Home Sustainable Land Development Today March 2005

Friend or Foe?

Written by Greg Yoko

Thursday, 31 March 2005

Government regulations shape the past, present, and future of land development. If there is one word that causes professionals in the land development industry to wince, it is “regulation.” Are regulations always as bad as the reputation that precedes them? From what most builders, developers, and engineers have to say, it isn’t so much the concept of the regulations that causes the difficulty as it is the minutiae in the prescribed and approved solutions to meeting the regulations that cause the most headaches. Regulatory impacts on the land development industry are typically presented in the form of ordinances, codes, statutes, or policies. To provide a foundation for elaborating on a number of regulations, we should first define the terms. Statutes are laws enacted by the legislative branch of either the state or federal government. They are formally enacted by Congress or a state legislative body. An ordinance is an authoritative decree or direction established by law, typically through a local or municipal governmental authority. Codes are typically a systematic statement of a body of law with statutory force and are comprised of applicable statutes and ordinances. For instance, they are a collection of laws that have been categorized by subject matter to create a system of principles or rules within a governmental constituency (e.g., city, county). In some cases, statutes, ordinances, and codes are relatively easy to understand - initially. And, while of little consolation to developers, even government entities can become frustrated by each other’s regulations. For instance, Charlie Crist, the attorney general of Florida, ruled in September 2004 that the Hernando County School Board is required to comply with Hernando County land development ordinances relating to such matters as zoning and landscaping as defined in the county’s comprehensive land-use plan adopted pursuant to the Florida Local Government Comprehensive Planning Act and ordinances adopted to implement the plan. With federal, state, county, local, and even school board officials getting involved on the same issues, land development quickly becomes a convoluted web of sometimes conflicting regulations. Devil in the Details Regulations serve dual purposes. In addition to providing order and consistency, they are meant to mediate the interests of society. Many argue that regulations go too far, while others will claim they do not go far enough. Nowhere is this more evident than in the land development industry. In the United States, an individual’s unique right to own property is a highly valued benefit of freedom and liberty. Likewise, one of the primary purposes of the U.S. government—to protect its public—is a tenet of the country’s constitutional obligation. However, these two ideals, when combined, form the initiation and crux of virtually every land development regulation. While the purpose and motivation for the initiation, creation, and basic acceptance of regulations can be debated, the main point of each is usually clear. However, it usually isn’t the laws that cause the problem, it is the interpretation, enforcement, and policies that are established after enactment that create the confusion and frustration. Whether looking at the federal regulations or local zoning ordinances, most can originally agree that the laws have a generally understandable purpose. For instance, the city of Ann Arbor, Michigan states that the purpose of its land development regulations “is to specify procedures by which petitioners obtain approval of proposed developments and to specify certain materials which must be prepared and submitted to assist the City in determining if the proposed development is in compliance with local ordinance, state and federal statutes, and these regulations. The Planning Director, with the approval of the City Planning Commission, may modify the petition requirements when all necessary information is provided.” However, understanding the specifics and acceptable compliance methods are another matter. Looking To Do a Little Light Reading? One of the biggest regulatory obstacles for participants in the land development industry is the 1999 revision of the Clean Water Act for the National Pollutant Discharge Elimination System (NPDES) that resulted in the implementation and enforcement of Phase II requirements in 2003. The U.S. Environmental Protection Agency (EPA) published the regulation entitled “National Pollutant Discharge Elimination System - Regulations for Revision of the Water Pollution Control Program Addressing Storm Water Discharges” on December 8, 1999. It takes 97 pages just to explain whether you are subject to the regulation and what to do if you are required to comply. To help clarify things, in July 2004 the EPA prepared a Local Limits Development Guidance document to assist municipalities that own or operate publicly owned treatment works (POTWs) in developing and implementing local pretreatment programs. It consists of 134 pages. So, here it is, March 2005, and professionals in the industry are almost as conflicted now as they were in 1999 when they heard about the impending regulations. “We have a difficult time obtaining upto-date answers to our questions from engineers and consultants because there are so many interpretations and we work in a number of communities,” relates Casey McKinley, P.E., Land Development Engineer with DiYanni Homes (Reynoldsburg, OH). “So, we go directly to the Ohio Environmental Protection Agency.” DiYanni Homes, which expects to close on about 300 homes throughout Central Ohio in 2005, plucked McKinley from the engineering community. “It is a new position for the company,” explains McKinley. “It is a direct result of our growth, and part of my role is to make sure we do the right things to comply with the development regulations. We have found that many consultants and contractors, are still behind the times on education when it comes to staying in compliance with NPDES Phase II regulations, especially during construction and the required monitoring and inspections.” McKinley states that his company now prepares a stormwater pollution prevention plan and installs a temporary stormwater diversion and sediment basin at the start of virtually every construction project. One of the biggest challenges for DiYanni Homes and other developers in Ohio is the planning and implementation needed to meet post construction runoff quality limitations as required by the State of Ohio. Following is a passage from the Ohio EPA permit statute: For all construction activities involving the disturbance of five or more acres of land or will disturb less than five acres, but is a part of a larger common plan of development or sale which will disturb five or more acres of land, the post construction BMP(s) chosen must be able to detain storm water runoff for protection of the stream channels, stream erosion control, and improved water quality. Structural (designed) post-construction storm water treatment practices shall be incorporated into the permanent drainage system for the site. The BMP(s) chosen must be sized to treat the water quality volume (WQv) and ensure compliance with Ohio’s Water Quality Standards in OAC Chapter 3745-1. The WQv shall be equivalent to the volume of runoff from a 0.75-inch rainfall and shall be determined according to one of two methods.  “This tends to be the area that causes the most difficulty for developers around central Ohio,” says Harry Kallipolitis, environmentalist specialist with the Ohio EPA’s Division of Surface Water. “This regulation is still relatively new (adopted in April 2003), but we continue to work closely with area consultants, developers, and engineers to assist them in compliance.” According to Kallipolitis, adaptation of originally designed detention and retention ponds is still the typical mitigation method. He did mention that some progressive developers are starting to utilize modern solutions like porous pavements to minimize impervious surfaces, especially in areas of redevelopment. Location, Location, Location As illustrated, requirements often differ on a state-by-state basis. The situation typically gets even more confusing at the local level. In South Carolina, Charleston County’s Zoning and Land Development Regulations (ZLDR) comprise nearly 400 pages. According to the county Web site, “the Zoning and Land Development Regulations, formerly the Unified Development Ordinance, serves as the enforcement mechanism for the Council-approved Comprehensive Plan. The Comprehensive Plan and ZLDR, both required by state law, are currently being reviewed for possible updates.” Updates and adjustments to regulations are a challenge. It is a challenge that local municipalities and governments monitor regularly. It is also the reason that most successful land development professionals build relationships with local government officials. “Water issues are big—stormwater and wastewater especially,” relates Stan Ebel, land development construction manager with Centex Homes (Visalia, CA). “We rely heavily on our engineering partner, Quad Knopf, to guide us through the regulatory maze.” In turn, both Centex project managers and Quad Knopf engineers work closely with the various government regulatory bodies. “There is a real need to establish a comprehensive stormwater management plan,” explains Mike Knopf, P.E., Principal. “Generally speaking, large builders have a sense of what needs to be done and they make sure that the correct steps are taken. They have to be diligent because there is a big target on their back. However, some small and medium builders need to be reminded that they have a very large window of exposure due to the many enforcement opportunities throughout the entire construction process, from initial permitting through post-construction management plans.” Working closely with officials at the local level is vital for many reasons, but ultimately, these officials authorize and issue the various permits needed to initiate the development process. And, in the strange world of local politics, working with is always easier than working against. To help ensure that its clients meet the needs of community leaders and regulators, Quad Knopf has developed a digital solution to make it easier for builders and regulators to communicate. “Through the creation of a process utilizing cutting-edge technology, we have created a wireless web-based methodology for automated recordkeeping, documentation, and reporting,” explains Knopf. By working with other technology partners like ESRI and CarteGraph Systems we enable our clients to maintain, update, and access up-to-date information through the use of GIS tools via web access. “The regulatory community is accepting these changes and partnering with us on the use of these technologies,” Knopf reveals. “They can access the data that they need to review more easily. Having the data available to regulators whenever they want it certainly helps them and our clients benefit by eliminating the need to hunt and search for records and strongly demonstrates a builder’s intent to comply with regulatory requirements.” Movers and Shakers While it is government officials, namely the U.S. Congress, state legislators, and local elected officials who enact these regulations, it is political pressure from a number of areas that serves as motivation for their creation. Of course, there are a number of organized anti-growth groups on a national and regional level, in addition to grass-roots and “not-in-my-back-yard” (NIMBY) opponents, that impact some legislation, but the majority are the result of environmental concerns, both real and imagined. The challenge for land development professionals is to temper some of the radical ideas without disregarding many of the legitimate concerns. Clarifying the Clutter Many organizations, such as the American Planning Association (APA), American Road and Transportation Builders Association (ARTBA), National Association of Home Builders (NAHB), and Land Development Today, serve its constituents by attempting to educate participants, citizens, and elected officials by providing a clear view of the responsibilities and consequences of both action and inaction. Based on the APA’s adopted legislative priorities in 2004, 10 items led its agenda for the 108th Congress to promote smart growth and livability in the nation’s communities. A recent survey found that 78 percent of voters believe it is important for Congress to help communities solve problems associated with urban growth and land use. Last year the APA called on Congress to take steps to help make great communities happen. Due to Congress’ inactivity last year, as well as the presidential election, unfortunately many of APA’s legislative initiatives from last year remain unresolved. Among them is the APA’s support for the reauthorization of the nation’s transportation laws (TEA-21), fully funding and initiating new programs for brownfield development, and passing a comprehensive energy plan to encourage conservation and efficiency. With President George W. Bush’s recent budget proposal, it will be a challenge to have any of these laws and initiatives acted upon once again. Meanwhile, the NAHB, acknowledging that “the development industry faces increasing challenges in these times of expanding and conflicting regulations, lengthy and confusing approval processes across different levels of government, and vastly differing notions about where, when, and how development will be allowed to proceed” provides assistance with printed and online material to its members. In late January, the ARTBA told the U.S. Environmental Protection Agency (EPA) it should not proceed with a proposal to allow project-specific analysis for determining transportation compliance with the federal Clean Air Act. The EPA proposal, ARTBA said, would run counter to the current administration’s emphasis on environmental streamlining in order to speed up the review process for transportation projects. The ARTBA also cited the EPA’s own data showing a dramatic 30 percent reduction in particulate matter over the past 25 years without the proposal. Of course, Land Development Today intends to consistently provide land development professionals with information, news and perspective about the regulatory environment through the content provided within the magazine as well as through its numerous local and regional workshops and bi-annual national conferences. With interest rates low and the economy growing, increased development activity has overwhelmed most permitting agencies. Staffing shortages have created a situation where many developments never see an enforcement or inspection official. In fact, it is acknowledged in most areas that enforcement is in a reactive pattern, meaning that officials will only visit a site following a complaint or inquiry. In the end, the complex regulatory environment makes the need for extensive collaboration among the various professionals involved in any project more important than ever. Bringing government officials - and even affected local citizens - onboard as a part of the project team at an earlier stage in the process than is typical today will help maximize a project’s chances for success. And collectively, it will help improve our public image in today’s more demanding society. SLDT