to govern your use of private property, which also means your business. And it gives them the ability to take away your property, if someone arbitrarily decides it's a wetland. Or they can take down your sign with no compensation if they decide they don't like its color. Oh, and you can go to jail as well, as there are retroactive criminal sanctions. To a certain extent, any subsequent action is relegated to damage control. The printed Guidebook is already available at the APA Website (www.planning.org). However, the damage could become alarmingly pervasive if the Community Character Act (S. 975 and companion bill H.R. 1433) is passed. It would allot $125 million of federal tax money to publish and disseminate the Guidebook in all 50 states. Unfortunately, the Senate bill stems from the Environment and Public Works Committee (EPW) chaired by James Jeffords (I-VT), with bill sponsorship by Lincoln Chafee (R-RI). Each has a notorious hatred for billboards. Jeffords co-founded the Senate Smart Growth Task Force, along with Sen. Carl Levin (D-MI). Fortunately, the congressional subcommittee hearing was chaired by a property-rights advocate, Steve Chabot (R-OH), whose testimony is excerpted in this article. The Guidebook allegedly concerns "smart growth," safety, aesthetics and other "noble" endeavors espoused in its empty rhetoric. But it is a control issue, pure and simple, by people who would love to convert America into a Soviet state...as long as they hold the power. People who view the Constitution as optional. People who want to tell you how you should live. People who want to control your life. People who certainly would squelch this article if they could. Case in point. Daniel Mandelker co-wrote Street Graphics and the Law, which, unfortunately, has been viewed as a planners' guidebook since its publication in 1988. Writing about her father in the Fall 2000 edition of the Washington University Law Journal, Amy Mandelker said: "The scenographic ideal proposed by the authors of Street Graphics and the Law was, in some measure, realized in the actual practices of Soviet Russia: the creation of wide public spaces, neatly planted and fringed with green zones, the uniform coloring and lettering of state-sponsored slogans and citations appearing on posters and banners, and the use of coded symbols in street signs and on-site advertising. For example, bakeries used the same sign style and lettering throughout Russia so that most stores and services achieved the instant recognition limited in the West to hospitals, post office boxes and telephone booths. The opposite extreme of unregulated and unplanned over-development of American urban and sub- urban spaces represents the dark face of liberty: the sprawl and illegibility that is the unavoidable result of unregulated, unmanaged growth." The late Senator Joseph McCarthy would have more merit today. Chabot chaired a Congressional subcommittee oversight hearing March 7. Although "oversight" simply means the subcommittee oversees federal-agency activity, the other connotation of the word "oversight" ominously indicates the sinister stealth with which APA has carefully concocted its plan over the past seven years. In his introductory statements, Chabot observed, "In exercising its oversight role, Congress should be especially vigilant when the executive branch contracts out to potentially interested parties the job of drafting legislative proposals." And although Chabot rightfully worries about the Guidebook's impact on the hallowed American institution of private property, he's even more concerned about the biased input used to create the Guidebook. In acknowledging opposition to the Guidebook -- groups that represent land owners, small businesses and manufacturers -- Chabot reports, "Such organizations point out that only one representative of the regulated community, compared to 29 other representatives representing the regulating community, was allowed to serve on the directorate that engaged in the official deliberations that resulted in the Guidebook [emphasis added]." The U.S. Dept. of Housing and Urban Development (HUD) is indirectly responsible, for it provided the funds for this APA endeavor. And in the APA's acknowledgements in the Guidebook, more than a dozen HUD officials are individually thanked. Essentially, HUD has chosen to look the other way. In a March 18 C-Span interview, HUD Secretary Mel Martinez said, "What we have done is make it very clear that this is not something that has our endorsement. This is not something we have done. It does not have the imprimatur of the federal government. It does not have any sort of guidelines, and there'll be no coercion for states or localities to adopt it. It's simply a project that has been out there a long, long time, and many people urged me to kill it. Frankly, I didn't have that option." Chabot said, "HUD could have disapproved the Guidebook if its methodology or analysis were found faulty, but HUD did not so disapprove. HUD also did not exercise its right to have dissenting views attached to the Guidebook." Chabot continued, "As a former local official...I have serious concerns about this approach. The Guidebook expressly authorizes local governments to regulate the location, period of display, size, height, spacing, movement and aesthetic features of signs, including the locations at which signs may or may not be placed. These provisions in part take aim at on-premise signs that identify a place of business or advertise the product or services available, allowing government, after a period of time, to force the removal of signs from a business. This raises the unsettling and possibly unconstitutional possibility that small businesses, who frequently depend on signs for their livelihood, would have no right to tell people that they even exist." Chabot also questions the eradication of local control: "Under the legislation proposed in the Guidebook, local governments would be required to write plans that follow state goals, even if the local residents do not agree with those goals and plans." Testifying before the subcommittee were: * Dr. R. James Claus, executive director of the Signage Foundation for Communication Excellence, which signed a contract with the APA six years ago for a research project. Subsequently, the Signage Foundation has filed a lawsuit against the APA for breach of contract. * Geoffrey Hymans, the senior counsel to the Republican Caucus of the Washington State House of Representatives * Harry Alford, president and CEO of the National Black Chamber of Commerce, Inc. * Robert Manley, the Cincinnati attorney who represented the APA and, specifically, Stuart Meck, the principal author of the Guidebook. Claus' testimony stated that the Guidebook "introduces a police-power mentality that censors our speech and retroactively takes business and property without compensation. Due process of law is nothing but a charade under this, where you appear in front of a planner, and he tells you, 'I'm taking your property for the public good.'" The APA Website includes an overview of the Guidebook. The first sentence says, "States and their local governments now have new practical tools available to help combat urban sprawl, protect farmland, promote affordable housing and encourage development (emphasis added)." In written testimony, Hymans reported that the State of Washington has suffered under a "state-mandated growth-management regime" for 10 years. For that state, the result has been: * Increased congestion in our urban areas; * Increased housing costs, particularly in urban areas; * Decreased economic development in rural areas; and * An ever-increasing amount of regulation by both the state and local governments, not to mention huge expenditures required by such regulation. Hymans wrote: "Between 1990 and 2000, the median house price in Washington increased by 41.6%, placing Washington 46th out of 50 states in terms of the change in affordability. A different measure, comparing the ratio of the median house price to median income, placed Washington 49th out of 51 [including Washington, D.C.] in terms of the change in affordability by the change in this ratio from 1990 to 2000." A study by the Washington State University's Center for Real Estate Research discovered "a significant 35.5% increase in residential lot prices market-wide resulting from implementation of the Growth Management Act [GMA] in Clark County. A similar 38.7% increase is shown for residential lots located within the urban growth area." A second study by the university, which examined housing affordability instead of lot price, had the following central finding: The study reveals a 15.97% adverse, real-price, resale-home-affordability effect in Clark County as of the end of 1997. This means that the typical resale home sold for $19,749 more than it would have in 1997, absent the measured GMA effect (measured in 1992 dollars). In his oral testimony, Hymans said Jefferson County, with its 25,000 population, "has spent $3 million and counting on its GMA implementation." Before the Senate, Gary Garczynski, 2002 president of the National Assn. of Home Builders (NAHB), testified that S. 975 requires the Secretary of Commerce "to favor grant applicants which include 'approaches to land-use planning that are consistent with established, professional, land-use planning standards.' Simply, this provision uses federal dollars to incentivize state legislatures to adopt professional planning standards." He adds that the Guidebook "appears to facilitate the adoption of the model statutes...NAHB cannot support legislation that could be construed to impose a federal model for land-use planning on local governments." The only growth has been the subsequent need for planners to write and administrate such damaging programs in what Claus sees as a joint effort of "the APA and set governmental activists." The ultimate irony, and it would be incredibly funny if it weren't so tragic, was Manley's oral argument that "many planning decisions or zoning decisions are based upon cronyism, prejudice and political popularity." As a graduate of Harvard Law School, surely he's smart enough to know that he perfectly described the APA agenda. Amazingly, Manley also praised the Guidebook as "an encyclopedic discussion of the problems and options for solutions," which he states has resulted "as a demand from a wide spectrum of the public at large." The just-compensation components of the Fifth Amendment are glaringly and appallingly conspicuous in their absence. Instead, the Guidebook offers procedural strategies for circumventing just compensation, i.e., by prescribing alternatives to eminent domain, which requries just compensation. If the Guidebook truly reflects the will of the American people, a Eugene Debs is destined for the U.S. Presidency. Blatant deception is part of the APA's modus operandi. In the past few years, Noel Yarger, president of the Signage Foundation for Communication Excellence, specifically asked APA if the proposed Smart Growth program would impact signage. The response was "no." Kirk Brimley, ISA's legislative representative on the steering committee for the APA/Signage Foundation project, said there was no question that APA hid information from the Foundation. In a March 7 press release, the APA stated that Manley testified on its behalf "to dispel misconceptions advanced by critics" of the Guidebook. That might have been his objective, but clearly not the result. In the question-and-answer session after each witness presented testimony, Rep. Mary Hart (R-PA) concluded, "So if your local governments make a determination about their plan, there's always somebody at the state level who can basically tear it apart." Then, Meck, author of the Guidebook, completely reverses most of the tenets he wrote into the Guidebook by saying, "The hearing boards are a serious flaw in the Washington system, which is why we didn't include them in the Legislative Guidebook. In essence, what the hearing boards are doing is making policy on an ad-hoc basis." Decide for yourself what Meck truly believes when you read the accompanying sidebar, specifically the references to pages 9-31 to 9-35. If the Guidebook is widely distributed, Meck's name could be linked with that of another devious Cincinnatian, Charles Keating, of S&L infamy. He could wreak equally extensive financial havoc with similiar moral turpitude. Meck, by the way, was asked by ST for a photo of the cover of the Guidebook. Perhaps ignorant of the Freedom of Information Act and the fact that he was paid with federal money, Meck embodied APA arrogance in replying, "If you interview me, then I'll give you the image. If you don't, I probably won't." The Guidebook is very liberal in its suggested use of moratoria. Specifically, in the eighth chapter, entitled "Local Land Development Regulation," no meaningful time limits are placed on moratoria, meaning that people can indefinitely be deprived of their use of their property for any capricious reason. However, moratoria are not permitted in communities that adopt the smart-growth plan. But again, there's no advocacy here, APA asserts. Alford directly represents 85,000 black-owned U.S. businesses. In his view, the Guidebook would "make the United States one big zoning ordinance law. There is precedence to this, sir. It was done in the Soviet Union." In his oral testimony, Alford wonders what would become of the myriad ethnic business districts in the United States under the Guidebook auspices: the Chinatowns, the Sweet Auburn district in Atlanta, the Little Italys, the Hispanic bodegas. He cited the rigid zoning in Indianapolis, the liberal zoning in Washington, D.C. and zoning-free Houston, and said, "They all work. It all depends on the area. The decisions should be made locally. It's not up to the state, nor the federal government. They want to wrap it up into one, march-in-step-to-the-single-beat of the commissar...They want to cure our problem. What problem?" In a November 19, 2001 letter to HUD Secretary Mel Martinez, 21 Congressional members wrote, "Specifically, many provisions in the Legislative Guidebook would trample the rights of private property owners by seizing their land without the just compensation that our Constitution requires." Indeed, the social and economic ramifications of the Guidebook are so pervasive and intrusive that this coverage here is but a tip of the iceberg. The double-talk and purposeful deception, including the six-year lie that began with the APA's contract with the Signage Foundation for Communication Excellence for a research project, are so unbelievable, that all of America should be outraged. Legislative Guidebook ExcerptsHere are some of the more onerous examples of ambiguous language in the Smart Growth Legislative Guidebook. By their lack of concrete definitions, many of these passages could conceivably bestow unilateral power of law and its interpretation to groups of people, and even individuals, who are neither elected nor have judicial qualifications. For the sign industry, the damnable Chapter 9 is entitled "Special and Environmental Land Development Regulations and Land-Use Incentives." Its perilously obtuse language discusses the use of historic landmarks, design review and transfer of development rights (TDRs). Page 9-29: The Section provides the option to adopting state legislatures to authorize the regulation of publicly accessible interiors as well as the exterior features of buildings...Examples of states specifically authorizing the regulation of interiors include...North Carolina. This section casually implies that it's a logical extension for exterior sign codes to penetrate the interior of any retail business in the United States. Only in the footnote does the Guidebook tell the truth, that North Carolina's regulations only apply with the landowner's consent. Page 9-31: "Historic district" means a geographically definable area possessing a significant concentration, linkage, or continuity of sites, buildings, structures, or objects united by past events or aesthetically by physical development. The past includes yesterday. Every structure within any community could be considered "united by past events." Wouldn't the use of concrete or steel clump together buildings as "objects united aesthetically by physical development?" In other words, is there any district that clearly would not possibly qualify as an historic district? Page 9-31: "Historic landmark" means an individual property of historical, architectural, archaeological or cultural interest. "Cultural" means "of or pertaining to culture." My dictionary defines culture as "the totality of socially transmitted behavior patterns, arts, beliefs, institutions, and all other products of human work and thought characteristic of a community or population." Again, absolutely every physical aspect of every community is part of that community's culture. So absolutely every physical component of any community could be defined as an historic landmark, and a lone individual, unelected by the people and unfettered by the prerequisite of any specific qualifications, could be the decision-maker. The requirement for a design review board or historic preservation board only stipulates that "at least one member...shall have expertise or training in history, architecture, architectural history, archaeology or land-use planning." One would assume that most adults took some history classes in high school or college. Page 9-31: "Historic preservation board" means any officer or body designated by the legislative body to review applications for and issue a certificate of appropriateness for...all or specified proposed development in a historic district or of a historic landmark. If, as seen above, virtually any area could be designated as a historic district, then, a single person could be given the power to determine "appropriateness." Obviously, there's no danger here of the "cronyism, prejudice and political popularity" that APA Attorney Robert Manley so benevolently outlined as a justification for the Guidebook. Does he really think Congress is so ignorant of post-Civil War carpetbaggers to fall for such tripe? Page 9-34: Design guidelines shall be prepared by the historic preservation board and/or design review board. In a worst-case scenario, the appropriateness of the exterior and interior of any retail establishment in any community could be determined by a group of people or a single person with no more qualifications than an unspecified amount of training in one of several fields. Page 9-35: A historic preservation board or design review board...may prohibit or deny permission for development even though that development may be necessary for a permitted land use. A person could buy a piece of property in a commercial district and then be denied his right to build a restaurant, because someone doesn't like it. Nearly 50 pages of Chapter 9 concern TDRs, which are essentially presented as the preferred method of avoiding just compensation. They outline pseudo-justifications for taking away property and, in many cases, allowing this property to be given to nonprofit organizations, who can use this leverage to strongly encourage contributions. Many of the excerpts are lengthy, so they are abridged here. Page 9-37: In TDR programs, a local or regional government that wishes to preserve land in an undeveloped or less-developed state may do so without payment of cash compensation if it is willing to accept higher densities or more intensive uses elsewhere. Page 9-60: The sending parcel shall be the servient estate and the local government shall be the holder of the easement, and the local government may specify one or more nonprofit organizations to be additional holders of the easement. So it's probably just coincidence that the National Trust for Historic Preservation, the Defenders of Wildlife, the Natural Resources Defense Counsel, the National Wildlife Federation, Scenic America, the Sierra Club, etc. helped draft the Guidebook. Page 9-62: The local government can create a TDR Bank which shall have the power to recommend to the local legislative body properties where the local government should acquire development rights by condemnation. This is similar to eminent domain, except, in eminent domain cases, just compensation must be paid. So, to nearly circumvent just compensation, APA commentary advises: "If the local government itself does not have the power under state eminent domain enabling statute to condemn development rights or a conservation easement, that statute must be amended to give the local government that power, so that it can then be delegated pursuant to this paragraph."