Conservation
and environmental protection are positive goals. Too
often it is believed that these goals cannot be
achieved without state intervention and government
regulation. Yet,
sometimes government regulation and obsession with
“rules” obscures our greater understanding of
achieving environmental “standards.” And, our
reliance on strict governmental development rules
obscures the fact that respect for private property
might not be inconsistent with these goals.
The Vineyards Estates project in Albemarle
County
is an excellent example of rules gone awry.
The
Vineyard’s Estates project is a development plan
that takes 511 acres in Virginia
and carefully plans its development between a select
number of homes mixed with orchards, forest land,
agriculture, and meadows.
All this with only 28 lots averaging 5.98
acres each -- 164 acres total -- devoted to
residential development lots. More than two-thirds of the project is
focused on protecting green, wooded, and
agricultural space.
Rules technically preclude this plan, yet a
special use permit that would allow it to go forward
has been requested.
From
an environmental “standards” based approach, the
Vineyard’s Estate plan sounds like responsible
development. It
meets the standard for environmental protection and
conservation. Here,
a developer is attempting to allow residency while
planning for current and long term aesthetic
pleasure of the environment.
Yet,
local regulators and environmental groups like the
Piedmont Environmental Council are using strict
“rules” to oppose the plan.
It’s a classic example of the use of rules
as a weapon to seek zero growth where there may be
balance.
Under
governing Albemarle
“rules”, lands within the Vineyard’s Estate
project could be divided into 30 lots of 21 acres by
right. The
Piedmont Environmental Council and others claim that
because the Vineyards Estates project fails to
follow this rule, it should be denied.
The
establishment of these rules may make sense as a
policy default, but it should not be determinative.
That is precisely why “special use”
permits – like those applied for by the Vineyard
Estates project – exist.
When something outside of the rule is less
dense and is actually more conservation-friendly, it
seems it should be approved.
Otherwise the rule swallows the goal.
The
Vineyard’s Estates plan significantly increases
the amount of green space beyond that required or
allowed by the rules.
It just does so in an innovative manner,
focusing on the standard of environmental
conservation rather than the default rules.
In fact, the Vineyard’s Estate proposal
would foster agricultural and forestry preservation,
and allow a low-density proposal to proceed.
Yet opponents use “rules” as an attempt
to block an otherwise environmentally friendly
proposal. Why?
The
rules versus standards debate pervades much of
environmental law. Whether
it be air pollution, water pollution, or
development, it is often better to set standards of
achievement or environmental goals and allow the
market to find the optimal means for reaching them.
In contrast, command and control rules are
more costly, stifle innovation, and constitute the
one size fits all approach that limits the
government’s ability to produce the results it
seeks.
Governments
can demand that industries develop specific
technologies to combat air pollution or they can
demand that industries meet a standard and allow the
market to develop and find innovative ways to
achieve pollution reduction.
Standards requirements allow the market to
find the most efficient, least costly means for
achieving society’s goals.
In contrast, commanding a specific rule –
whether it be to use a certain filtration system or
cut up lots into 21 acres – limits the ability of
the market to find ways to serve both consumer
preferences and community goals.
In terms of land use, a standards-based
approach allows for innovative private development
plans that allow developers to more autonomously
plan the use of their own property while achieving
societal goals.
Setting
a standard rather than demanding a rule is also more
respective of owner autonomy and property rights.
Although still restricted, property owners
constrained by a demand to meet a standard can
design their uses and developments in a manner that
optimizes both the private property preferences and
community goals.
Nonetheless,
it should not be forgotten that an underlying
obligation for governance should be to respect
private property rights and allow owners to use what
is their own as they see fit.
Development restrictions, whether rules or
standards based, necessarily limit private property
rights. A
paradigmatic shift toward standards based regulation
at least moves government closer to meeting its
obligation to allow private property owners to
control and use what is their own.
--
November 17, 2003
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