F. Gary Garczynski, President
National Association of Home Builders
Before the United States Senate
Committee on Environment and Public Works
S. 975, The Community Character Act
S. 1079, The Brownfield Site Redevelopment Assistance Act
March 6, 2002
Chairman Jeffords and members of the Environment and Public Works Committee, I am pleased to appear before you today to share the views of the National Association of Home Builders concerning S. 975, the Community Character Act of 2001. My name is Gary Garczynski and I am the 2002 President of the National Association of Home Builders. I am a homebuilder and developer from Woodbridge, Virginia, and much of my business focuses on redevelopment of urban areas and the inner ring of older suburbs. I am a past president of the Northern Virginia Transportation Alliance and a founder of the Greater Washington Region Smart Growth Alliance.
While we appreciate the efforts of this committee to address growth issues, NAHB is opposed to the Community Character Act. This country will continue to grow and NAHB has been working for years on how to grow “smart.” An emerging issue that goes hand in hand with smart growth is population pressure. Projections based on U.S. Census data show that the population segment between 25 to 64, the population segment that accounts for the most household formation, will increase by about 1.4 million per year over the next ten years. Although every state will add people in this segment, the states of California, Florida, Georgia, North Carolina, Texas and Washington will account for half of the population growth. With the addition of approximately 800,000 immigrants per year, the number of households will increase about 1.3 million per year for the next ten years. To satisfy this demand, and demand for the replacement of lost housing stock, home builders will have to provide approximately 1.6 million new homes a year. The option to halt future growth as a means of controlling present frustrations is unrealistic.
In an effort to address the short-term pressures of growth, the Community Character Act of 2001 provides funding incentives for federal and state agencies to work together toward implementing state land use plans. Although the legislation acknowledges that land use planning is within the rightful jurisdiction of the state and local governments, there are a number of alarming elements found in the bill. There have been some modifications to the bill from its original form in the 106th Congress, such as the recognition of the need for a range of housing choices in land use planning. However, S. 975, taken in its totality, remains prescriptive and intrusive in character and for this reason unacceptable to the home building community.
NAHB’s overall concern and objection to S. 975 is based upon an unwarranted federal intrusion into the state and local land use process. Further, there is insufficient emphasis on the critical and appropriate role of local government in land use decisions. S. 975 emphasizes state land use plans, not just state support for local land use planning. This legislation implies that all planning should take place on a state or tribal government level, which is a top down approach to planning, and negates the critical role of local jurisdictions in planning, regulating and managing land resources. NAHB believes there needs to be adequate and improved coordination with local plans on all levels.
The Community Character Act authorizes the Secretary of Commerce, acting through the Assistant Secretary of Commerce for Economic Development, to create a federal grant program to incentivize the updating of state land use planning. The legislation presumes that the Secretary of Commerce, and the federal government, has a better idea of the source of nationwide development pressures and the best way to solve those problems. NAHB strongly believes that local citizens and local governments are the best arbiters for what is the appropriate design for local land use plans. As a builder, I work on a day-to-day basis with local and state officials and community groups to plan development in a responsible and thoughtful manner.
Section 4(a)(3) of the Community Character Act authorizes the Secretary of Commerce to give preference to a state that has “inadequate or outmoded land use planning legislation” and “is experiencing significant growth.” Unfortunately, the Secretary is authorized to make a subjective judgement in an area where the Secretary can claim no special expertise. In an effort to award these grants, the Secretary would presumably establish a federal definition of what constitutes “inadequate or outmoded land use planning legislation” or a federal definition for “significant growth” and somehow apply those federal definitions to state and local situations. The Secretary of Commerce can claim no particular expertise in the determination of “significant growth” when comparing two or more areas of the country.
Additionally, under Section 4(a)(3), the Secretary is required by the legislation to give favor to a state that will develop or revise their land use plan “consistent with updated land use planning legislation.” I am fearful that this language authorizes the federal government to develop “updated land use planning legislation.” Or perhaps the Secretary is authorized to endorse a particular state’s land use legislation as guidance. Authorizing the Secretary to use a particularly proactive state’s land use legislation as a standard that embodies the concept of “updated” could lead to the federal endorsement of some land use plans that are both onerous and an ill-fit for other states. But, because of the allure of federal money, states might be inclined to overlook the negative aspects of these onerous plans.
NAHB is pleased that S.975 recognizes the need for a “range of affordable housing options” in any smart growth plan (Section 4(b)(1)(F)). Certainly, housing affordability should be one of the goals of any local government. As we have seen in many areas of the country, economic prosperity and job creation are often not accompanied by affordable housing opportunities. Without the availability of decent, affordable housing and the ability for citizens to live where they work, citizens are forced into longer commuting times and longer distances from goods and services.
Of particular concern to NAHB is the condition of grant eligibility found in Section 4(b)(6). Under this section, the Secretary of Commerce is required 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. While there are certainly many differing professional planning standards, given the very recent release of the American Planning Association’s Growing Smart Legislative Guidebook, S.975 appears to facilitate the adoption of the model statutes contained in the Legislative Guidebook. NAHB cannot support legislation that could be construed to impose a federal model for land use planning on local governments. NAHB believes that the best way to promote “community character” is to let the community determine its own land use policies.
Another point of concern is the use of grant funds in the legislation. Specifically, Section 4(c)(1)(D) authorizes grant funding for the use of integrating “State, regional, tribal, or local land use plans with Federal land use plans.” This top-down approach that is promoted by S.975 concerns NAHB. If land use planning is “rightfully within the jurisdiction of State, tribal, and local government,” as Section 2(2) of the legislation states, the federal government should be integrating with state and local plans, not the other way around as encouraged by the legislation.
The legislation raises potential constitutional questions under the Tenth Amendment, where powers not expressly granted to the federal government in the Constitution--like zoning and land use decisions--are reserved to the states and local governments. Just over a year ago, in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001) ("SWANCC"), the Supreme Court demanded "heightened" scrutiny when statutes and regulations "alter the federal-state framework by permitting federal encroachment upon a traditional state power." In this regard, the Court ruled: "Regulation of land use [is] a function traditionally performed by local governments." By creating prescriptive criteria by which federal grant money is awarded for state land use planning, the Community Character Act has the potential to upset the federal-state balance that the Court cautioned against in SWANCC.
Finally, Section 5 of the bill authorizes $1 million a year for Economic Development Administration Technical Assistance. While the intent of Section 5 may be no more than the establishment of a Department of Commerce clearinghouse for planning ideas, the authority granted under this section underscores the federal government’s opportunity to influence local planning decisions. Under Section 5, the Secretary of Commerce is authorized to provide technical assistance to planning officials after consultation with a myriad of federal agencies: The Environmental Protection Agency; the Department of Transportation; the Department of Agriculture and any of the other federal agencies. And finally, the Secretary of Commerce is expected to consult with “non profit organizations that promote land use planning.” While there are many organizations who would qualify in this later category, it is logical to assume that the American Planning Association and the Legislative Guidebook could be the primary providers of the technical assistance and the information sharing promoted by the Commerce Department. Again, the federal government should not be in the business of promoting local land use planning.
The Community Character Act is an unnecessary interference by the federal government in traditionally and constitutionally protected rights of local governments. By offering federal dollars to state legislators who have concerns about the increasing pressures of growth, the Community Character Act rewards states for solving problems in the manner the federal government would like it solved. This legislation implies that Washington knows best when is comes to controlling development pressures.
Rather than authorizing money to promote the federalizing of the local land use process, I believe the government is best served by using its money to coordinate its own various land use authorities and the government’s often contradicting policies. Simply, local planners would be better served by the streamlining or improved cross-department coordination of the federal requirements and processes that contribute to the local and state land use plans. Our industry has struggled over the years with a myriad of overlapping regulations that inhibit responsible development.
Mr. Chairman, last year members of this committee, led by Senator Lincoln Chafee, spearheaded the passage and eventual enactment of federal brownfields legislation. While NAHB maintains that the brownfields legislation could have gone further to truly address the entire universe of brownfields sites in this country, the legislation was a good first step in returning brownfields sites to productive use. In fact, NAHB’s national smart growth policy recognizes the importance of brownfields redevelopment in the concept of smart growth.
I believe the new brownfields law represents the best avenue for future federal involvement in local planning. By removing the barriers to the clean up and redevelopment of brownfields, the federal government has given local governments another tool to effectively plan for and manage growth. I truly believe the best way for the federal government to aid in the management of growth is to reform federal laws which inhibit local communities from using all of their growth management tools and let local communities plan the best education, transportation, housing plan that reflects their unique needs.
Additionally, Senator Levin’s bill, S. 1079, the Brownfield Site Redevelopment Assistance Act of 2001, may further the ability of local communities to redevelop brownfield sites and return them to productive use. Grants provided under S. 1079 have the potential to complement the United States Environmental Protection Agency brownfields grant program recently enacted in the new brownfields law. However, I am concerned that grants under this program can be used for local planning and the criteria for awarding of those grants are subject to federal interpretation and therefor open to federal preferences for growth management.
Further, NAHB supports H.R. 2941, the Brownfields Redevelopment Enhancement Act of 2001. This legislation, sponsored by Representative Gary Miller of California and Representative Carolyn Maloney of New York, removes federal barriers to brownfields redevelopment funds. The bill would eliminate the current requirement for local communities to leverage Department of Housing and Urban Development (HUD) brownfields grants with Community Development Block Grants (CDBG) funds. This requirement has served to stall brownfields redevelopment because communities are reluctant to tie up these critical funds. H.R. 2941 will provide local communities with greater flexibility without federal prescriptions.
Another example of “smart growth” is looking at federal initiatives that target population needs and help revitalize and redevelop communities. In the coming months, Senators Kerry and Santorum plan to introduce a homeownership tax credit that provides tax credits for the development or substantial redevelopment of homes for low to moderate-income buyers in census tracts with median incomes up to eighty percent of the state median. This tax credit illustrates a positive federal role for the encouragement of smart growth.
Mr. Chairman, thank you for this opportunity to share the views of the National Association of Home Builders on this important issue. I look forward to any questions you of the members of the committee may have.