IV. METROPOLITAN PLANNING-NEW DEPARTURES

A. A CRITIQUE OF THE MODEL STATE ENABLING ACT

The first half of the 20th century saw a tremendous upsurge of interest and activity in city planning. A significant factor in the spate of city planning legislation was the Model Act, sponsored by the U.S. Department of Commerce in the 1920's. Itself inspired by the rising tide of interest in the then comparatively new subject, it in turn inspired and facilitated the enactment of more or less similar acts throughout the Nation; nearly three-fourths of the States passed planning enabling legislation based on its provisions.

For various reasons (not least of which is the emphasis of various Federal enactments) the second half of this century has seen, and is seeing, a similar movement for metropolitan planning. The standard city planning and zoning acts have no real counterpart in regional planning. Model acts have been drafted by various groups. None, however, has had an influence at all comparable to the standard acts. And, despite the increased focus on "regions," as opposed to "municipalities," regional planning is far from having realized its full potential. A model could give impetus to a fuller realization. The model bill for State enabling legislation for the establishment of metropolitan planning agencies (for the sake of brevity, hereinafter referred to simply as the "act"), drafted by the Advisory Commission on Intergovernmental Relations, is analyzed from that perspective.

General. The act might well be described as eclectic. A canvass of metropolitan legislation indicates the existence of provisions similar to those of the proposed model. Some provisions are typical of legislation in this area, appearing in almost every enactment. Others are less commonplace. But all of it will have a familiar sound to students of regional planning laws. And, considering the relatively late appearance of the act in the legal history of the subject, anything else would be indeed surprising. Borrowing from prior example, indeed, may be a virtue.

The act's susceptibility to adverse criticism does lie in the fact that its provisions as a whole appear to lack a unifying rationalizing thread. For example, it enables but does not encourage regional planning. Nowhere in the act are there inducements to plan jointly, for the region, rather than parochially for the area of the single political entity. On the other hand, it does pose a barrier to some joint ventures in planning that might otherwise be formed.

This lack of a unified philosophy, purpose, or intent in the act weakens its practical usefulness. Unforeseen circumstances, changing technologies, changing views, changing physical facts sooner or later necessitate amendment, either formally, by the legislature, or factually, by administrators and adjudicators. Where the legislature itself acts, the purpose of the predecessor body is hardly vital,

however interesting it may be. But where others must effectuate the modernization, a discernible purpose or philosophy becomes much more important. Without it, guidelines are lacking; as a result, what should be an interstitial filler may become innovatory legislation, different and perhaps even conflicting with the policy of the original enactment. Sometimes the light of policy is needed to aid in applying or interpreting a statute almost before the ink is dry on the page. The philosophy of a model act must be as clear and positive as possible if it is to serve well over a long period of years.

The act in detail.-Section 1 of the act sets forth its general purpose. The section declares the legislature's recognition of interests and the transcendence of impacts over local political boundaries. The larger apolitical community is identified as the metropolitan area. The purpose is then said to be twofold. The first is to enable planning for the metropolitan area and implementation of the plan. It would seem to envisage that the various entities within the prescribed area would act as a single unit in planning the development of the overall area, at least insofar as any development had an extra-local impact, and, cooperatively if not as a unit, in implementing the plan. The second is to enable coordination of the separate plans of the political units comprised within the same area. It seems not so much an addition as an alternative. It appears to assume the continuance of planning on a local scale, with subsequent efforts by the interested localities to harmonize and dovetail their respective plans. It is not clear whether those efforts are to extend past the planning stage to that of execution or implementation.

Section 2 of the act deals with the creation of the regional commission. "Creation," the word used in the caption, is broad enough to encompass both substantive and procedural aspects of the formation of the commission. The potential of the caption is narrowed by the opening phrase of the section which announces that it deals with "procedures" for establishing regional commissions. In fact, however, the section deals not merely with how such commissions are to be established but prescribes their composition. As to "procedures," the act purports to spell out two. One of the two is clear enough: The commission is to be set up pursuant to agreement among interested polities, adopted by their respective governing bodies acting individually. But the second clause of the provision authorizes specified localities to transfer any or all of their planning powers to a metropolitan area planning commission. The grammatical implication quite clearly is that the commission is already in existence when the transfer occurs. Thus, rather than introducing a second method of establishing a metropolitan planning commission, it merely elaborates the one permissible route, intergovernmental agreement.

The section also provides who may and who must be party to a section 2 agreement. The permissible charter signatories are incorporated municipalities, counties, and cities in concentric or adjacent geographic relationship. Two provisos are appended. The first restricts the power of agreement by making the largest city or municipality an indispensable party to any agreement entered into by cities and municipalities. The statutory language, "that in the case of municipalities and cities***" would seem to exclude agreements between ad

jacent counties from the restriction. But it is unclear whether an agreement between one or more counties and a city would be included. The second proviso is also restrictive. It introduces for the first time "townships, schools, and other special districts or independent governmental bodies ***"--which were not included as permissive signatories. The act requires that, for the agreement to be effective, the signatory units "shall equal 60 percent or more of the total number of such counties, cities, and other local units of government within the metropolitan area. ***" This representation proviso leaves unclear whether 60 percent of all the government units in the area or 60 percent of each kind of unit must be parties to the agreement. While a footnote to the act calls attention to the fact that variations from State to State may be desirable in establishing appropriate representation, this may be taken to refer to the particular arbitrary percentage selected and not to the structure created by the section.

Nor is the ambiguity as to percentage the only one in the proviso. Another linguistic hurdle is that the original delegation of authority to create regional commissions by agreement does not, in terms, extend to "townships, schools, and other special districts or independent governmental bodies. * * These are rung in for the first time in the second of the two restrictive provisos. If the delegation is to be applied literally, it would mean that townships, etc., could never formally participate in the original creation. Proponents of cooperative planning might view this as unduly restrictive.

The purposes set out in section 1 do not help to resolve the difficulties. First section 1 says the act is to enable planning for a metropolitan area as a whole. This can be viewed as favoring a restrictive interpretation since, unless a substantial percentage is represented in the planning effort, the effort will be futile. The preface to the act, which may be analogized to legislative history, reinforces that view. Opposed to it is the concluding paragraph of the section which permits any governmental unit to become party to a metropolitan planning agreement. This seems to lead to the following result: a minority of any category of governmental entity may not participate in the drafting of the creating document, but once an agreement has been executed they may go along with the decisions reached by the original signatories. The second purposive clause in section 1, however, would seem to favor a more liberal interpretation. Coordination of plans, etc., of separate political units would seem to be furthered by cooperation by as few as two units, even if the gain increases more than proportionately as the number of participating entities grows. As a consequence, the statute should be read to allow as wide a participating group as possible as early as possible.

Sections 3, 4, and 5 call for very little comment. It may be objected that the Census Bureau's definition of a standard metropolitan statistical area, incorporated by reference into section 3, is unduly long. Indeed the definition is longer than the act itself. More validly, it may also be objected that criteria for statistical purposes, which are all that the Bureau has in view, are not necessarily appropriate for optimum planning areas. Hence the metropolitan statistical area could conceivably and with good reason use as a standard a higher degree of urbanization and integration than would be desira

ble for a metropolitan planning area. A footnote to section 3 of the act calls attention to the existence of alternative definitions.

Sections 4 and 5 are virtually boilerplate in legislation to enable joint planning, whether denominated regional or metropolitan. Yet here, too, some inconsistency may be noted. Section 4 provides for representation of participants by elected officials. The rationale for requiring members to be elected officials is stated in the prefatory section to be "in order to 'gear planning into practical decisionmaking process * **" The natural extension of this thought would seem to be that membership should be coterminous with tenure of office. The act, however, provides for the "term (of membership) to be specified in the agreement." While it is possible to construe this as permitting the agreement to tie term to office, the less strained rendering is that the term is used in the sense of fixed period of time.. More substantively, it may be asked whether "demonstrated outstanding leadership in community affairs" should be the test of membership for nonelected commissioners as provided by section 4. The leadership element would seem to be more than adequately supplied by the political members, whose forte it is. Nonelected members could better serve by contributing expertise in the several areas of activity relevant to planning-real estate, financial, and a host of others.

It may also be asked why an appropriate State agency should be given a veto power over applications for Federal aid where the State is not given other responsibilities. The relation between the State government and the metropolitan agency by the act is extremely tenuous. Section 4 permits, but does not require, the Governor to designate a representative to attend meetings of the commission. Section 6, subdivision (f) places the onus on the metropolitan agency to coordinate its activities with, among others, those of the State; and subsection (g) of the same section requires it to provide "information" to State agencies, presumably on request. Lastly, section 9. provides for submission of a copy of the annual report to the Governor. Taken together, this does not seem a relationship which justifies giving to the States the power of the purse strings.

Section 6, which lists the commission's duties, if not the crucial section, certainly shares in that distinction with sections 2 and 7, which deal with the creation of the planning agency and the implementation of plans. Much of it is a repetition of numerous current enactments; e.g., recommendations for a general circulation pattern for the area, for public and private works and facilities—their location, programing, and financing. It adheres to the more typical approach also in that, with respect to both these and the other subjects. within its domain, the commission's function is more advisory than administrative or executive. It recommends, it reviews; it does not direct, it does not enact, it does not regulate.

In a few respects, section 6 does introduce new provisions. One is the requirement that the metropolitan plan to be prepared by the commission contain "a statement of the objectives, standards, and principles sought to be expressed in the plan." Such a requirement serves at least two purposes. It heightens the probability that the plan will be a rational blueprint for action, at least reasonably consistent with the goals and objectives articulated for the area by the commission..

It also provides a criterion of review by State or Federal agencies, including the judiciary. Equally important, it is a key to quicker and better comprehension of the plan not only by officialdom, but by the general public as well. The provision for publication and dissemination is complementary in that it makes the plan widely available. Fulfillment of other of the purposes would be more probable if the act included some procedure for automatic review of the metropolitan plan by other levels of government-State, Federal, or both.

The act takes a stride forward also in its recognition that zoning and subdividing are not matters of purely local concern. This is embodied in subsection (b) which directs the commission to prepare and keep up-to-date regulations governing zoning, subdivisions, and platting. Like its other duties, however, this too is advisory only, and the recommendations of the commission have no direct binding effect. A related provision, that of subsection (i), gives the commission the power and duty to review enactments affecting the plan proposed for adoption by local governments. As to regulations governing zoning and subdivision, this adds little. The metropolitan commission is in a position to know of departures from the regional plan. It may exert its force in favor of conformity, but the force is limited by the act to such moral and persuasive pressure as it is able to bring to bear. With respect to capital projects, the commission's power is more practical albeit indirect. As to these, it not only has the power to review, under subsection (h), but under (i) may review applications by local governments to State and Federal Governments for financial assistance and comment on their consistency with the metropolitan plan. Here again, the commission has no power to assure action in accordance with its recommendation. Nevertheless, the direct line of communication to the power disbursing the funds might well have a very considerable weight with applicants for financial help.

Also a departure from the generality of existing legislation is another provision of subsection (i). This directs the metropolitan commission to "review and comment upon State plans for highways and public works within the area***" This function too is a desirable one for the commission to assume. And here the nonbinding nature of the commission's view seems eminently right and proper.

Another of the less common provisions is subsection (f) which directs metropolitan commissions to "provide planning assistance to county, municipal, or other local governments***." This is a rather general direction. It could be met by as little as communicating desired information over the telephone, or the particular problem may require the expert and expensive services of technicians. While it might be reasonable to require the latter to be provided to participating governmental units, it seems inequitable to require that it be furnished to nonparticipants, with no provision for payment. On the other hand, supplying planning services to governments in the area is an excellent way for the metropolitan agency to influence local decisions, and also to become better acquainted with local conditions and local thinking. These benefits may be greater in dealing with nonmembers than with member governments, though the agency should, of course, be able to charge for its services at cost.

Section 7 deals with implementation of the plan. Unfortunately, it perpetuates the inherent weakness that has characterized

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