Planned Growth Strategy - Part 2, Chapter 5 · The Planned Growth Strategy is a strategy designed,...

Section 2 Implementation

169FREILICH LEITNER & CARLISLE PLANNED GROWTH STRATEGY

5.1 Introductionn past years, the City of Albuquerque andBernalillo County have struggled with the

realities of high levels of growth. While growthproduces many benefits, such as job creationand economic development, it also creates newdemands and issues relating to infrastructure,urban design, environmental protection, andquality of life. The City and County have com-missioned a Planned Growth Strategy toassess the impacts of this growth. ThePlanned Growth Strategy is a planning effortinvolving a number of engineering and plan-ning consultants, using public participationand survey efforts to arrive at a PlannedGrowth Strategy for the community.

As part of the Planned Growth Strategy, theCity and County have contracted with theplanning and law firm of Freilich, Leitner &Carlisle to provide a bridge between the manyplanning efforts and implementation of thoseplans. The purpose of this chapter is to imple-ment a portion of the contract between the Cityof Albuquerque and County of Bernalillo andFreilich, Leitner & Carlisle. The contract, inpart, provides for recommendations about howto tie growth to level of service standards forinfrastructure (quantifiable measures of need-ed infrastructure capacity). In particular, thischapter addresses how to vary level of servicestandards to encourage compact growth and todiscourage sprawl. Specific standards are notprovided in this chapter but may be developedlater by staff or engineering firms retained bythe City and County.

One of the issues relating to new developmentin the community is the timing and phasing ofdevelopment. As new development occurs, itrequires and places demands upon, publicfacilities such as roads, water, wastewater col-lection and treatment, drainage, parks, andother facilities. If new development occurs inlocations where inadequate infrastructure

capacity exists, facilities become congested. InTown Hall meetings with the public conductedas part of the Planned Growth Strategy, citi-zens requested specific performance require-ments for water, water reuse, air quality,drainage, and energy efficiency.

A reasonable equilibrium between the pace ofdevelopment and the capacity of infrastructurecan be achieved through three major regulato-ry strategies. First, the local governments canuse their police powers to regulate the timingand sequencing of development. This concept,known commonly as “concurrency” or “ade-quacy of public facilities,” ties the approval ofdesignated land use decisions to level of serv-ice standards for infrastructure. Second, thelocal governments can encourage developmentto occur in locations where services can be effi-ciently provided, rather than in locationswhere service provision is costly and ineffi-cient. Finally, local governments can encour-age development to occur in a form and a man-ner that uses services more efficiently. Forexample, in Town Hall meetings, the publicexpressed a desire to encourage infill develop-ment and to assure that infill developmentcomplements development on the periphery ofbuilt-up areas. Further, the public suggestedthat criteria for mixed-use development andincreased densities are needed.

This chapter discusses each strategy andbriefly relates them to the Planned GrowthStrategy and other City/County planningefforts. Section 5.3 describes the concept of anAdequate Public Facilities Ordinance or con-currency system. This strategy ties develop-ment approval directly to infrastructure servicelevels. Sections 5.3 and 5.4 address strategiesthat indirectly address level of service issues.Section 5.4 describes locational strategiesrelated to urban form. Section 5.5 describescommunity design regulations that produceefficiencies in the use of infrastructure.

5.0 Level of Service Standardsand the Planned Growth Strategy

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Finally, Section 5.6 describes how these threeconcepts can be related to an overall PlannedGrowth Strategy implementation strategy forthe City and County.

5.2 The Planned Growth StrategyThe Planned Growth Strategy is a strategydesigned, in part, to address the linkagebetween infrastructure and population andemployment growth in the region. ThePlanned Growth Strategy has six major guid-ing principles, as follows:

1. The location of population and employ-ment growth should be phased and timedto achieve community goals. These goalsare represented by the Planned GrowthStrategy Preferred Alternative.

2. Critical infrastructure capacity (streets,parks, schools, water, sewer, and stormdrainage) is available to support urbangrowth.

3. The needs of growth, rehabilitation, andthe correction of existing infrastructuredeficiencies are fully funded.

4. Implementation is guided by adoptedplans, e.g., corridor plans, sector (neigh-borhood) plans, redevelopment plans, andarea plans.

5. Charges for infrastructure to supportgrowth reflect the costs of growth to thecommunity.

6. The system is flexible.

As part of the process, short-term (1-10 years)and medium-term (10-25 years) growth areashave been identified.1 These growth areas canbe viewed in several different ways. The areasreflect the community’s objectives for the loca-tion and density of development. These areasreflect the community’s goals for the timingand sequencing of development. In otherwords, while the fully served areas may bemore appropriate for higher densities, it is also

PLANNED GROWTH STRATEGY FREILICH LEITNER & CARLISLE

Figure 30Planned Growth Strategy Short-Term

Preferred Alternative (2000-2010)

Figure 31Planned Growth Strategy Long-Term

Preferred Alternative (2010-2025)

Chart 5An Adequate Public Facilities

Ordinance is designed to establish a reasonable equilibrium between the timing

of new growth and public facilities.

Time

FREILICH LEITNER & CARLISLE PLANNED GROWTH STRATEGY

appropriate that served areas develop beforenew development occurs in the unservedareas. This chapter is primarily directedtoward the second objective, although it hasimplications about the first objective as well.

The Preferred Alternative is based, in part, onthe availability of infrastructure in the commu-nity. The location of infrastructure is dividedinto three broad “tiers.” First, the “FullyServed Areas” are areas that contain the fullrange of urban infrastructure. The FullyServed Areas for water have been divided fur-ther into areas with excess water capacity andareas without excess water capacity. Second,“Partially Served Areas” have some, but not all,of the necessary infrastructure and services.Outside of the Fully Served Areas and PartiallyServed Areas lie the “Unserved Areas,” whichlack all or most of the needed infrastructureand services. These areas are shown inFigures 32–35 for water, wastewater, hydrolo-gy, and streets.

The following tools have been identified toimplement the Planned Growth Strategy:

• Capital Improvements Programs

• Service Standards and Concurrency orAdequate Public Facilities Ordinances

• Development Impact Fees

• Development Agreements

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Figure 33Wastewater Tiers

Figure 34Hydrology Tiers

Figure 35Street Traffic Sheds

Figure 32Water Tiers


• Development Incentives and Inducements

• Community Plans

Under the consultant’s contract, the scope ofthis chapter relates primarily to the first andsecond tools listed above. Those tools directlytie new capital improvements and developmentto level of service standards. Impact fees areaddressed in a separate contract with GrowthManagement Analysts, Inc. (Chapter 6).Accordingly, this chapter will focus on the useof an Adequate Public Facilities Ordinance andCapital Improvements Program as tools toimplement the Planned Growth Strategy. Therelationship with the other tools will beexplained later in the chapter.

Implementation of the Planned Growth Strategyrequires several concrete actions by the City andCounty. First, an adequate planning basis mustbe established for the implementation tools.While some have called for an update of theCity/County Comprehensive Plan, the commu-nity has developed a large number of plans withlittle implementation in the context of land usecontrols. The existing plans provide ample basisfor moving from planning to implementation. Acomprehensive tool, such as an Adequate PublicFacilities Ordinance, could tie together many ofthe policies scattered among the City/CountyComprehensive Plan, the Sector Plans, AreaPlans, and infrastructure master plans into oneset of standards. This not only provides a bridgefrom the community’s land use and infrastruc-ture policies to new development proposals, butit also offers predictability for service providersand developers who now face a bewildering arrayof policies when undertaking service expansionor development decisions.

Second, the Capital Improvements Program/Adequate Public Facilities Ordinance approachis sufficiently flexible to be mandatory orincentive-based, or to use a combination ofboth approaches. A purely mandatory systemwould directly tie issuance of development per-mits to level of service standards for infra-structure. A purely incentive-based systemwould tie the level of service only to increasesin density or other regulatory or financialincentives. In practice, most communities use

a mandatory system. Some communities(such as Montgomery County, Maryland andOrlando, Florida) use a sophisticated blend ofmandates and incentives.

The degree to which the policies focus on man-dates or incentives is a policy decision for thecommunity, not for the consultant. However,mandatory systems are generally more effec-tive but less acceptable to the developmentcommunity. In practice, a system of incentivesis advisable to tailor the Adequate PublicFacilities Ordinance to the locational anddesign policies of the Planned Growth Strategyand to offset some unintended negative conse-quences of the system. For example, aTransfer of Development Rights system (as dis-cussed in Chapter 7) could be used to directgrowth to desired development areas and tocreate incentives for the conservation of areaswith a low priority for development. Anotherexample is the use of exemptions or capacityset-asides for affordable housing, which areused by Montgomery County and Orlando toachieve this and other policy outcomes.

Third, while no system can assure that allcosts are fully funded, the variable CapitalImprovements Program/Adequate PublicFacilities Ordinance approach increases thelikelihood that critical infrastructure capacitywill be available to serve urban growth.Expansion of infrastructure is tied to level ofservice standards that make sense for particu-lar areas of the community, rather than a uni-form approach. Areas where capacity cannotbe expanded for policy reasons can be assigneda lower level of service or exempted from anAdequate Public Facilities Ordinance altogeth-er. This creates an incentive for the develop-ment of infill areas, such as the RedevelopableLands, Population/Employment Centers, andCommunity and Village Centers by removing astep in the development approval process. Byusing a reasonable, long-term CapitalImprovements Program in other areas of thecommunity and a combination of public andprivate financing, resources otherwise commit-ted to post-hoc capacity in low priority areascan be committed to maintenance and rehabil-itation. Further, a long-range constrained

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Capital Improvements Program assures thatthe community is also making land availablefor future development to accommodate anexpanding population and employment base.

Finally, a varied level of service approachassures that infrastructure charges reflect thetrue costs to the community. Developmentapprovals specified in the system cannot pro-ceed unless the level of service standards willbe met.2 The cost of providing the facilitiesneeded to meet the level of service will be iden-tified in the Capital Improvements Program.Developers can choose to phase their develop-ment to match the build out of infrastructure,based on the area’s level of service, or to vol-untarily advance the facilities with a develop-ment agreement. It also provides a basis fordetermining whether an area “may be providedwith municipal services” for purposes of evalu-ating annexation proposals under theMunicipal Boundary Commission legislationand similar statutory requirements.3

The balance of this chapter addresses how avaried level of service can be established, how itworks with related tools such as developmentagreements and impact fees, and how potentialproblems with the system may be addressed.

5.3 Timing and Sequencing:Adequate Public FacilitiesAn Adequate Public Facilities Ordinance4 is arecognized comprehensive plan implementationtechnique designed to assure that necessarypublic facilities and services to support newdevelopment are available and adequate, basedon adopted level of service standards, at thetime that the impacts of new development occur.An Adequate Public Facilities Ordinance is gen-erally implemented by a general purpose localgovernment, which exercises land use regulato-ry authority, whether or not that unit of govern-ment is the facility or service provider.Implementation is through the land use regula-tory process (i.e., master plan amendments,subdivision approval, rezonings, developmentplans and/or building permits) and a capitalimprovements program for public facilities.

In practice, most communities tie some devel-opment approvals to infrastructure capacity onan ad-hoc basis. Rezonings and subdivisionplats are routinely denied in many communi-ties where concerns about “traffic congestion”or other capacity shortfalls arise. The City’sWater and Sewer Extension Policy also haslimited concurrency concepts in that it pro-hibits extensions which would exceed thecapacity of the system (Ordinance No. 20-1984, § 14). An Adequate Public FacilitiesOrdinance simply expands and refines con-cepts routinely enforced by the City and otherjurisdictions throughout the nation, in order tointegrate them with the planned growth strat-egy policies and to provide certainty and pre-dictability for the private development commu-nity and service providers.

An Adequate Public Facilities Ordinance wouldaugment the City/County ComprehensivePlan, which currently incorporates goals andpolicies regarding adequacy of public facilitiesand services, and the land development regu-lations.5 While the Plan contains numerousreferences to the necessity for the availabilityand adequacy of public facilities as a precondi-tion to development,6 it does not presentlyaccomplish the key objectives of a AdequatePublic Facilities Ordinance because (1) no levelof service standards are included by which“adequacy” can be measured, (2) there are nopresent measurements of some facility capaci-ties to determine whether capacity is “avail-able” to serve a proposed development, and (3)there is no formal mechanism for adequatepublic facilities review as a systemic part of thedevelopment review and approval process.7

The seven major objectives of an AdequatePublic Facilities Ordinance are:

1. To link the provision of key public facili-ties and services with the type, amount,location, density, rate, and timing of newdevelopment.

2. To properly manage new growth anddevelopment so that it does not outpacethe ability of service providers to accom-modate the development at establishedlevel of service standards.

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3. To coordinate public facility and servicecapacity with the demands created by newdevelopment.

4. To discourage sprawl and leapfrog devel-opment patterns and to promote moreinfill development and redevelopment con-sistent with the adopted ComprehensivePlan and the Planned Growth StrategyPreferred Alternative.

5. To encourage types of fringe developmentespecially in the Partially Served Area thatincorporate community building princi-ples as identified in the Planned GrowthStrategy and reflect Traditional Neighbor-hood Development approaches.

6. To assure that the provision of publicfacilities and services to new developmentdoes not cause a reduction in the levels ofservice provided to existing residents.

7. To guarantee that new residents receiveall necessary public facilities and services.

Prior to adopting an adequate public facilities/concurrency management ordinance, a numberof policy issues must be addressed by the Cityand County. In addition, the adequate publicfacilities/concurrency management ordinancemust be carefully coordinated with other devel-opment review and approval processes.

The major structural components of anAdequate Public Facilities Ordinance are asfollows:

1. The areas, and subareas, of the commu-nity within which the Adequate PublicFacilities Ordinance will apply.

2. The public facilities and services that willbe included in the Adequate PublicFacilities Ordinance.

3. The level of service standard for each pub-lic facility or service to be included in theAdequate Public Facilities Ordinance.

4. Current and projected public facility andservice capacities.

5. The types of developments/land uses towhich the Adequate Public FacilitiesOrdinance will apply.

6. The types of development approvals/per-mits to which the Adequate PublicFacilities Ordinance will apply.

7. The point in the development approvalprocess when adequacy of public facilitieswill be determined.

8. The effect of failing to meet a level of serv-ice standard.

9. The conditions and mitigation require-ments that may be attached to concurren-cy approval.

10.The reservation of facility capacity.

5.3.1 How a Concurrency or Adequate Public Facilities Ordinance is Structured

Capital Facilities and Level of Service Standards

The cornerstone of an Adequate PublicFacilities Ordinance is the adoption of a level ofservice standard for each facility subject to theordinance. The adopted level of service willgovern both the amount and timing of growthand development that will be permitted as wellas the level of public/private investment need-ed in order to achieve and maintain that stan-dard. In Florida, where concurrency has beenpart of the state's growth management legisla-tion for nearly a decade, “level of service” isdefined as follows:

“Level of service” means an indi-cator of the extent or degree ofservice provided by, or proposedto be provided by a facility, basedon and related to the operationalcharacteristics of the facility.Level of service shall indicate thecapacity per unit of demand foreach public facility.8

As a means of measuring performance, a levelof service standard should take into consider-ation both the capacity of a public facility andthe demand currently placed and potentiallyplaced on the public facility from existing

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development, approved developments, andprojected future growth. By comparing thedemand to the capacity of a public facility, thelocal government may determine how much ofthe capacity of a given facility may be allocatedto development within a designated area uponproject approval.

In establishing level of service standards, theCity and County should consider their rela-tionship to health, safety, and welfare; politicalacceptability; availability of funding; feasibilityof construction and right-of-way acquisition;external factors (such as regional pass-through traffic for roads); and the period oftime over which the standard is to be achieved.The components of the facility and how thelevel of service standard is to be measuredshould be carefully defined in the AdequatePublic Facilities Ordinance

For most public facilities, there will be morethan one measure of capacity that requiresanalysis; and there will likely be alternativemethodologies for measuring concurrency.For some public facilities, such as water, andservices, such as fire, there are several criticallevels of analysis that should be performed inorder to determine whether the level of servicestandard will be achieved. In addition, thereare alternative methodologies for measuringthe capacity of the facility. The base unit ofdemand is typically an equivalent residentialunit or an equivalent dwelling unit. This fig-ure is based upon the rate at which one single-family dwelling generates a facility need and,therefore, allows a planner or decision-makerto equate different types of residential dwellingunits as well as residential to non-residentialsquare footage. The carrying capacity of thepublic facility may then be applied uniformly toboth residential and non-residential develop-ment based upon logical equivalency rates.

Water and Sewer

Water and sewer systems play a critical role indetermining where growth occurs on the urbanfringe.9 The City’s water (and wastewater) sys-tem is regional in scope. The metropolitan

area is split essentially into ten “trunks” whichessentially constitute independent water sys-tems. Each trunk is divided into pressurezones, which are the basic unit for which waterservice is provided. A pressure zone within atrunk may be the most costly single element ofinfrastructure system expansion. The reasonfor this is that opening a pressure zone gener-ally requires a new well, reservoir, pump sta-tions, and water transmission lines. The totalcost for these items is about $7 to $8 milliondollars. One important consideration is thatopening a new pressure zone provides a“block” of capacity to serve approximately10,000 persons.

In order to understand how to provide waterservice to support growth efficiently, it is usefulto break down the system into the types ofimprovements needed to provide service. Theseinclude: wells, water rights, SCADA computercontrol system, reservoirs, pump stations,transmission lines between the wells and thereservoirs, large “master plan” distributionlines, smaller distribution lines which run inthe streets, and service connections betweenthe street distribution lines and the lot.

The metropolitan area can be divided intothree broad categories of water service in termsof the future increment of cost necessary tosupport new growth. The first area is nearlycompletely developed with all the types ofwater infrastructure and, according to utilityengineers, has excess water capacity to sup-port growth (Fully Served Areas). Water trunkswith excess capacity include the MontgomeryTrunk, Freeway Trunk, and Ridgecrest Trunk.The identification of excess capacity addresseswater supply. The second area has a numberof important infrastructure items constructed,such as reservoirs and transmission lines, butother types of infrastructure would have to bebuilt to support growth, such as large andsmall distribution lines and service connec-tions (Partially Served Areas). The third areacurrently has no service. The full range of newinfrastructure would need to be built to sup-port new growth in these pressure zones(Unserved Areas).

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This situation is indicated Table 41.

This categorization of the metropolitan area isconsistent with the Town Hall participants’support for the provision of infrastructure inan efficient and cost effective manner and thepreference that development should occur inareas where existing services are available “asa first priority,” Comprehensive Plan policy,and the recommendation that an urban infra-structure services area be defined.

In order to achieve greater efficiency, thePlanned Growth Strategy is concerned withfully utilizing the urban water system capacityalready constructed. The approach includesthe facilities of the City of Albuquerque’s waterand wastewater utility and of New MexicoUtilities, Inc. However, it does not addresssmall community systems that are notdesigned for and do not have the capacity tosupport full urban development.

The same approach was taken with regard tounderstanding the wastewater utility (and also

for streets and hydrology infrastructure) as itrelates to the establishment of the PreferredAlternative. The utility has divided its servicearea into units called wastewater basins (e.g.,Uptown, Coors, Four Hills) and sub-basins(UP-01, UP-02, CO-01). More recently, theutility has moved to a more general model ofeast side and west side of the Rio Grandebasins with sub-basins used to computecapacity. As with water service, the metropol-itan area can be divided into three generalareas in terms of the cost to support newgrowth with sewer service. The first area isnearly completely developed with all the sewerinfrastructure elements needed to supportgrowth. The second area already has an inter-ceptor line constructed, but collection linesand service connections are needed, and treat-ment plant capacity is required. The third areahas no service at present, and the full range ofnew infrastructure would need to support newgrowth. This situation is indicated in Table 42.

Since infrastructure efficiency primarily relatesto the utilization of facilities already construct-

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ed, from this standpoint, the Planned GrowthStrategy is not concerned with unserved infra-structure franchise areas.

For central water facilities, there may be threelevels of analysis that should be performed inorder to assess whether adequate supplies areavailable. First, the physical supply of theunderlying surface or groundwater sourcemust be sufficient to accommodate demand.The capacity of groundwater/surface waterresources ultimately dictates the community'sability to accommodate new growth. This typeof provision requires reliable information per-taining to the amount of ground and surfacewater available. The applicant for developmentapproval should indicate the source of water tobe used. Local governments must usually relyon the state procedures for adjudicating andallocating groundwater and surface waterresources in order to determine their availabil-ity to support a proposed development.10

Accordingly, the second level of analysisshould require an applicant for developmentapproval to present documentation that indi-cates the entity that has committed to provid-ing water to the development and proof thatthe entity has adequate water rights and a sus-tainable supply to accommodate the needs ofthe proposed development. Supply can bemeasured in terms of time (e.g., the right towithdraw from the resource for a minimum of100 years without depleting the source) andquantity (e.g., the right to appropriate a mini-mum of “x” gallons per day). Courts in other

states have upheld the requirement that asubdivider demonstrate a 300-year supply.11

In addition, the annual or daily appropriationrights may be translated into a carrying capac-ity for the source depending upon the equiva-lent residential unit standard adopted by thecommunity.12

If the system serving the development, such asthe City’s central water system, has sufficientpermitted rights for a long period of time, thewater resources analysis could be removed forpurposes of administrative convenience andregulatory streamlining.

Finally, the applicant for development approvalshould be required to demonstrate that reser-voirs, surface water treatment plants, lift sta-tions, transmission lines, and distributionlines are capable of delivering adequate waterto meet the demands created by the proposeddevelopment. In addition, the distributionlines must have adequate water pressure toaccommodate the scale of development pro-posed for both domestic use and fire flows.With the exception of physical supply, a simi-lar analysis would apply to wastewater treat-ment facilities. Specific criteria for measuringdemand are provided in the DevelopmentProcess Manual, as is discussed further inSection 5.6 of this chapter.

For both water and sewer, level of service stan-dards should also be developed for individualwells and septic systems in order to protectpublic health and safety in areas where devel-

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opment is at densities sufficiently low to permitnon-central systems. In most jurisdictions, aminimum lot size applies to projects utilizingon-site wells and/or septic systems in order toassure that there is adequate land area forseptic disposal, to avoid the excessive concen-tration of individual disposal systems, and tomaintain an adequate distance between theseptic system and the well. State and localregulations require connection to a central sys-tem where distribution lines are already locat-ed within a specified distance of the proposeddevelopment. Furthermore, standards areneeded for high production industrial wells toprotect water sustainability.

Roads

Traffic engineers generally utilize a performancerating system based upon the operational char-acteristics of a roadway, e.g., speed and traveltime, for local, collector, and arterial streets asset forth in the Institute of TransportationEngineers, Highway Capacity Manual.13 Whilesome jurisdictions have developed specific, localmethodologies for converting travel speed to thecarrying capacity of roadways, most jurisdic-tions utilize a ratio of volume (e.g., the numberof trips on a designated roadway segment dur-ing the peak hour) to capacity (the maximumnumber of trips that the segment may accom-modate at the designated level of service stan-dard) as a proxy for performance (the volume tocapacity ratio). Table 43 presents a volume tocapacity ratio equivalency chart that is utilizedin many jurisdictions.

Capacity of existing and planned roadways,particularly collectors and arterials, is only oneside of the Adequate Public FacilitiesOrdinance determination equation for adequa-cy of road facilities. The other element is thetraffic generated by a proposed developmentwhich utilizes the available capacity. Whileeach roadway segment and intersection has aspecific peak hour carrying capacity, the com-munity may choose the level of service stan-dard that is acceptable, e.g., level of service Cwhich would allow for a maximum of 79% ofthe roadway capacity to be utilized, or level ofservice E which would allow 99% of the capac-ity to be committed to development. (The high-er the percentage of roadway capacity used,the greater the delays on roadway segmentsand intersections.) If the level of service stan-dard is set, for example, at C, once 79% of thepeak hour roadway capacity is being utilized,further development would be denied ordeferred until additional capacity is madeavailable (e.g., via new roadway construction,additional through lanes, improving and coor-dinating signalization, providing accelerationand/or deceleration lanes, adding left andright turn lanes, constructing medians, etc.).Another option is to allow an applicant fordevelopment approval to undertake mitigationmeasures to reduce the otherwise applicabletraffic impacts.

Utilization of a roadway level of service stan-dard necessitates a sophisticated system foridentifying current major roadway volumesand capacities and monitoring changes as

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capacity is added via roadway improvementsand as capacity is consumed by new develop-ment. This can be compared with an account-ing system of credits (for capacity expansions)and debits (for capacity utilization).

On the demand side of the equation, there areestablished methodologies to measure the traf-fic generation impacts of different land uses.The Institute of Transportation Engineers TripGeneration Manual (1991) compiles data aboutthe trip generation characteristics of virtuallyall common land use developments. For exam-ple, a single-family dwelling unit generatesapproximately 9.6 trips per day, while a multi-family unit generates fewer trips, i.e., 7.8 tripsper day. Non-residential development trip gen-eration is typically measured per 1,000 squarefeet based on the type of non-residential landuse, e.g., retail, office, warehouse, industrial,hotel, drive-in facility, etc.

The extent that proposed developments willutilize collector and arterial streets is also afunction of four other factors besides the tripgeneration rate: the average trip length asso-ciated with the type of development (the longerthe trip, the greater the roadway capacity thatis utilized); the predominant direction of travel;the number of “pass-by” trips “captured” bythe proposed development as opposed to thegeneration of new trips; and the time at whichmost trips are generated, e.g., a.m. peak hour,p.m. peak hour or spread evenly over a 12- or24-hour period.

In many cases, a transportation analysis isrequired for a development, demonstratingthat capacity is available to accommodate thetraffic projected to be generated by the devel-opment without causing a diminution in thecurrent or adopted level of service standard.One of the vexing issues that sometimes arisesin requiring a transportation analysis is thegeographic area and the collector and arterialstreets that must be investigated. If the geo-graphic scope is too narrow, more distantimpacts may be overlooked; however, if thegeographic scope is overly broad, the trans-portation analysis may be unduly expensiveand time consuming. A reasonable approach

might be to establish geographic limits fortransportation analysis based upon the sizeand/or location of the project.

Applying these concepts, the Planned GrowthStrategy team has inventoried the availablevacant land in approved subdivisions, landlikely to develop outside of approved subdivi-sions, and redevelopable land in the PlannedGrowth Strategy, Part 2 – Preferred Alternative.This information is compiled for land withinthe urban service area and can be used to iter-ate the magnitude of improvements needed toreach various level of service standards bysubarea. The level of service selected shouldtake into consideration the projected popula-tion and employment growth in these areasthat are identified in the Preferred Alternativeas well as the ability to expand right-of-wayand facility capacity.

Drainage

New development has both on-site and off-sitestorm water impacts. Many subdivision regu-lations require on-site detention and requirethat postdevelopment runoff not exceed prede-velopment runoff. Minimum detention volumeand maximum release rates are typicallyestablished. The design storm (2-, 10-, 25-and 50-year recurrence intervals) is critical indetermining which storm water managementtechniques to utilize and how they should besized. These types of regulations are not typi-cal of other Adequate Public FacilitiesOrdinance standards because they tend toaddress internal site improvements ratherthan off-site capacity.

Urban areas, such as Albuquerque, that haveregional storm water management facilitiescan build off-site capacity into the AdequatePublic Facilities Ordinance concurrency reviewanalysis. Developments that discharge to anexisting regional facility can be relieved of on-site infrastructure obligations. Further, thecapacity of regional facilities can be reservedfor developments in particular areas or thatmeet design criteria that more efficiently utilizethe facility.

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The City currently has very detailed standardsfor hydrologic analysis in the DevelopmentProcess Manual. In order to encourage com-pact development, it is important that on-sitedetention or retention does not become stan-dard practice for designated infill developmentor development in urban tiers.14

Programmed Public Facilities:Minimum Requirements forConcurrency

Once the applicable level of service standardhas been identified for purposes of issuingdevelopment approvals and initiating capitalinvestment and budgeting strategies, the deci-sion maker must resolve the issue of when thelevel of service must be attained in order fordevelopment to proceed. There are two typesof facilities that may be considered whenmeasuring compliance with concurrency. Thefirst is existing facilities that are in place at thetime a development application is under con-sideration; the second is programmed facilitiesthat are scheduled for construction but are notalready in place.

The critical policy issue is the amount of “lagtime” the community will tolerate between theconstruction and occupancy of the develop-ment and the availability of the public facilitiesneeded to serve the development. The questionof when public facilities must be available andhow they will be guaranteed is referred to asthe “minimum requirements” for concurrency.The minimum requirements issue is distin-guishable from the level of service that must beattained when those facilities are available.While the adopted level of service standardcould affect the community's policy decisionregarding the minimum requirements imposedfor concurrency—and vice versa—the stan-dards are distinguishable. The former refers tothe capacity and/or quality of the public facil-ities while the latter refers to when the facilitiesmust be available, and, if not presently avail-able, how provision of the public facilities willbe guaranteed at the time of actual develop-ment.

Minimum requirements may vary dependingon the type of public facility. The rationale forvariation is that some facilities are more direct-ly related to public health, safety, and welfarethan others; and some facilities may require alonger or more unpredictable acquisition andplanning process than others. In states withconcurrency legislation, only existing facilitiesmay be considered, with several exceptions,when measuring the public facility capacityavailable to serve a proposed development.Programmed public facilities may, however, beconsidered for certain facilities, such asparks/recreation and transportation facilities.States, such as Florida, provide that pro-grammed facilities may not be considered forthe evaluation of water, sanitary sewer,drainage, or solid waste facilities. No publicfacilities need necessarily be available at thetime of development application so long as theyare available at the time of actual development.If they are not available at the time of develop-ment application, before approving the devel-opment, the community must be satisfied thatthey will be available and adequate (i.e., withcapacity at the time of development) or that thedevelopment approval is conditioned upontheir availability and adequacy at the time ofdevelopment or that their availability and ade-quacy has been guaranteed by the developer(e.g., by the posting of a performance bond orother adequate surety).

Facilities, such as water and sewer, must beavailable at the time of development as a mat-ter of public health and safety. However, ifadequate parks are not available, the develop-ment could be allowed to proceed so long asthere are assurances that the parks will beprovided within a reasonable period of time.

There is a difference between measuring andenforcing compliance with the Adequate PublicFacilities Ordinance requirements. While pro-grammed facilities may always be included inthe measurement of compliance with concur-rency, any facilities used to enforce compliancefor water, sewer, drainage, and solid wastemust be in existence before the impacts of thedevelopment occur. Park and recreation facili-ties, however, may still be in the planning,

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budgeting, or contracting stage at the time theimpacts of the development occur. At earlystages in the development approval process,such as rezoning and preliminary platapproval, the community should consider pro-grammed facilities in the concurrency evalua-tion. However, a condition should be attachedto the development approval requiring specificpublic facilities to be completed before buildingpermits are issued.

A minimum requirements system depends pri-marily on two factors: the stage in the devel-opment approval process at which the pro-posed project is reviewed and the type of pub-lic facility. The first variable relates directly tothe “lag time” issue. If the concurrency deter-mination will be made early in the developmentapproval process, it is not essential that publicfacilities be in existence. The need for publicfacilities to be in place is greatest when theimpacts of the development are imminent,such as at the building permit stage.Consequently, some jurisdictions allow“planned” facilities to be used in concurrencydetermination if such public facilities will be inplace at the specified level of service when theimpacts of the development are felt.

It is logical to consider the capacity of pro-grammed public facilities if concurrency reviewoccurs early in the development approvalprocess because the impacts of the develop-ment will not be felt for several years. Whilethe community could require that all publicfacilities and services needed to serve newdevelopment at the adopted level of serviceexist at the time of development approval, thisapproach could impede development if certainpublic facilities are nearing capacity or are cur-rently over capacity.

If development approval is denied or deferredbecause of the unavailability of public facilitycapacity, the community must show that thepublic facilities forming the basis for the con-currency determination will be provided withina “reasonable” period of time. Unfortunately,case law provides little guidance as to whatconstitutes a reasonable period of time. InGolden v. Planning Board of the Town of

Ramapo, 30 N.Y.2d 359, 334 N.Y.S.2d 138,285 N.E.2d 291, app. diss'd, 409 U.S. 1003(1972), the court approved a concurrency ordi-nance based upon a staged, eighteen-yearCapital Improvements Program that wouldhave deferred some development approvals forthe duration of the plan. In Woodbury PlacePartners v. City of Woodbury, 492 N.W.2d 258(Minn. App. 1992), cert. denied, 113 S. Ct.2929 (1993), the court affirmed the principlethat all use of a property may be denied for atemporary period of time without resulting in ataking. It is unclear whether New Mexicocourts would take such a view. However, itappears that most courts will permit the tim-ing and sequencing of development in order toavoid public facilities problems.

Options When Public Facilities Do Not Meet Level of Service Standards

When public facilities are determined to beinsufficient to accommodate the impacts of aproposed development: (1) building permitsmay be deferred pending the availability ofpublic facilities and services at the adoptedlevel of service, (2) the applicant may agree toreduce the density or intensity of the proposeddevelopment within the parameters of avail-able facility capacity, (3) the applicant mayagree to a phasing schedule, or (4) the devel-oper may agree to provide those public facili-ties needed (or a full payment to constructthese facilities) to attain the adopted level ofservice, provided that they will be availablewhen the impacts of the development occur.The deferral of development approval or theprovision of public facilities by the developercan be addressed through appropriate condi-tions.

When public facilities are determined to beadequate before a final development order isissued, a key question is whether this finding“reserves” the capacity for the development orwhether a new finding must be made at a laterstage in the development approval process. Ifplanned facilities are included in the earlierfinding, it must be specified whether the reser-vation remains valid in the event that the facil-

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ities are not constructed. Reservations ofcapacity must be included in a developmentmonitoring system in order to prevent theover-allocation of capacity. Procedures shouldbe developed to prevent the “hoarding” ofcapacity by approved but unbuilt projects.

Some concurrency ordinances allow develop-ers to construct the necessary facilities andservices needed to reach the adopted level ofservice where the development would other-wise be delayed or denied. If this results in theconstruction of facilities with excess capacity,the developer may receive reimbursement forthe excess capacity when it is allocated toother projects. Thus, where public facilitiesare currently operating below the adopted levelof service, the community has several options:

• Allow the proposed development to pro-ceed if it will not cause the existing level ofservice to be degraded.

• Deny development approval or deferdevelopment approval until the publicfacilities are operating at the adopted levelof service. Thus, development may be delayed until the necessary publicfacilities are scheduled in the CapitalImprovements Program.

• Deny or defer development as providedabove, but allow the developer to con-struct or pay for those public facilitiesnecessary to achieve the adopted level ofservice standard.

• Allow the applicant to resubmit the appli-cation with modifications that wouldreduce the project's demand on the affect-ed facilities, such as a reduction in thedensity or intensity of the development ordemand management strategies, such astransportation demand management (e.g.,ride sharing or vanpooling programs fortraffic) or water conservation measures.The developer would be required to quan-tify the impact of demand-reducing meas-ures on the total demand generated by theproposed project.

In the context of the Planned Growth Strategy,these concepts can be combined with impact

fees (and utility extension charges) to createincentives for infill development and redevelop-ment. Areas defined as Fully Served can pro-ceed with development after paying impact feeswithout a level of service review assuming thedevelopment is consistent with the PlannedGrowth Strategy Preferred Alternative. In thePartially Served Areas, a level of service reviewfor certain infrastructure would be conductedand developments would be staged andsequenced. Developers wishing to proceedahead of the Capital Improvements Programmay advance facilities, as is currently permit-ted in the Line Extension Policy. Where impactfees cannot be charged, either because of statelaw or local policy, development staging canprovide an equilibrium between capacity anddemand until community resources have pro-vided the necessary facilities.

Allocating and Monitoring Facility Capacity

Compliance with the applicable level of servicestandard is determined by comparing the pro-jected impacts of a development project withthe capacity of those public facilities affectedby the project. The following administrativeissues are raised by the methodology for apply-ing adopted level of service standards to appli-cations for development approval:

• How will available capacity be allocatedwhen there is insufficient capacity toaccommodate all developments for whichapplications have been submitted?

• How will capacity be monitored to accountfor (1) additions to capacity from the con-struction of new public facilities, fromchanges in consumer behavior, from proj-ects funded by private developers, and,from changes in demand and (2) subtrac-tions from capacity due to developmentapprovals and/or reservations?

A prerequisite to allocating available capacityis determining how much capacity is availableand how much capacity is used by specifictypes of development. In general, capacity isallocated on a first-come, first-served basis asdevelopment applications are processed.

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However, where available capacity is constrict-ed, the community might consider allocatingcapacity only to those projects that achieveimportant goals and objectives of theComprehensive Plan, that implement thePlanned Growth Strategy Preferred Alternative,or that should be granted preferential treat-ment for hardship or other reasons.

The first alternative for allocating capacitywould be the use of a set-aside. Under thissystem, a percentage of available capacity isreserved for certain types or categories ofdevelopment. For example, in MontgomeryCounty, Maryland, projects defined as afford-able housing may be approved where the avail-able capacity threshold in the applicableimpact area has been exceeded, provided thatsuch projects must be reviewed for theirimpacts on localized facilities (nearby intersec-tions and roadway links). A similar policy isauthorized by New Jersey's Council onAffordable Housing, which administers thatstate's housing policies for local governments.In addition, Montgomery County's programallocates capacity to residential and non-resi-dential projects within each impact area tomaintain a favorable ratio between jobs andhousing. This is accomplished by computing aseparate development threshold within eacharea for employment and housing.

A second alternative would be a “point system”that enables the reviewing agency to balanceconcurrency review with other public policiesand could include a “weighting system” on thecapacity and availability of public facilities forpurposes of concurrency review. For example,the community could assign point scores forthe availability of a specified amount of capac-ity for each public facility and/or for theachievement of other public policies such asthe provision of affordable housing. Thus, aproject that would create a deficiency in onepublic facility, such as transportation, couldreceive approval if a compensating point scoreis achieved for other public facilities and/or forthe provision of other public benefits. Caremust be taken, however, to assure that mini-mum standards are met. A related practice isfollowed in Austin, Texas using the Smart

Growth Criteria Matrix. This system assignspoints to proposed developments based onachieving desirable objectives such as mixeduse, streetscape treatment, transit focus, andso on. Such a matrix could be used in combi-nation with a facility capacity evaluation.15

A point system or set-aside can be tailored in anearly infinite number of ways. Developmentorders can be “batched” during an annual allo-cation process and ranked under the point sys-tem, with development orders issued only tothose projects earning the highest scores. Thetwo alternatives could also be combined. A cer-tain proportion of available capacity could beset aside for those development proposals earn-ing the highest ranking under a point system.

Advancing Facility Capacity

Where public facilities are currently operatingbelow the adopted level of service, developersmay be allowed to proceed with their develop-ment if the facilities needed to attain the levelof service standards and to accommodate themarginal impacts of the proposed developmentare provided. The alternative would be toawait the provision of facilities as scheduled inthe Capital Improvements Program, which mayresult in a delay. Provisions for the advance-ment of public facilities and services are amechanism to alleviate the hardship of unduedelay and have been approved by courts inother states.16 It is probably good public poli-cy to allow developers to advance facilitycapacity in a manner consistent with PlannedGrowth Strategy policies. The advancementpolicy can provide funding for infrastructureand allow developers to proceed with projectapproval. However, developers will have toadvance money for all facilities that are defi-cient for expedited approval to occur. In otherwords, if both water and sewer facilities aredeficient, and the developer provides the nec-essary facilities to meet the level of service forwater but not sewer, building permits will stillbe deferred until sewer facilities are availableat the adopted levels of service. This may dis-courage developers from utilizing this optionexcept where advancement of only one or twopublic facilities is needed.

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If the public facilities are scheduled in thecommunity's Capital Improvements Program,the policy decision regarding the constructionof those facilities has already been made.Therefore, there would be no reason to prohib-it the expedited construction of those facilitiesthrough developer advancements.

Because some facilities, such as water andsewer mains, must be oversized to accommo-date future demands, the question ariseswhether developers who advance such facili-ties should be reimbursed for providing capac-ity in excess of what is warranted by the size ofthe proposed development alone. Many juris-dictions provide a mechanism for reimbursingdevelopers in this situation. In addition, thecorrection of existing deficiencies will by defini-tion exceed the marginal impacts created bythe development proposal. While most juris-dictions provide for reimbursement for over-sized facilities, few address the issue of reim-bursement for correcting existing deficiencies.The community could provide a mechanism bywhich developers would be reimbursed for theuse of excess capacity by subsequent develop-ment projects within the impact area. Impactfees, user fees, or utility fees for the develop-ment of the specific facilities being improvedcould be transferred to the developer as theyare collected. Recommended Planned GrowthStrategy policy supports this approach in thePartially Served Areas.

5.3.2 Varying Level of Service Standards

The community may vary the level of servicestandards applicable to each public facility bygeographic area, over time, or by type of devel-opment project. Level of service standardsmay vary by geographic area in order to allowflexibility in the achievement of other publicobjectives, such as promoting infill develop-ment. Level of service standards may also bevaried by geographic area where substantialdeficiencies exist or where environmental orother constraints prevent facility expansion(these are sometimes referred to as “back-logged” or “constrained” facilities). For exam-

ple, levels of service may be “tiered” over timein order to avoid the effect of an immediate,high level of service on growth and develop-ment in the jurisdiction. To achieve thisresult, one level of service standard can be setfor purposes of review for a specified period oftime subsequent to adoption of the AdequatePublic Facilities Ordinance, with a higher stan-dard taking effect at a specified future date.

A differential level of service standard is one inwhich the level of service varies based upon thelocation of development, the type of develop-ment, or other policy considerations. The mosttypical response is the establishment of higherlevel of service standards in rural areas inorder to discourage sprawl development. Levelof service standards can be adjusted toencourage infill, redevelopment, the produc-tion of affordable housing, or other public poli-cies. However, the level of service standardsmust be justified, be supported by data andanalysis, and bear a rational relationship to alegitimate public purpose.

In Florida, state legislation expressly authoriz-es local governments to establish special areasin which transportation level of service stan-dards will be relaxed in order to encourageinfill development, transportation demandmanagement, public transit, and other perma-nent solutions to the seemingly intractableproblem of traffic congestion in major metro-politan areas.

Transportation Concurrency ManagementAreas are a framework for utilizing concurren-cy management in a manner conducive tomass transit, economic development, and adesirable urban form. While the system couldbe structured in a number of ways, the desig-nation of major nodes and centers could pro-vide a starting point for the designation ofTransportation Concurrency ManagementAreas and allocation of transportation capaci-ty. Identification of regional service levels andregional improvements establishes a regionaltransportation carrying capacity, which is thenallocated to centers as TransportationConcurrency Management Areas. This couldoperate in two different ways. First, the carry-

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ing capacity would establish a ceiling onregional development. This would provide abasis for the allocation of capacity to cen-ters/Transportation Concurrency Manage-ment Areas and would also require the affect-ed agencies to debit capacity utilized in centersfrom the outlying areas. This would assurethat (1) capacity for regional centers is accord-ed a priority for utilization by the businesscommunity and (2) that capacity is taken awayfrom areas where development is assigned alow priority by the public sector, therebyassuring that the goals and objectives of devel-opment in the regional centers are not thwart-ed by competition from outlying areas.Capacity allocated to Transportation Concur-rency Management Areas could be allocated ona first-come, first-served basis or subject tocertain allocation criteria.

Florida, which is the first state in the nation tomandate concurrency, is the only state withspecific requirements for TransportationConcurrency Management Areas.17 As such,its legislation provides a good example of howlevels of service can be varied for transporta-tion requirements. The purpose of theTransportation Concurrency ManagementArea is to promote infill development and rede-velopment. Transportation ConcurrencyManagement Areas must be designated in thelocal government comprehensive plan. Thecharacteristics of a Transportation Concur-rency Management Area relate primarily tourban form rather than location, making theconcept particularly suitable to the desireexpressed during the Town Hall meetings toencourage more compact development infringe areas outside of the City’s 1960 limits.The Transportation Concurrency ManagementArea must have the following characteristics:

• a compact geographic area,

• an existing network of roads, and

• multiple, viable alternative travel paths or modes for common trips.

An areawide level of service standard may beestablished for a Transportation ConcurrencyManagement Area based upon an analysis that

provides a justification for the areawide level ofservice, how urban infill development or rede-velopment will be promoted, and how mobilitywill be accomplished within the TransportationConcurrency Management Area.

To encourage infill, several other provisions ofFlorida’s concurrency legislation supplementthe Transportation Concurrency ManagementArea provisions. First, a proposed redevelop-ment project located within a defined andmapped Existing Urban Service Area (FullyServed Area) is not subject to concurrencyrequirements if the transportation impact ofthe project does not exceed 110% of the trans-portation impact of the previously existinguses.18 This provision increases capacity inolder areas that new development can use.

Second, the legislation provides for concurren-cy exceptions in designated redevelopmentareas. The legislation begins with the followingfinding:

The Legislature finds that under limitedcircumstances dealing with transporta-tion facilities, countervailing planningand public policy goals may come intoconflict with the requirement that ade-quate public facilities and services beavailable concurrent with the impacts ofsuch development. The Legislature fur-ther finds that often the unintendedresult of the Adequate Public FacilitiesOrdinance for transportation facilities isthe discouragement of urban infill devel-opment and redevelopment. Such unin-tended results directly conflict with thegoals and policies of the state compre-hensive plan…. Therefore, exceptionsfrom the Adequate Public FacilitiesOrdinance for transportation facilitiesmay be granted as provided by this sub-section.19

The legislation authorizes a local governmentto grant an exception from transportationAdequate Public Facilities Ordinances fordevelopments that promote public transporta-tion or that are located within an area desig-nated in the comprehensive plan for the fol-

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lowing: (1) urban infill development, (2)urban redevelopment, or (3) Downtown revi-talization.20 These exceptions must considerthe impacts on the Intrastate Highway Systemand are available only within the specific geo-graphic area of the jurisdiction designated inthe comprehensive plan.

Montgomery County, Maryland has also imple-mented a varied level of service concept. Toimplement its growth management policies, anAdequate Public Facilities Ordinance wasadopted in 1973, patterned loosely after theRamapo model. The Adequate Public FacilitiesOrdinance requires an adequacy review fortransportation, water/sewer, schools, andpolice/health clinics at the preliminary platstage. The adequacy review takes into accountapproved but unbuilt projects, and also uses atwo-tiered policy area review and local areareview to limit the geographic service areaswhere level of service standards must be satis-fied. Staging ceilings for population andemployment growth are established through-out transportation policy areas, based onareawide level of service standards. Where thestaging ceiling is exceeded, applications forpreliminary plat approval are denied. Localarea review is triggered when large subdivi-sions are either (1) proposed when total devel-opment in the policy area is within 5% of thestaging ceiling or (2) located near a congestedarea. If local area review is triggered, projectsmay only be approved where peak hour levelsof service would be maintained, taking intoaccount mass transit and developer improve-ments. The Adequate Public FacilitiesOrdinance is monitored annually through theadoption of an annual growth policy in whichvarious political subdivisions of the countyinterested in its enforcement review the stagingceilings and suggest methods for administra-tive reform.

Critical to the Montgomery County program isthe assignment of different levels of service topolicy areas based upon the availability oftransit. Areas that are generally undevelopedare typically assigned a level of service C, whilelower levels of service are assigned in areaswith available transit capacity.

The Maryland Court of Appeals rejected a tak-ings and equal protection challenge to the dif-ferential assignment of level of service by poli-cy area in Schneider v. Montgomery County,No. 683 (Court of Special Appeals, September1991) (unpublished). The plaintiff argued thatit was arbitrary to deny plat approval in areaswith 45% of capacity unused, while approvingdevelopment in areas with only 12-23% ofcapacity unused. The court rejected this argu-ment, relying on the County’s finding that it isappropriate to permit greater congestion inareas with alternative modes of travel.

5.3.3 Applying the Concepts

In Albuquerque/Bernalillo County, an Ade-quate Public Facilities Ordinance would beestablished within the land development regu-lations of participating jurisdictions. Theseregulations include both zoning and subdivi-sion regulations. Details about how level ofservice standards are interpreted may beadded to the Development Process Manual. Ifthe ordinances are combined into a UnifiedDevelopment Code or a Unified RegulatingCode, the technical details can be specified inan Appendix to the ordinance.21

Jurisdictional issues include the issue ofannexation, which extends the AdequatePublic Facilities Ordinance policies into previ-ously unincorporated territory, and interjuris-dictional cooperation.

While the major policy issues associated withstructuring an Adequate Public FacilitiesOrdinance have been discussed earlier, inter-jurisdictional cooperation between the City,the County, and other cities and towns withinthe urban area would improve the effective-ness of the system.

The New Mexico statutes authorize severalmethods of annexation: (1) the arbitrationmethod;22 (2) the boundary commissionmethod;23 (3) the petition method;24 and (4) bypetition in Class A Counties in limited situa-tions.25 In 1998, the state legislature estab-lished a procedure for referral of annexations inBernalillo County to the County Commission for

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comments prior to approval by the City Council.Within Class A counties, the petition to the CityCouncil or petition to the district court are themethods authorized for most annexations.26 Inthose counties, the boundary commissionmethod is only allowed when the territory to beannexed is outside a conservancy district.27

Criteria relating to the provision of public serv-ices within a reasonable period of time are inte-gral to all of the annexation methods availableunder New Mexico law. However, there is littleguidance for the City Council or the courts torefer to in determining whether public facilitieswill, in fact, be available within a reasonableperiod of time. Establishing strong policies inthe Adequate Public Facilities Ordinance thatdefine the issue of when public facilities areconsidered available will help to resolve thisissue absent, as is the situation at present, ajudicial definition of reasonableness.

Under the petition method, the City alreadyexamines public facilities issues during theannexation process pursuant to the City’sannexation policy (Resolution 54-1990) andthe Development Process Manual, Chapter 10(applications for annexation approval). TheDevelopment Process Manual applies the fol-lowing criteria for the Central Urban,Established Urban, and Developing UrbanAreas related to requirements on the applicantand the ability of the City to reject the annexa-tion petition:

• Anticipated delay in provision of Cityservices is so far into the future as to bespeculative and therefore an unreason-able basis to provide for annexation.

• Compliance with City policy regardingland dedication for public facilities isassured.

• The applicant shall agree in writing totiming of capital expenditures for neces-sary major streets, water, sanitary sewer,and storm-water-handling facilities.

• The City may decline an annexation if …the City concludes that it would beunreasonable to make land owners wait

for basic utilities and facilities as long aswould probably be the case.28

While these criteria are good statements of pol-icy, they provide no direction as to how thetiming and availability of facilities is to bejudged or how the capacity of facilities is to bemeasured. Further, there is no formal linkageto the City’s Capital Improvements Program.An Adequate Public Facilities Ordinance offersthe precision needed to resolve these issues.In addition, the level of service concept pro-vides a basis for working proactively with theCounty and landowners to encourage annexa-tion where facilities can be efficiently provided.

The ordinance should also address the types ofpermits subject to Adequate Public FacilitiesOrdinances. These may include the followingrequirements of the Zoning Code andSubdivision Regulations:

• Zoning Map Amendments.29

• Sector Development Plans or SectorDevelopment Plan Amendments.30

• Special Exceptions, which includeConditional Uses, Variances, andNonconforming Use Expansions.31

• Sketch Plats.32

• Preliminary Subdivision Plats.33

• Final Subdivision Plats.34

Adequate Public Facilities Ordinance require-ments appear to fall within the state subdivi-sion enabling legislation. This legislation pro-vides broad authority for subdivision regula-tions. Under this legislation, subdivision regu-lations may provide for: the harmonious devel-opment of the municipality and its environs;adequate open space for traffic, recreation,drainage, light, and air; the distribution of pop-ulation and traffic that tend to create condi-tions favorable to the health, safety, conven-ience, prosperity, or general welfare of the res-idents of the municipality; land use, includingnatural drainage; and other matters necessaryto carry out the purposes of the MunicipalCode.35

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PLANNED GROWTH STRATEGY FREILICH LEITNER & CARLISLE188

An Adequate Public Facilities Ordinance wouldalso seem to fall within the purview of a localgovernment’s zoning authority. Municipalzoning may be used, inter alia, to lessen con-gestion in the streets and public ways; facili-tate adequate provision for transportation,water, sewerage, schools, parks, and otherpublic requirements; and to promote healthand the general welfare. Similar language wasused to sustain the Adequate Public FacilitiesOrdinance upheld by the New York Court ofAppeals in Golden v. Town of Ramapo, supra.

Review for compliance with public facility stan-dards is generally recommended for discre-tionary permits that occur early in the devel-opment approval process, rather than ministe-rial permits that occur late in the approvalprocess. This allows the developer input as tothe availability and capacity of public facilitiesprior to the commitment of significantresources towards final development approval.Requiring compliance late in the process cre-ates uncertainty in the approval process.Accordingly, it is recommended that review forcompliance with level of service standardsapply to any rezoning/Sector Plan amend-ment, special exception, and preliminary plat.The Adequate Public Facilities Ordinancereview should not apply to final plats, althoughfinal plats may be staged and sequenced inaccordance with an approved preliminary plat.

The Adequate Public Facilities Ordinance reviewshould also occur during the plan reviewprocess for Planned Communities in Compre-hensive Plan Rural and Reserve Areas. AnAdequate Public Facilities Ordinance analysisshould apply to any plan designated as Rank 2(Level A Community Master Plan) or Rank 3(Level B Village Master Plan). A more detailedanalysis should apply to any Neighborhood Plan(Level C Subdivision/Site Plan).

In addition to the permit approval process, theCity and County should revise their CapitalImprovements Program requirements to con-form to the Adequate Public FacilitiesOrdinance. The cost, source of funds, comple-tion dates, and priority of Capital Improve-ments should continue to be included pur-

suant to § 2-12-1(B) of the City Code.However, the capacity and the impact on theadopted level of service should also be part ofthe data for each capital project.

5.4 Locational CriteriaIn order to fold concurrency into an overallPlanned Growth Strategy framework for theregion, a unifying framework is needed for theapplication of level of service standards to dif-ferent parts of the Albuquerque/BernalilloCounty region. Such systems provide methodsfor establishing variable level of service stan-dards as well as ancillary community designand zoning regulations. This type of systemprovides a common thread for the variety ofimplementation measures that will be requiredthroughout a diverse metropolitan area such asAlbuquerque/Bernalillo County. The types ofsystems that may be used include urban growthboundaries, urban service areas, and tier sys-tems. These systems are described below.

5.4.1 Urban Growth Boundary

Adoption of a fixed long-term geographicrestraint, called an Urban Growth Boundary,requires that the community, through a com-prehensive planning process involvingdetailed, well-documented growth projections,establish a perimeter or a boundary beyondwhich urban scale development is prohibited.This perimeter should be incorporated into thecomprehensive plan as a fixed line during thelife of the plan. It should be supported byplanning studies that demonstrate the desir-ability of areas within the perimeter for theextension of municipal services, such asstreets, sewers, and water, and the inability orundesirability of servicing areas beyond thelimit line. Implementing regulations are thenadopted that limit development outside theperimeter to rural uses and densities that donot require urban facilities and services.These are often termed “urban limit lines.”

5.4.2 Urban Service Areas

A temporary boundary may be used to identifyareas not to be serviced within the next 10–25

FREILICH LEITNER & CARLISLE PLANNED GROWTH STRATEGY 189

years based on the capital program and thecomprehensive plan. Growth may then bemanaged through phased service extensions todesignated short-term priority areas allowingthe community to harmonize short-rangeneeds with long-term goals. This system ismore common than urban growth boundariesand differs from urban growth boundaries inthat development is controlled through theorderly extension of public facilities and servic-es rather than through regulatory measures.

5.4.3 Tiers

The tier system is an approach for structuringgrowth management systems by geographicareas as a refinement of Urban Service Areas.Although not an implementation technique inthe same sense as others described in thischapter (e.g., Adequate Public FacilitiesOrdinances), it is an extremely useful mecha-nism that establishes a framework for deter-mining which of the varied techniques shouldbe used to achieve growth management in dif-ferent areas of the community.

A principal tenet of this system involves thegeographic and functional division of the plan-ning area into subareas (“tiers”). The function-al planning area concept recognizes that differ-ent areas of the community present differentproblems relating to growth and development.Nevertheless, while individual geographical orfunctional areas may need to be separated forspecialized treatment, they must still be viewedin terms of their interrelationships with otherareas and with the community as a whole.

A framework for a growth management systemthat allows for major problems to be addressedon a communitywide basis aids local govern-ments in planning for future growth and inunderstanding the interrelationships between,and implications of, varying growth policies,goals, and implementation techniques. Abreakdown into functional and geographicareas allows planning entities to describe goalsand objectives in terms of such areas, to eval-uate market forces and growth trends selec-tively for each area, and to consider implemen-tation techniques that are specific for each

area. Thus, goals that would be competing orconflicting when applied uniformly can be har-monized when viewed selectively by subarea.For example, preservation of agricultural landin selected areas of the community can becompatible with increasing housing opportuni-ties in other areas. Further, the implementa-tion techniques that may be associated withthese goals can also be harmonized and vali-dated within the tier framework. The tiersshould be descriptive of the existing data andstructure of the area and be capable of func-tioning as planning and plan implementationunits. The tier delineation allows the goals andappropriate techniques employed in a urbangrowth management system to vary with thegeographic or functional subunits of the plan-ning jurisdiction. Such flexibility is essentialto the future success of such systems becauseit provides for articulation of different, andeven contrasting, strategies for different areasof the community, with corresponding legaltechniques and implementing mechanisms,without jeopardizing the overall comprehen-siveness of the system or any of its individualcomponents. Equally important, a tier systempermits the courts to adopt the same analyti-cal framework for their review of the legal valid-ity of the system and its component parts.

As stated, the fundamental premise of the tierdelineations is that the community can bedivided into geographical subunits based uponfunctional distinctions within the growth man-agement system. This is quite different from adivision of a city into neighborhoods since theirboundaries correspond to data collectionunits, streets, topography, and other criteria.The functional delineations of the tier system,however, do relate strongly to the goals andobjectives to be achieved through the growthmanagement system.

A growth management system should recog-nize the concepts of “growth” areas and “limit-ed growth.” The typical tier system divides thecommunity into “growth” and “limited growth”categories and adds the tiers as subdivisions ofthose general categories. Tiers within thegrowth category are commonly designated“Urbanized” and “Planned Urbanizing.” The


tiers within the limited growth category would be “Rural/Future Urbanizing” and“Conservation/Open Space.” Each of the tiershas specific geographical boundaries andwould be capable of being mapped. In thePlanned Growth Strategy, these are associatedwith the tiers called Fully Served (“Urbanized”),Partially Served (“Planned Urbanizing”) andUnserved (“Rural/Future Urbanizing”).

The Urbanized tier would consist of those areasthat are largely built-out and almost complete-ly served by public infrastructure (i.e., FullyServed Areas). Recognizing that this definitionincludes areas for which different growth man-agement strategies may be desired, the tier maybe further subdivided into two subareas: thosethat have suffered population losses and thosethat have increased in population.

The Planned Urbanizing area would representthe “new” growth area (i.e., Partially ServedAreas). It, too, can be subdivided. One sub-area would consist of those lands that are par-tially developed but that are distinguishedfrom the Urbanized area by having a less denseoverall population. The second subarea con-sists of those lands that the community wantsto target for growth but are mostly vacant atpresent. The targeted areas are defined oncethe community has selected a developmentscenario for this purpose, but might possiblyconsist of transportation corridors, develop-ment “nodes,” activity centers, planned com-munities as broadly defined in the PlannedGrowth Strategy, and Traditional Neighbor-hood Developments.

The Rural/Future Urbanizing area may be apermanent rural density development area ormay be a temporary holding zone until thegrowth areas are built out. The Rural/FutureUrbanizing tier generally contains lands thatare presently unserved and that have a lowerpopulation density or no population.

The Conservation/Open Space tier consists oflands containing environmentally sensitiveareas or public open space.

Transportation corridors, as areas that wouldbe targeted for future growth, can be integrat-ed into the framework by inclusion in the areamapped and designed as Urbanized andPlanned Urbanizing. Transportation corridorscan be separately mapped and may overlay thetier delineations. In a typical community,transportation corridors pass through morethan one tier and therefore may require theuse of differing techniques. For instance, tech-niques utilized in transportation corridors inthe Urbanized tier will likely have a redevelop-ment/infill focus while techniques utilized intransportation corridors in the PlannedUrbanizing area would likely consist ofadvance acquisition and the like.

The transportation corridor reflects a far broad-er concept than a mere highway system, bothin terms of geographic configuration and func-tion. The corridor is a mapped area whose cen-tral focus is a proposed or existing transporta-tion facility, including, but not limited to, a sec-tion of the regional or arterial roadway system,a high-speed rail line, or other similar facility.The boundaries of the transportation corridorshould be established, based upon sound plan-ning and study, to include not only all rights-of-way necessary to meet projected facilitydemands but also the entire area that isdeemed to be impacted by the facility at its ulti-mate capacity. Functionally, the transporta-tion corridor is more than an area between twopoints used for the movement of people andgoods. Each corridor is a nexus for major com-mercial, office, industrial and/or high-densityresidential development. As such, the physicalextension of such corridors into FutureUrbanizing Areas should be avoided until con-sistent with the desired timing and phasing ofsurban growth. A transportation corridor maybe an appropriate recipient of transfers ofdevelopment rights from noncorridor areas thatcan then be preserved or land assembled. As aresult of higher densities, multi-modal trans-portation systems, including high-speed andmass transit, may become viable.


5.4.4 Applying the Concept

Urban Growth Boundary systems have someappeal because they are simple and moreresistant to political persuasion. A tier systemis a more sophisticated implementation of theUrban Service Area concept and is more adapt-able because it takes into account the complex-ities of the Planned Growth Strategy concepts.

The tier system is consistent with the PlannedGrowth Strategy for several reasons. First, thebroad structure of the systems conforms to thePlanned Growth Strategy areas: “Urbanized”to “Fully Served Areas”; “Planned Urbanizing”to “Partially Served Areas”; and “Rural/FutureUrbanizing” to the “Unserved” areas.

Second, the Planned Growth Strategy hasdivided the City into 14 subareas within thePlanned Growth Strategy study area. ThePreferred Alternative allocations of populationand employment to these areas and the qualityof life and future development goals for themcould provide a useful basis for establishing dif-fering policies for zoning, subdivision improve-ment requirements, level of service standards,redevelopment incentives, and so on.

Third, the Planned Growth Strategy has prior-itized corridors and centers within thePreferred Alternative as targets for futuredevelopment. As mentioned above, thesemight be subject to different policies for zon-ing, level of service standards, vested rights inthe development approval process, and so on.

Forth, the City has defined 10 CommunityPlanning Areas in the urban area that ulti-mately may have different priorities for growthand development.

5.5 Community DesignFrom regional, macro-level urban policies,implementing regulations needed for thedesign of new development and redevelopmentprojects must flow. While much effort hasbeen invested in the identification of regionaland communitywide growth issues, these ben-efits will be lost if not translated into tangible

improvements in the built form of the urbanarea. For example, renowned New Urbanistarchitect Andres Duany observed the followingabout Portland’s noted urban growth bound-ary system during a visit:

That as soon as one left the prewarurbanism (to which all my prior visitshad been confined) the sectors all theway to the urban boundary were chockfull of the usual sprawl that one finds inany American city, no better than inMiami. So the outcome wasn’t that dif-ferent after all, in Portland most of theprewar urbanism is excellent and most ofthe postwar version is junk. What wasmissing in the new areas was the tradi-tional neighborhood structure of mixed-use, inclusive housing and walkablestreets.36

The use of variable levels of standards makesmore sense for some types of facilities thanothers. For water and wastewater facilities, forexample, the demands created per unit ofdevelopment may or may not vary by location.For storm water management, lower dis-charges may be presumed for cluster or con-servation subdivisions that utilize low-impactdevelopment practices.37 Variable levels ofservice are used most effectively with trans-portation facilities. The impact of developmenton transportation facilities varies significantlywith the location and design of new develop-ment, and this relationship is documented.Moreover, this relationship blends well withthe policies emerging from the Planned GrowthStrategy process. Development practices thatwarrant variable level of service are describedin greater detail below.

5.5.1 Transportation

The design and form of new development has asignificant influence on travel modes and theimpacts of new development on roadwaycapacity. Some of these studies are summa-rized below.

A comparative analysis of 12 metropolitanareas by Robert Cervero showed that walking


and cycling consistently declined throughouteach area but that more than 15% of all jour-neys to work were by nonvehicular modes.38

Cervero recommends that sidewalks, trails,and pathways be coordinated with a larger sys-tem and not end abruptly.39 While less than1% of all trips in the nation are by walking andcycling, office parks with integrated pedestriansystems and on-site amenities such as show-ers can increase bike travel to 3–5%.40 He sug-gests that the impact is more meaningfulwhere employees are concentrated within 1–3miles of the employment center. He reportsthat 20% of the workers at the Xerox researchfacility in Silicon Valley commute by bicycle.41

Cervero has further documented how lack ofdesign amenities often discourages pedestrianand bike travel in suburban employment cen-

ters.42 Most walk trips in suburban employ-ment centers are for nonwork purposes, com-prising 21.5% of these trips. Foot travel is dis-couraged by long blocks, disconnected side-walks, and limited mid-block crosswalk oppor-tunities. Consumers are more likely to walk onavenues with shops, parks and other interest-ing destinations where a number of trip pur-poses can be accomplished.43

In an extensive summary of research on theissue, Reid Ewing has compiled a listing ofpedestrian and transit-friendly features thatare summarized in Table 44.44

The literature also provides support for the tripreduction potential of walkable communitiessuch as Traditional Neighborhood Develop-ments . There are few empirical studies due tothe lack of well-established new communitieswith a New Urbanist design emphasis. A studyof traditional and modern conventional subdi-visions in Austin, Texas found that personswalked to the store six times more in tradition-al subdivisions than in modern conventionalsubdivisions, and the walk trips were a substi-tute for driving trips.45 A study by 1000Friends of Oregon demonstrated substantialreductions in vehicle miles traveled and tripsbased on four “Pedestrian EnvironmentalFactors”: (1) Ease of street crossings, (2) side-walk continuity, (3) local street characteristics(grid vs. cul de sac), and (4) topography. The

Buildings oriented to the street with frequentopenings encourage walking and transit use

(right). Blank walls discourage walking (left).

study demonstrates that vehicle trips perhousehold decline as much as 30% withincreases in Pedestrian Environmental Factors(Chart 6).46

A study by Susan Handy indicated that resi-dents in an older community in the SanFrancisco area walked to the supermarket

more, with the pedestrian mode share at 8%.47

Other studies demonstrate trip reductions formixed-use/transit-oriented/New Urbanistdevelopment.48 Some studies have shown thatmixed-use development can reduce trip gener-ation rates by as much as 25%.49 An AmericanSociety of Civil Engineers simulation studyestimated that Traditional NeighborhoodDevelopments produces 57% of the vehiclemiles traveled of a conventional suburbandevelopment, with a 9.78% reduction in vol-ume to capacity for arterials (0.83 v. 0.92), a7.45% reduction for collectors (0.87 v. 0.94),and 4.55% reduction for local streets (0.22 v.0.21).50 Further, conventional suburbanneighborhoods were found to have trip rates60% higher than traditional neighborhoods inSan Francisco Bay area.51 A study by Handyin San Francisco was inconclusive about sub-stitution, but later studies by her in Austinconfirmed that many walk trips do substitutefor car trips. Other studies have documentedthat residents of older neighborhoods travelless in terms of mileage and number of trips.52

5.5.2 Applying the Concepts

Several principles apply to the practice ofassigning a level of service to developmentswith preferred design characteristics. First,the applicable level of service should be definedby area. For example, an exemption could beapplied to Major Activity Centers, with level of

service D, E, or F applicable toCommunity Activity Centers orRural Village Centers. This con-cept is discussed in greater detailin Section 5.3 relating toAdequate Public Facilities.

Second, a design package or “UsePattern” needs to be identified,with the design characteristics ofpedestrian or transit-friendlydevelopment identified. Thedesign guidelines should provideclear guidance as to fundamentaldevelopment criteria, includingthe following:

• Size and Location of Site

• Uses and Density

• Adequacy of Public Facilities

• Lot Layout

• Design

• Transportation

• Stormwater Management

• Utilities

• Parks and Open Space

• Natural Resource Protection

• Landscaping/Buffering

• Parking

Local examples of some of these conceptsinclude the design guidelines for the WestSide53 and the Design Standards andGuidelines for Downtown Central Avenue54 inthe context of more established urban areas.These criteria should be clear and free of regu-latory ambiguity. In addition, they should bewritten in a manner that permits some degreeof design flexibility. Discretionary approvalswith extensive or unpredictable approval

Chart 6 Daily Vehicle Trips by PedestrianEnvironment Factor



processes can discourage development inareas where development is needed.

Finally, transit facilities should be given con-sideration in level of service review. Transitmay be considered as a substitute for roadwayfacilities. Further, the availability of transitcan be used to reduce roadway demands dur-ing the traffic impact analysis. The combina-tion of these approaches can provide a moreacceptable phasing schedule for developerswhere roadway facilities are constrained andcan also reduce the cost of advancing facilitieswhere such arrangements are desired.

5.6 Legal and Policy Changes

5.6.1 General Considerations

Implementation of an effective tiered levels ofservice criteria will require a fundamentalrethinking of how transportation capacity isdefined vis-a-vis various modes of transportation(e.g., between transit and roads), and allocated—both on a geographic basis and between types ofdevelopment. The first step involves the estab-lishment of regional service levels and resultingconstraints on land use based on those improve-ments. Identification of regional service levelsand regional improvements allows the affectedentities to establish a regional carrying capacity,which is then allocated to subareas.

The subarea allocation could operate in the fol-lowing way. The carrying capacity wouldestablish a ceiling on regional development.This would provide a basis for the allocation ofcapacity to subareas and would also requirethe affected agencies to debit capacity utilizedin centers from the outlying areas. This wouldassure that: (1) capacity for developmentdesired by the public is accorded a priority forutilization by the business community and (2)that capacity is taken away from areas wheredevelopment is assigned a low priority by thepublic, thereby assuring that the goals andobjectives of development are not thwarted bycompetition from outlying areas. Capacitycould be allocated to priority subareas on afirst-come, first-served basis or subject to cer-tain allocation criteria.

While development within TransportationConcurrency Management Areas might exceedthe carrying capacity of arterial and collectorroadways, it is assumed that the trips couldoccur on streets or on transit.55 Because thecommunity wants transit capacity to be uti-lized, there is little concern that more transitcapacity might be consumed than what mightbecome available. This scenario would providea justification for further investment in transit.Just as suburban decentralization has histori-cally created the market justification for theexpansion of freeways, the situation could bereversed to the point where the key stakehold-ers begin to demand—and support the neces-sary revenue increases—for increases in tran-sit capacity.

Allocation of Carrying Capacity

The alternatives are using: (1) allocation crite-ria or (2) a first-come, first-served system. Theestablishment of allocation-based criteria canprovide an effective tool to encourage the typeof growth desired by the community. However,it carries an administrative burden not foundwith first-come, first-served systems. In addi-tion, other parts of the local governments’ landuse codes would impose transit-oriented devel-opment, mixed-use zoning regulations, andother regulatory criteria in these areas.

The first-come, first-served system allowsdevelopers in preferred areas (i.e., Transporta-tion Concurrency Management Areas) to takecapacity without additional regulatory require-ments. To assure that development taking thiscapacity is the type of development desired bythe community, New Urbanist design orTransit-Oriented Develop-ment zoning regula-tions will provide a precise visual outcome fordevelopment proposals. In order to assurethat all Transportation Concurrency Manage-ment Area capacity is not allocated to employ-ment generators or to residential uses, the Cityand County could set aside part of the capaci-ty to employment and part to residential—as inMontgomery County.


Accordingly, the following steps can be under-taken to implement a variable level of servicesystem:

1. Identify the overall development ceiling.

2. Identify existing employment destinationsand residential uses in TransportationConcurrency Management Areas—thisassures that the system does not reinforcecurrent imbalances with respect to jobsand housing.

3. Based on #2, identify—on a geographicbasis—where current deficiencies exist interms of jobs and housing. In otherwords, where are jobs and housing need-ed in order to achieve a balance? Howmuch is needed?

4. Allocate the capacity identified in #1 to theareas identified in #2.

5. If any capacity is left over after #4, allo-cated it equally between jobs and housing.

Several issues have been raised about thisapproach that merit discussion. First, will thereallocation of systemwide capacity from areaswith excess capacity to areas that lack capaci-ty produce a change in real peak hour trafficconditions? For example, the Northwest Mesahas limited roadway capacity, while theSouthwest Mesa has some excess roadwaycapacity. Will allocating capacity from onearea to another cause these roadway condi-tions to change?

The answer is that changes cannot be expect-ed immediately. Instead, the system simplyrecognizes that there are situations wherelower roadway service levels are appropriate forpolicy reasons as well as physical and financialconstraints. By assigning lower roadway levelof service to these areas, capacity is freed fornew development. Over time, a developmentpattern will shift to reflect system capacityconditions within areas. It is also important tonote that the perceived restrictions on existingcapacity are a function of present standardsand procedures for measuring capacity. Thesolution lies in the standards adopted for eacharea and defining the extent of each area overwhich a level of service is assigned.

In areas where the local government cannotexpand capacity due to physical, financial, andpolicy constraints and where further growth isdesired, a lower level of service must be toler-ated. The alternative is to assign an unrealis-tic level of service, producing needlessly expen-sive improvements and, perhaps, roadwayimprovements that are detrimental to commu-nity character. Conversely, a higher level ofservice can be assigned in areas that are cur-rently undeveloped, again for policy reasonsand to reflect the ability to control the relation-ship between traffic volumes and capacity.

Second, how is the system implemented? Donew permits cease to be issued in areas wherepeak hour volume-to-capacity ratios exceed1.0? This question is addressed in Section 5.3“Options When Public Facilities Do Not MeetLevel of Service Standards.” The City andCounty can use a variety of options to avoiddevelopment moratoria in areas where capaci-ty is constrained. These include:

• Adopting a lower level of service that morerealistically reflects traffic conditions andthe City’s and County’s abilities to correctthem.

• Applying a uniform phasing schedule fornew development where capacity isunavailable, in order to allow a reasonableuse of property to be made.

• Allocating growth using permit allocationsystems or density allocations.

Third, would the system implicitly demandthat more funds be spent in areas that havehigh volume to capacity ratios instead ofdirecting a higher percentage of growth toareas with lower volume to capacity ratios? Inother words, would revenues be diverted inorder to provide for the build out of land at theperiphery? This is a troublesome questionwith most adequate public facilities ordi-nances, and it is precisely the situation thatvariable level of service standards avoid. Ahigher level of service in developing areas,which typically have lower volume to capacityratios, creates a lower margin of capacity forgrowth. While there will be pressure to providefunding for capacity in these areas, such pres-

196 PLANNED GROWTH STRATEGY FREILICH LEITNER & CARLISLE

sure already exists. The variable level of serv-ice approach simply allows the City andCounty to address their expenditures in acomprehensive manner, with a uniform frame-work for evaluating new expenditures and anygrowth-inducing impacts.

It is important to note that a fundamentalpremise of a concurrency-based system is thatpublic improvements are phased andsequenced based on the financial capacity ofthe local government. Neither the courts northe New Mexico legislature have provided atime period by which improvements must beavailable. Accordingly, capacity shortfalls indeveloping areas can be addressed over a rea-sonable period of time. In determining theappropriate time period, the City and Countycan properly determine the impact of buildingnew capacity to serve growth on their financialcapacities to address rehabilitation and defi-ciency needs. A reasonable equilibriumbetween these objectives can avoid the diver-sion of funds from rehabilitation and deficien-cy-related improvements.

5.6.2 Revisions to CapitalImprovements Program Ordinances

The City’s Capital Improvements ProgramOrdinance already contains several provisionsnecessary to implement an Adequate PublicFacilities Ordinance or tiered level of servicepolicy. However, several changes should beconsidered in order to strengthen the program.First, the ordinance provides several usefulitems of information to be included as part ofthe plan preparation process. These includethe following56:

• The anticipated capital cost of each proj-ect;

• The anticipated source of capital funds foreach project, e.g., General Obligationbonds, Enterprise Fund, Gross ReceiptsTax, and so on;

• The estimated annual operating cost orsavings for each project;

• The estimated completion date of eachproject;

• The adopted plan or policy, if any, whicheach project would help to implement;

• The viable alternatives that were consid-ered for each project and the reasons theproposed project is the most cost-effectiveand practical alternative for meeting thestated objective;

• The project's ranking in whateversequencing/priority-setting system isused as a basis for proposed program-ming; and

• The impacts of proposed capital improve-ments on user rates (for Enterprise Fundprojects).

The City’s 2001 Capital ImprovementsProgram indicates that the actual implementa-tion of these requirements should be strength-ened in the future.

In addition to this information, the CapitalImprovements Program should also includethe following information:

• The Capital Improvements Program mustbe an inclusive plan that indicates howthe community’s goals and the urbangrowth strategy will be achieved throughspecific capital projects that are fundedthrough a combination of fundingsources. The actual programming ofGeneral Obligation and Enterprise Fundcapital expenditures should become a sec-ondary focus within this broaderapproach;

• In order to implement this approach, spe-cific capital projects rather than generalprograms must be appropriated funds inthe Capital Improvements Program;

• The service areas accommodated by theproposed facility;

• The present level of service with the serv-ice;

• The level of service that will result aftercompletion of the improvement (based on


current population and employment pro-jections);

• The relationship of level of service capaci-ty in subareas to the forecasts of popula-tion and employment in the PreferredAlternative;

• The relationship of level of service capaci-ty to the Planned Growth StrategyPreferred Alternative development goalsrelated to centers, corridors, redevelop-ment of older neighborhoods, plannedcommunities on the fringe and elsewhere,economic development, and so on;

• All capital funding sources must beincluded in the Capital ImprovementsProgram including estimated federal andstate grants especially used to fund infra-structure, parks, and human servicesfacilities; and

• Whether the facility is needed to accom-modate new growth, provide for rehabili-tation or renovation, or correct existinginfrastructure capacity deficiencies. PastCity Capital Improvements Programs indi-cate that these definitions, althoughrequired, are not uniformly applied toprojects.

The City has already moved in this direction by providing priorities for maintenance andrehabilitation and the extension of facilities to activity centers in its 2000 resolution pro-viding priorities for the 2001/2002 CapitalImprovements Plan.

The Capital Improvements Program Ordinanceprovides that the City Council establish policyguidelines for the Capital ImprovementsProgram on a biannual basis.57 As written,these policies can change widely with succes-sive City Councils without reference to adopt-ed plans or core principles. This provisionshould be revised to incorporate the principlesof the Planned Growth Strategy and theAdequate Public Facilities Ordinance, so thatrequests for infrastructure improvements willhave a predictable and sound policy basis.

The degree to which changes in the capitalimprovement budget will affect capacity within

the service areas should also be reflected in theMayoral authority to amend budgeted capitalimprovements.58 The degree to which anychange in a budgeted improvement affects theavailability of capacity within a service areashould be included within the scope of permis-sible changes and should also be reportedwhen the change is approved.

The County’s Capital Improvements ProgramOrdinance is more general in nature andprocess focused. It contains the following use-ful elements: conformance of capital projectsto adopted plans, ordinance, policies anddefined community goals; and the cost andsource of funding for each project. TheCounty’s Capital Improvements Program alsois reviewed by the County PlanningCommission (as is the City’s).59 While the samegeneral recommendations are appropriate forthe County as for the City, the critical issue isaligning and coordinating (and perhaps com-bining) the City’s and County’s capital pro-grams to implement the Planned GrowthStrategy Preferred Alternative and achievecommon community goals and objectives.

5.6.3 Line Extension Policy

The City water and sewer utility’s LineExtension Policy is addressed primarily to thedistribution of financial costs when water andsewer facilities are extended.60 It is not a con-currency policy, although individual sectionsof the resolution indicate that service wouldnot be expanded if it would exceed the capaci-ty of the system.61 In addition, as with manyconcurrency/Adequate Public FacilitiesOrdinance systems, developers are permittedto “advance” capital improvements subject toreimbursement.62

Within the context of the location-specificPlanned Growth Strategy policies, water andsewer systems do not lend themselves to vari-ations in level of service to the same extent astransportation facilities. While the demand fortransportation facilities may vary depending onthe location and design of a proposed develop-ment, the same is not necessarily true of wateror sewer systems. While xeriscaping and other


water conservation measures can reduce thedemand for water and sewer facilities, thesemeasures do not necessarily depend on thelocation of development.63 The decentralizednature of potential arsenic treatment will havea varying cost by location.

The application of an Adequate PublicFacilities Ordinance can, however, varydepending on the location of new development.In other words, while the Adequate PublicFacilities Ordinance would assume that allnew development consumes the same amountof water or produces the same amount ofwastewater regardless of its location within oroutside of a center or corridor, the areas with-in the Fully Served Area tiers could be exemptfrom concurrency review based upon the exist-ing availability of water and sewer service. TheAdequate Public Facilities Ordinance wouldthen apply only to the Partially Served tiers,with the Line Extension Policy applicable onlyto these areas.

This leads to several concrete changes neededin the Line Extension Policies. First, the exten-sion of facilities should be permitted only whenconsistent with the City/County Compre-hen-sive Plan, Planned Growth Strategy policiesrelated to the Preferred Alternative and area,sector, or corridor plans.64 This approach isincomplete in that the City/County Compre-hensive Plan does not, and the area or corridorplans might not, provide the level of specificityneeded to determine whether an expansion ispermitted. Accordingly, a Planned GrowthStrategy Preferred Alternative map should beadopted as part of the ordinance that bridgesthe system expansion policies of the water andsewer master plans with the Planned GrowthStrategy.

Second, the Line Extension Policy would apply only to the Partially Served Areas.Development in the Unserved Areas would beaddressed through separate developmentagreements consistent with Planned GrowthStrategy policies. Development agreements canbe used to negotiate reimbursement schedulesthat are not subject to rational nexus review.

There may be situations where it is to thedeveloper’s advantage to negotiate an oversiz-ing arrangement without reimbursement.

Third, while this practice is being followed bythe utility, the Line Extension Policy shouldexpressly provide that facilities will not beextended if the proposed development wouldcause the capacity of Major Facilities withinthe service area to be exceeded. “MajorFacilities” are defined in the Line ExtensionPolicy as “reservoirs, wells, pump stations,master plan lines, lift stations, water and liq-uid waste treatment facilities.” This should betied to a baseline for measuring demand as setforth in the policy. A cross-reference to the cri-teria established in Chapter 24, § 2 (sewerfacility engineering criteria) and Chapter 25, §2 (water facility engineering criteria) shouldsuffice.65 All major facilities, not just distribu-tion and service lines, should be subject to thesystem design standards. A system for track-ing other approved developments should bedeveloped as part of the policy so that capacityis not over allocated.

Fourth, the City should revisit the issue ofreimbursement where master plan improve-ments are advanced pursuant to the LineExtension Policy. Rational nexus principlesannounced in impact fee cases around thenation do not require the City to reimbursedevelopers for capacity needed to accommo-date their own impacts. Neither should theutility forego the collection of Utility ExtensionCharges revenue for system improvementsthat the developer has not provided. Forexample, the developer may construct part of asewer interceptor with capacity in excess of hisproject’s needs, but no improvement was madeto the wastewater treatment plant. At present,however, all sewer Utility Extension Chargesrevenue collected would be used to repay thedeveloper for the interceptor improvements.Accordingly, a cap on Utility ExtensionCharges reimbursement could be establishedat an amount needed to reimburse the devel-oper for impacts exceeding his proportionateshare. The part of the Utility ExtensionCharges reimbursed could be limited by the


proportionate cost of the infrastructure itemsconstructed by the developer to the cost basisof the Utility Extension Charges.

Because of the availability of private wells andseptic systems as an alternative to utility serv-ice, ancillary policies in other portions of theCity Code, as well as the regulations of theCounty and the Extraterritorial Land UseAuthority, should also be considered. The Cityand County should seek appropriate legisla-tion to clarify their authority to control the pro-liferation of private wells and septic systemswithin water and sewer service areas. In addi-tion, however, the City and County should beprepared to permit a reasonable alternativeuse of property, either through project phasingor rural densities, in order to avoid potentialtakings liability for developments that cannotobtain central sewer or water service.

5.6.4 Subdivision Regulations

Concurrency/Adequate Public Facilities Ordi-nance regulations are typically enforcedthrough the subdivision approval process. TheCity currently requires adequate facilities in itssubdivision ordinance, but it has not refinedits processes or standards to conform to thePlanned Growth Strategy.

City Code § 14-14-2-3 (Land Suitability) con-tains a basic statement of adequacy of publicfacilities, as follows:

(B) Land to be subdivided must have orbe provided with adequate infrastructureimprovements as specified in Part 4 ofthis article. Demonstrated capability,agreements, and assurances to providenonprogrammed facilities through private funding will be satisfactory asprovided in Part 5 of this article.Programmed facilities are those includedin an adopted Capital ImprovementsBudget with funds authorized.

However, the following subsection states thatthe availability of adequate public or privateinfrastructure “shall all be weighed in consid-

ering proposed subdivisions,” but that these“are not all necessarily required.”66

Accordingly, the City’s standards relating toadequacy of facilities are internally inconsis-tent. Under the standard as written, the agen-cies charged with plat approval are free toignore the availability of public facilities if theyfeel that they are outweighed by other policies.How this balancing process is to occur andwhich policies are to be considered, is notdescribed sufficiently in the ordinance.

Article 4 of the Subdivision Regulations con-tains the design criteria for subdivisionapproval. Most of the meaningful standardsare embodied in the Development ProcessManual, which is adopted by reference.67 TheCity has provided very detailed and informativecriteria for most of the infrastructure stan-dards in the Development Process Manual.However, these standards need to be refined tocoordinate with the locational, urban design,and timing policies of the Planned GrowthStrategy. The City also has criteria for specificfacilities, such as water. A water and sewerservice availability statement must be submit-ted for preliminary plat approval.68

The County Subdivision and Land Develop-ment Standards Ordinance69 also providesinfrastructure standards. Subdivision disclo-sure statements (§ 74-82) must containdetailed information about the availability ofwater supplies, fire stations, police protection,liquid waste disposal, terrain management(storm water protection), recreational facilities,public schools, and public transportation.70

Maximum water demands must be quantified(§ 74-92), and water availability assessmentsmust be submitted with a 70-year supplyrequired (§ 74-95). The County also has gen-eral standards for liquid waste management (§74-98), solid waste disposal (§ 74-99), and ter-rain management (storm water management)(§ 74-101), fire protection (§ 74-103), and openspace (§ 74-111). A transportation impactanalysis is required for subdivisions above aspecified size (§ 74-102). Most of these stan-dards require reporting, but contain no specif-ic or meaningful criteria for judging the impact


of a development and measuring it againstavailable capacity.

Accordingly, the following revisions are neededfor the City and County subdivision regula-tions:

• A level of service standard should beadopted for each selected facility, by area.This could be provided as a summarymatrix in the subdivision regulations,with cross-reference to a developmentprocess manual for details about howservice levels are computed and meas-ured.

• Areas that are exempt from concurrencyreview should be listed and mapped.

• Procedures for coordinating infrastruc-ture availability with the three-stagesketch, preliminary, and final platapproval should be established.

• The roles and responsibilities of the pub-lic and private sectors related to the pri-vate financing of infrastructure shouldreinforce Planned Growth Strategy goals.

5.6.5 Zoning Ordinance

The Concurrency/Adequate Public FacilitiesOrdinance program creates an opportunity tobuild the Planned Growth Strategy conceptsinto the land use approval process in a mean-ingful way. Numerous changes to the zoningordinance are needed to make this happen.First, a series of design standards or “UsePatterns” must be defined that reflect thegrowth objectives of the Planned GrowthStrategy. These patterns are described inSection 5.5 of this chapter and elsewhere. Thedesign standards would include minimumdensities appropriate to specific areas.

Second, development in major activity centersand community activity centers that lie withinmajor or enhanced transit corridors should beeither exempt from concurrency review orshould otherwise be allocated sufficient infra-structure capacity. This creates an incentivefor compact development patterns to occur

and also reflects the availability of transit as asubstitute for automotive travel.

5.6.6 Development Agreements

Procedures for the processing and approval ofdevelopment agreements should be estab-lished in City and County Codes. The City andCounty already use a Subdivision Improve-ments Agreement to guarantee the construc-tion of on-site infrastructure.71 A developmentagreement extends this concept, while at thesame time providing procedural protections forthe property owner by vesting developmentrights for the term of the contract.

Whether development agreements constituteinvalid contract zoning is an issue untested inthe New Mexico courts. However, the NewMexico courts have not invalidated all forms ofcontract or conditional zoning. In Dacy v.Village of Ruidoso, 845 P.2d 793 (N.M. 1992),the New Mexico Supreme Court expresslyapproved zoning actions that involve “a unilat-eral contract in which a party makes a prom-ise in return for a municipality's act of rezon-ing [where] the municipality makes no promiseand there is no enforceable contract until themunicipality acts to rezone the property.”72

Contract zoning is, however, illegal “wheneverit arises from a promise by a municipality tozone property in a certain manner, i.e., when amunicipality is either a party to a bilateral con-tract to zone or when a municipality is a partyto a unilateral contract in which the munici-pality promises to rezone in return for someaction or forbearance by the other contractingparty.”73 If the development agreement is tiedto a site plan approved after a zoning hearingoccurs, or is part of a platting or other regula-tory process, it does not compromise the localgovernment’s land use standards. Instead, itis an important planning tool to enforce stan-dards by establishing a mechanism for resolv-ing potential legal disputes and providing forthe financing of infrastructure needed toaccommodate growth. In that context, proper-ly used, it does not have the characteristics ofillegal contract zoning.


5.6.7 Impact Fees and UtilityExtension Charges

Any concurrency/Adequate Public FacilitiesOrdinance system should be consistent withthe land use and capacity assumptions used tocalculate impact fees and Utility ExpansionCharges. In other words, the level of serviceused to enforce an Adequate Public FacilitiesOrdinance should also be the level of serviceused to calculate the fees.

This approach has several advantages. First, ithas the effect of encouraging the types of landuse patterns provided for in the PlannedGrowth Strategy. For example, trip lengthscould be used to calculate different fees inPartially Served Areas based upon distancefrom the urban core and/or whether the proj-ect is located in an activity center. This pro-vides lower fees in the areas in which the Cityand County want development to occur firstand at higher densities and intensities. It alsohas the effect of assuring that developmentthat consumes most of the roadway capacitythrough longer trip lengths and vehicle milestraveled pays a greater share of growth-relatedcosts. This is consistent with the proportion-ate share, “rational nexus” concept embodiedin the development impact fee statute.74

Second, providing the same level of servicestandards as in the Adequate Public FacilitiesOrdinance assures that the capital improve-ments programs for impact fees produced pur-suant to NMSA § 5-8-6 are consistent withthose produced under the Capital Improve-ments Program ordinance. In fact, it assuresthat one document can be prepared for bothpurposes. This enhances administrative con-venience and underscores the rationality of theprogram.

Finally, level of service standards provide anadditional incentive for the City and County toadhere to spending commitments provided forin the Capital Improvements Program. Notonly is the Capital Improvements Programaugmented with private funding but there is astatutory mandate to earmark the fees and tocommit impact fee monies to the improve-

ments.75 This provides a measure of fiscal dis-cipline missing from most capital improve-ments programs, including the local ones.

5.7 ConclusionAn Adequate Public Facilities Ordinanceincludes procedures and standards to assurethat development approval does not occurunless public facilities will be in place at spec-ified levels of service concurrent with theimpacts of the development. From thisstraightforward-sounding requirement, a hostof issues emerge that belie the simple nature ofthe statement. Because of substantial differ-ences in capital facility provision responsibili-ties, level of service standards, capital improve-ments programming, sophistication of existingdevelopment approval processes, existing ade-quacy and available capacity of public facilitiesthat may be subject to concurrency, existingamounts of development in the “pipeline,” andthe need to reserve capacity, no AdequatePublic Facilities Ordinance developed for onejurisdiction can serve as a precise model forone needed in another jurisdiction. However,knowledge of other systems and approacheshas significant benefit because it enables us to:

• appreciate differences in approaches andthe rationale for such differences;

• learn from mistakes already made andcorrected in other jurisdictions;

• understand the complete range of issuesthat need to be brought to the attention ofstaff, the development community, andother interested parties and on which pol-icy decisions will need to be made; and

• understand how a concurrency determi-nation process actually works in practice(not just in theory).

One of the key aspects of concurrency man-agement is that it requires the local jurisdic-tion to have a monitoring or developmenttracking system that actually includes twocomponents, the first of which is reasonablycommon, but the second of which is rare. Thefirst component is the tracking of developmentin terms of the capacity of public facilities that

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will be used or that need to be reserved for theproposed development. That, in turn, willrequire a measurement of the facility demandgenerated by development, by type, and byimpact area. The second component is thedetermination and on-going monitoring andupdate of available public facility capacity byimpact area. This would be easier if it onlyneeded to be done annually. However, condi-tions are changing over time. For example, onthe demand side, approved developments maynot go forward, thereby freeing up otherwisecommitted capacity. And, similarly, on thecapacity side, capital improvements may bemade expanding the available capacity.

The most workable system, given the variety ofboth infrastructure and design objectivesexpressed by the community during thePlanned Growth Strategy process, is one thatcombines concurrency review with locationaland design criteria. The locational standardssupplement concurrency review by applyinglower service levels to areas with an existingbuilt form, infill development and redevelop-ment opportunities, and public transportation.The community design criteria establishes atemplate for new communities that, because ofmixed uses and the relationship of buildings tothe public realm, more efficiently use infra-

structure capacity. These guidelines permitthe community to establish variable levels ofservice that accommodate the various objec-tives of the Planned Growth Strategy.

Under this system, the concurrency conceptcan be combined with impact fees and otherprivate financing sources to provide very low orno cost to developers for infrastructure whereexcess capacity is used and is consistent withPlanned Growth Strategy objectives. Develop-ment that creates demand exceeding the avail-able or CIP programmed capacity would payfor the improvements to increase capacity.Defining a lower level of service in the urbancore and in activity centers, where roadwayexpansion is impractical or unnecessary, cre-ates a valuable incentive for infill development.Defining higher levels of service where road-ways are presently uncongested and wherethere is room for expansion of right-of-way,provides an orderly sequencing of urban devel-opment outside of the City and County’s desig-nated growth areas. This approach is blendedwith a Capital Improvements Program thatwould provide infrastructure programming toareas in which certain types of developmentare desired. The result is a system of financialincentives and disincentives related to theinfrastructure system.

Planned Growth Strategy - Part 2, Chapter 5 · The Planned Growth Strategy is a strategy designed,...

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