Implementation of New York’s Smart Growth Law
New York Law Journal
In their Domestic Environmental Law column, Christine A. Fazio and Ethan I. Strell of Carter Ledyard & Milburn discuss smart growth, which essentially means siting development in compact, energy efficient centers in order to preserve farmland and open space, provide transportation options other than automobiles, and reduce regional air pollution; and New York’s smart growth law as compared to others across the country.
Last September, the New York State Smart Growth Public Infrastructure Policy Act became effective. This new law prohibits all “state infrastructure agencies” from approving, undertaking, supporting, or financing a “public infrastructure project” unless the project is consistent with 10 smart growth criteria to the extent practicable. This column discusses the New York law in the context of similar laws in the United States, and also suggests compliance strategies for New York state agencies to comply with the law.
“Smart growth” encompasses many goals and factors, but essentially means siting development in compact, energy efficient centers in order to preserve farmland and open space, provide local residents transportation options other than automobiles, and reduce regional air pollution. According to the New York Department of State (DOS), existing development patterns are consuming farmland at an alarming rate without providing commensurate economic growth. This “sprawl without growth” resulted in a 30 percent increase in developed land with only a 2.6 percent increase in population between 1982 and 1997.
Wasteful development patterns are evident in both urban and rural areas upstate and downstate. For instance, many urban and industrial areas of the state’s upstate towns and cities have grown impoverished and neglected, while new but unsold single family subdivisions have bulldozed farmland miles from downtowns without providing adequate transportation infrastructure to support new residents in those recently rural communities.
The Smart Growth Act only applies to “state infrastructure agencies,” which includes, all “New York authorities.” It does not apply to municipalities or counties, which are the entities that actually regulate land use, nor does it mandate particular changes, so it is unclear how this legislation will truly address sprawl. However, DOS and other state agencies do manage a number of smart growth-related grant programs, including grants for agriculture, “main street” revitalization, energy efficiency, transportation, and other areas.
Smart Growth in America
Smart growth legislation dates back over 30 years beginning in 1973, when Oregon enacted its Land Conservation and Development Act. Hawaii and Florida soon followed suit. In 1997, Maryland adopted the Smart Growth Areas Act (SGAA), which has served as the prototype for other recent smart growth laws.
Through SGAA, Maryland sought to preserve open space and farmland and contain sprawl through state spending. Specifically, SGAA restricted state funding for growth to “Priority Funding Areas,” which are developed areas that have access to public services. Priority funding areas are locally determined pursuant to state criteria. The law was initially heralded as brilliant legislation which would halt the spread of sprawl while simultaneously allowing local government to keep control over growth and development. Following Maryland’s example, other states, such as Georgia, Massachusetts, and New Jersey, enacted their own versions of SGAA.
Over a decade has passed since Maryland’s adoption of SGAA and evaluations of its effectiveness have proven disappointing to smart growth proponents. Studies by the University of Maryland’s National Center for Smart Growth Research and Environment Maryland (a citizen-based environmental advocacy group) concluded that sprawl has hardly been affected since the enactment of SGAA. For example, development of single-family housing outside priority funding areas has continued to increase since 1997. Car ownership, traffic congestion, and the miles travelled by vehicles have also increased since SGAA’s enactment.
Both studies point to SGAA’s weak, or non-existent, enforcement mechanism as the main factor for the law’s unsatisfactory results. As the law currently stands, local governments do not face any repercussions for funding growth projects that do not comply with SGAA. Furthermore, local governments have great discretion to determine which areas qualify as priority funding areas. What follows is that local governments fail to pursue the state’s smart growth goals wholeheartedly, and instead succumb to local political and business pressures to allow sprawl to continue. In 2009, the Lincoln Institute of Land Policy evaluated smart growth policies in the United States. The report concluded that smart growth policies nationwide have shown modest results in curbing sprawl.
The region encompassing Portland, Ore., has the most aggressive smart growth law in the United States. Under Oregon law, each city or metropolitan area has an urban growth boundary. Portland’s law, enacted regionally by Metro—a regional government encompassing 25 cities and three counties—establishes a boundary beyond which no urban development is allowed. The Metro Portland boundary is evaluated periodically and expanded based on the region’s needs. Because New York’s law is based on the ineffective Maryland law, perhaps New York should evaluate whether elements of the Portland law would be appropriate for the New York metropolitan area.
Implementation in New York
Before going forward with a “public infrastructure project,” the New York act requires the CEO of a covered agency to attest in a “smart growth impact statement” that the project meets the smart growth criteria “to the extent practicable.” The act is drafted broadly and does not define what a “public infrastructure project” is, nor does it provide guidance on how to determine whether an action is consistent with the smart growth criteria. The act also requires covered agencies to create a “smart growth advisory committee” to advise the agency on compliance with the act.
DOS has indicated that it is in the process of drafting guidance for agencies, but it is not clear when the guidance will be released. No regulations are contemplated at this time. Individual agencies may also draft their own internal guidance as well. One document by the New York State Department of Transportation outlining procedures for consultation with public officials in rural areas states that DOT will develop smart growth guidance, but that the Smart Growth Act does not change the procedures established by the DOT regional offices for public consultation. The agency “intends to integrate the requirements of the act into existing project development processes.”
Since this is a new statute and there are no established procedures for compliance, what should agencies do now? The act requires two mandatory actions by agencies: (1) establishing a smart growth committee and (2) the agency’s CEO attesting to various projects’ compliance with the smart growth criteria.
The act does not specify the size or composition of the smart growth committee, but since the committee’s purpose is to advise on compliance with the smart growth criteria, the committee should include relevant legal, environmental, planning, community outreach, technical, and business staff. The committee should meet regularly, advise the agency on overall policy and on the implementation of individual projects, and keep minutes of its meetings. The committee should also be involved in outreach to communities affected by the agency’s actions.
While the act does not explain how an agency’s CEO must attest to the agency’s compliance with the smart growth criteria, we would suggest the following long-term and short-term strategies, as described more fully below. In the long term, a reasonable approach would be for agencies to incorporate the smart growth criteria into the agency’s planning documents, and, in the short term, to evaluate each project’s compliance on a project-by-project basis, using a standardized form containing the smart growth criteria.
Because many agency projects concern “public infrastructure,” complying with the act for each project is burdensome. Moreover, attempting to comply with the law project-by-project will be less effective at actually furthering smart growth than including smart growth in the agency’s longer term planning and budgetary processes. The smart growth advisory committee should be involved in the drafting of planning documents, which is why it is important that various agency departments are represented on the committee. Also, since the act anticipates public and community outreach, agencies should seek community input in developing their planning documents. If the general planning documents sufficiently consider compliance with the smart growth criteria for generic categories of projects, then the agency’s CEO, upon advice by the smart growth committee, should be able to attest that the project meets the relevant criteria, to the extent practicable.
For individual projects that are not yet considered in longer range plans, we would suggest providing a brief evaluation of each project’s consistency with the smart growth criteria in accordance with a standardized form that would include all of the smart growth criteria and various check boxes to indicate whether the project is approved or disapproved and consistent or inconsistent. If the project also is subject to environmental review under the New York State Environmental Quality Review Act, the form could be an attachment to the environmental assessment or environmental impact statement.
It remains to be seen whether New York state’s smart growth policies—which include the Smart Growth Public Infrastructure Policy Act and other state policies and grant programs—will have any effect on sprawl. While the act may prove useful in making state agencies stop and think about smart growth before approving individual projects, the act’s focus on state agencies rather than municipalities, counties, or regions; its lack of enforcement mechanisms; and its apparent intent to foreclose litigation over its implementation suggests that the law will have little effect on development patterns in New York, as has been the case in other states with similar programs.
Christine A. Fazio is a partner and Ethan I. Strell an associate in the environmental practice group at Carter Ledyard & Milburn. Hugo E. Arenas, a summer associate with the firm, assisted in the preparation of this column.
This article is reprinted with permission from the June 23, 2011 issue of the New York Law Journal ©2011 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.
 ECL §§6-0101 through 6-0111.
 The act specifically mentions the state Departments of Transportation, Education, Health, State, and Housing Finance, the Environmental Facilities Corporation, Housing Trust Fund Corporation, Dormitory Authority, Thruway Authority, Port Authority of New York and New Jersey, and Empire State Development Corporation. ECL §6-0103(2).
 Jason Sartori et al., Nat’l Ctr. for Smart Growth Research and Educ. at the Univ. of Md., Indicators of Smart Growth in Maryland (2011).
 Gregory K. Ingram et al., Lincoln Inst. of Land Policy, Smart Growth Policies: An Evaluation of Programs and Outcomes (2009).
 See Metro, “Urban Growth Boundary,” http://www.oregonmetro.gov/index.cfm/go/by.web/id=277.
 The smart growth criteria are found at ECL §6-0107(2).
 Section 6-0109 provides that the covered agency shall “solicit input from and consult with various representatives of affected communities and organizations within those communities, and shall give consideration to the local and environmental interests affected by the activities of the agency or projects planned, approved or financed through such agency.”