An Overview and Analysis of the Development versus Preservation Debate:
Focus on the San Antonio Metropolitan Area

Francine Sanders-Romero, Ph.D.
Assistant Professor
Division of Social and Policy Sciences

Executive Summary

The issue of basic land use in the San Antonio Metropolitan area can be conceptualized in terms of three dimensions:

• Goals are generally either development or preservation oriented
• Mechanisms for achieving goals can consist of acquisition, regulation, or market-based incentives
• Venues producing such policies include federal/state/local levels and judicial/legislative settings

From 1987-1997, clear variations emerged among the relevant policy making venues:

• The U.S. Congress produced largely preservation oriented polices, characterized by acquisition or incentive based mechanisms
• The Texas State Legislature largely produced development oriented policies enforced by regulatory mechanisms
• The San Antonio City Council produced limited preservation oriented policies enforced by regulatory mechanisms
• The U.S. Supreme Court moved to block the rights of governments to limit development
• The Texas State courts upheld the rights of governments to limit development

The implications of these findings and attendant recommendations for citizens and policy makers concerned about the loss of land to development are as follows:

• Local action must focus on land acquisition, either directly or through federal grants; because development regulation while still upheld to a degree by state courts, has been severely curtailed by state legislation
• Lobbying efforts are best focused on the state legislature, with an emphasis on increased local acquisition grants and on modification or revocation of recent statutes

Introduction to the Land Use Policy Issue

  Land use disputes in the United States are multi-layered, long standing and reflect the underlying conflict over the extent to which real property rights should be supported, or can be limited, by government. While this debate impacts such diverse activities as zoning, eminent domain and urban planning, a primary issue in land use is development -- the alteration, in some way, of land from its natural state, with policies ranging from promotion to prohibition of this activity. The topic is receiving growing attention (Mitchell 1999; Purdum 1999). Furthermore, it is an extremely significant issue, for as Platt (1996, 109) notes, "the development of land is a crucial and essentially irreversible decision." This inquiry offers an initial examination of one portion of the complex and contradictory nature of development related policy.

The paper serves a dual purpose: First, it provides an overview of governmental activity in this realm from 1987 to 1997, focusing on policies of relevance to the San Antonio Metropolitan region. It links this information to a key controversy-the extent to which policies vary by institutional venue. This assertion is traceable to the nation's founders and is currently enjoying a resurgence among political scientists in the guise of New Institutionalism. Thus, a second objective is to explicate evidence of the systematic differences in policy output across several institutions. Given the emerging nature of this issue, this is necessarily an exploratory study at this stage. This inquiry, however, does offer a complete picture of contemporary policies relevant to the San Antonio region and suggests meaningful institutional variation.

Land Use Policy in Three Domains

  To chart the course of policies in the San Antonio Metropolitan area, a focus on three key variations is useful. First, the goal may be either development or preservation oriented. Second, the means by which the goal is potentially reached may consist of regulation, incentives or acquisition. Finally, the institutional venue, which produces the policy, may be at the local, state or federal levels, and can represent legislative, judicial or executive functions. Below, each of these domains is addressed in greater detail. In the policy overview section to follow, a catalog of this variation (i.e., which venues produced which goals and means) is presented.

Competing Policy Goals in the Land Use Arena

  As basic public policy textbooks state, the existence of a problem triggers a policy response. But land development is difficult to consider within a strict "problem" framework because from some perspectives it is a positive occurrence and from others a negative one. Pressures for the unrestricted development of land compete with the advocacy of limits on such activities. Any land use study must first recognize this key characteristic policies, for the most part, aim to either promote or restrict development.

There is, however, a loose chronological order to these dichotomous goals. Because policy output, to at least some degree, reflects broad public preference and socio-economic needs, societal evolutions have lead to policy goal progressions as well. In regard to the need to protect land versus the necessity of development and the preservation of private property rights, there exist three distinct, albeit overlapping, eras.¹

In the early years of the American republic, the frontier required taming and cultivation if it was to become habitable by settlers, so policies were designed to foster development, either by direct government action or by incentives and aids to private efforts. For example, the federal Swamp Land Act of 1847 ultimately gave away 60 million acres (much of which was actually dry) to those who agreed to drain and convert them. Similarly, the Homestead Act of 1862 transferred over 600 million acres to citizens and states, again for the purpose of encouraging settlement and development. A number of acts passed in the late nineteenth century were designed to promote development through railroad construction, irrigation and mineral production (Switzer 1997).

By the late nineteenth century, however, the notion of preserving land for its own sake arose and began to attract adherents both in and outside government. Although development in general was still broadly viewed as a desirable goal, the notion of preserving at least some of the more unique public lands began to gain legitimacy and popularity.² This outlook proved enduring, and inspired later policy efforts such as the Wilderness Act of 1964, which set aside additional federal lands for protection, and Section 404 of the Federal Water Pollution Control Act Amendments of 1972, which required federal approval of any alterations to wetlands. Some current policies continue to reflect this philosophy, even down to the local level, including a successful College Station, Texas ballot measure in 1998 authorizing a $3.6 million bond for open space preservation.³

Despite the continuation of the preservationist strain, it is overlaid by a third major era reflecting a backlash opposition to various preservationist efforts. This backlash emerged in the late 1970s with the Sagebrush Rebellion, a loosely organized effort devoted to limiting federal control of western public lands. The Wise Use movement, which attracted a broader array of geographic and industry interests, was generally opposed to the alleged heavy-handed tactics of (usually federal) regulation of natural resources (e.g. logging, mining and grazing industries). Finally, the property rights movement, which arose in the late 1970s as a reaction to the Carter administration's regulation efforts, represents an attempt by private and corporate property owners to limit federal land use regulations or to force monetary compensation when they lower property values, particularly on wetlands (Switzer 1997).

Not all of the activities encompassed by the backlash umbrella are directly relevant to the land conservation versus preservation debate. For example, one emphasis of the Wise Use movement is the continuation of low grazing fees on public lands, which has little to do with development. However, these movements helped to foster an atmosphere of mistrust toward land use regulation in general and were at least coincident to a number of policy initiatives at the federal, state and local levels attempting to limit governmental authority and restore the rights of the property owner and citizens utilizing publicly owned lands.

Thus, the period of inquiry here (1987-1997) can potentially comprise both preservationist goals, reflecting a continuation of the trends begun over a century ago, and pro-development goals, inspired by the early guiding principles of the republic as well as a recent resurgence of property rights advocacy in combination with a growing antagonism toward too much government regulation.

Policy Means -- How to Achieve the Goal

Another key element in this policy area is the means by which goals are potentially achieved. On the preservation side, there are three basic mechanisms through which the goal can be accomplished. Regulation consists of a government entity placing limits on allowable development, and utilizing an administrative and legal system to monitor compliance and to impose penalties for violations. When the cost/benefit ratio renders non-compliance unfeasible, regulation is an effective, if somewhat unpopular, option due to the increased governmental presence and authority that accompanies it (Freeman 1997; Mazmanian and Sabatier 1989).

Acquisition is an alternative strategy in which land is simply purchased by a government entity, thus insuring its protection while eliminating the necessities of monitoring regulatory compliance and the potential need for compensatory payments to property owners (Platt 1996). Finally, market-based incentives provide a third means of preservation by providing some sort of benefit (such as a tax break) to landowners who abide by certain provisions. For governments, which may not have the resources to commit to regulation or acquisition, this is an increasingly popular alternative (Freeman 1997; Platt 1996). On the other hand, it is sometimes viewed as signifying a weaker commitment to the preservation goal, and therefore of merely symbolic importance.

On the other end of the land use goal spectrum, development is most commonly encouraged either by acquisition (i.e., government purchases land and develops it) or through incentives (i.e., government provides inducements, such as tax breaks or land giveaways, for private development). It would be highly unusual for a regulation strategy to be directly used to foster this goal as it would require government mandating private land enhancements or construction.⁴ There are, however, instances in which regulation is used to indirectly promote this goal. This occurs when a lower level government's attempts to regulate development are rendered ineffectual by a higher level forbidding (i.e., regulating against) the practice. Figure 1 provides a summary of these different types of policy means and abstract examples of each.

Institutional Influence

Finally, land use policies vary in regard to the institutional venue from which they originate. Below, the policy overview section illustrates this by presenting policies categorized by the institution that produced them. However, the purpose of this study is not only to inventory existing land policies but also to determine whether these policies differ systematically by level and venue of government. The findings will thus contribute to the resurgent institutional policy making literature, which contrasts policymaking in different settings. As noted by Rockman (1994, 146), "the unifying creed of the institutionalist revival is that the architecture of institutions counts, the rules by which they do business matter, and the meanings vested in procedures are consequential." Despite the recent "rediscovery" of institutionalism, however, the most widely acknowledged (if not universally accepted) general model of institutionalism is found in The Federalist Papers, which predicts output differences between levels (federal versus state and local) and venues (legislative versus judicial, in particular) of government.⁵ Additionally, there is a growing literature on potentially meaningful differences among the various states.

In the following section a summary of these arguments is offered, but the conclusion ultimately drawn is that it is difficult to apply these general principles to this particular subject area. That is, one of the problems in attempting to systematically explore this issue is that deductive hypotheses based on institutional perspective are not clearly apparent. This quandary, described further in the following sections, suggests that a cataloging of the institutional variations which do occur may be the necessary precursor to the development of a theoretical framework for institutional variation in the land use arena.

Policy Output by Governmental Level

In Federalist 10 (Hamilton, Madison and Jay 1961,130), James Madison argues that the federal government would be far more successful than state governments in reducing the effects of faction, which he describes as, "a number of citizens, whether amounting to a majority or minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or the permanent and aggregate interests of the community." In defending this supposition, he asserts "extend the sphere and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens."

Madison, in short, claims that ideas dangerous to the general welfare and destructive of rights are less likely to be transformed into policy at the national than at the state or local level. Applying this concept to real issues is always tricky, because the notion of what constitutes an ill-conceived policy is rather subjective. Furthermore, Madison himself did acknowledge that states were better able to deal with some localized issues. Despite these difficulties, however, it is clear how certain issues would fit into Madison's framework. If Madison is correct in his predictions, it would be reasonable, for example, to expect a greater response to claims of civil rights or liberties violations at the federal than at the state level. This is not to say that his predictions are necessarily correct, just that with some issues it is at least a fairly straightforward exercise to develop a hypothesis based on these predictions.

But this is not so simple in the realm of land use. Which is the "factional" policy that Madison predicts would be more likely at the state level in this case--policies encouraging or limiting development? In either case, policies can be portrayed as pitting limited gain against a broader good (i.e., allowing developers to gain financially at the expense of the ecosystem versus allowing a small number of preservation advocates to slow the development necessary for the economic health of a region). Thus, only a limited expectation can be drawn based on these assertions-that there is likely to be some observable difference between federal and state/local policies.

To this point, attempts to empirically assess actual differences in federal versus state policy responses (an effort stimulated by the decentralization of policy authority to the states introduced by the "new federalism" programs of recent decades) have focused on questions of effectiveness and efficiency, as opposed to policy substance. But while there is general agreement on the fact that states simply have fewer available resources, the literature specifically addressing environmental issues is characterized by a great deal of disagreement. Some assert that states have proven to be the more effective, innovative and responsive agents in this area, while others maintain that state response is weak and minimal compared to federal initiatives (Lester 1994; Lester and Keptner 1984; Rabe 1997). These issues will be further addressed below.

Policy Output by Institutional Venue

  In addition to predictions that policy would differ meaningfully by level of government, the federalists also believed that the structure of institutions (regardless of level) could shape behaviors and outputs. In Federalist 78, Alexander Hamilton makes the assertion that elected officials (i.e., the U.S. Congress) will reflect majority preferences while appointed officials (i.e, the U.S. Supreme Court) may be able to rise above majority demands and become the bulwark defenders of minority rights and constitutional principles potentially violated by legislation.⁶ One can extend these precepts to certain policy areas (and other similar venues) fairly easily. For example, if the founders were correct, then we could expect to find more support for civil rights guarantees from the U.S. Supreme Court than from the U.S. Congress, state legislatures, or elected state courts. Or we may expect legislatures to be quicker to limit the free speech guarantees of unpopular groups (and elected courts to uphold such limitations), while appointed courts would work to restore them. Again, this is not to say that these expectations are necessarily correct in reality or that all scholars agree with them on a theoretical basis. But here too, as in the federal versus state argument, it can be problematic to make predictions along these lines in the environmental realm in general and in the area of land use in particular.

For one thing, it is difficult to get a handle on what the majority of Americans favor, which is a key factor in constructing a hypothesis. If there were clear evidence of a majority preference, then a reasonable prediction might be that the preferred position would be reflected in the outputs of elected, but not necessarily appointed, bodies. But such clarity and consistency is lacking. In general, Americans profess a strong concern for the environment and this tendency has only strengthened in recent years (Stimson 1999). Yet, the depth of this concern is questionable, and environmental policies which require lifestyle changes or impact the economy or jobs are potentially problematic. And as Kraft (1996, 204) notes, "the public... is vulnerable to political rhetoric that exaggerates the effects of environmental policy."

In terms of the land preservation versus development debate, there is also conflicting evidence. In some ways, land preservation seems to be the least popular of the environmental initiatives. For example, while only 30% of Americans in a 1995 poll stated that enough has been done to fight water pollution, 52% believed that wetlands preservation policies have accomplished enough. Furthermore, the same poll showed that 66% of Americans agree that government should compensate individuals and businesses when regulations lower the market value of their land (Bosso 1997). This evidence is challenged by the outcomes of the 1998 elections, however, in which over 124 of 148 (84%) state and local ballot measures designed to achieve land preservation and limitations on sprawl were passed by voters (Land Trust Alliance Website 1999; Purdum 1999). Moe (1998) referred to these results as "an unmistakable mandate for elected officials to deal with an issue that affects everyone: unmanaged growth, better known as sprawl. The New York Times editorialized that the election showed that "Americans would clearly like-to see a more vigorous brand of environmental stewardship..." ("Voters and the Environment", 1999). While it is possible that a broad attitude change may have occurred just before the 1998 elections, the overall evidence remains mixed and inconclusive.

Furthermore, constitutional influence is vague since there is no determinative principle for development issues as there is, for example, for voting rights (Fourteenth and Fifteenth Amendments), or flag burning (First Amendment). Certainly, the "takings" provision of the Fifth Amendment (and a similar clause in the Texas Constitution), which states that the government may not take property from citizens without proper compensation, is relevant here, since a growing number of citizens claim that regulatory restrictions on their property would amount to a "taking" in the same way as an outright seizure. But while the Supreme Court did agree in 1922 (in Pennsylvania Coal Co. v. Mahon 260 U.S. 393) that restrictions on land use could be considered a compensable "taking" if "they went too far," and had the effect of limiting market value, the Supreme Court and other courts have wrestled ever since with how far is "too far," with no clear precedent having been established. As noted by Walther (1995, 2), "the Supreme Court has decided "taking" challenges on the facts of each case and has resisted developing a sweeping formula."

Thus, while we could again at least hypothesize that appointed courts (unlike legislatures) would be more likely to uphold clear constitutional principles even in the face of negative public assessments, it is difficult to translate that abstraction into actual variations in policy content.⁷ But, it would be reasonable to suppose that if judicial appointment is an important factor in shaping policy outcomes, then decisions made by the (appointed) U.S. Supreme Court and the (elected) Texas state courts are likely to be quite different, whatever the content may be. Furthermore, since they are elected by similar constituencies, federalist predictions suggest that the Texas courts and legislature should react to land use issues in a similar manner.

Policy Output, Among the States

  Within the field of comparative state studies, as addressed above, scholars have approached policy variations both from the abstract level and in terms of real outputs. In a classic exposition of state policy variation, Daniel Elazar (1984) categorized states in terms of three basic types of political cultures. The moralistic culture, seen largely in the upper Midwest and New England, implies a citizenry who expect and demand an activist government capable of responding effectively to societal problems. The individualistic culture, more common to the Midwest and East, stresses a role for government in solving the problems of those groups and individuals skilled at generating policy responses. Many of the southern states are characterized as traditionalist, in which there is little citizen participation and government is expected to reserve the status quo. Elazar categorizes Texas as a mix of the traditionalist and individualist cultures. This abstract assessment suggests that state and local level responses to environmental problems in general and land preservation in particular are not likely to be robust in Texas.⁸ As Plotkin (1987) notes, economics, profits and development have always been hallmarks of Texas politics.

Other attempts to get a handle on state variation have focused on the measurable determinants, which may lead to diverse policy outcomes. Lester (1994) focuses on four factors that could potentially impact environmental policy outputs. The severity of the problem itself, the state's resource base, party factors and organizational capacity are hypothesized to have some influence on environmental response. Lester categorizes the states according to these factors and classifies Texas as a "delayer," that is, a state that has the resources to deal with its environmental problems but not the commitment to do so.⁹ lt is illustrative to examine each of these factors in Texas in greater detail.

In regard to the first factor, the severity of environmental problems in Texas is mixed. For example, Texas industries release more toxic waste into the air, water and land than any state except Louisiana. On the other hand, municipal water pollution has decreased by seventy percent since 1972, and water use in general is down (Texas Center for Policy Studies (1995)). But as noted above, while water, land and air pollution are widely recognized as societal problems (albeit with disagreement as to the nature or even necessity of governmental response) the loss of land through development is not. Thus, there is less attention paid to the topic and less information available compared to other environmental issues.

It is clear, however, that there is a great deal of development occurring in Texas. Only 3% of the state is publicly owned (Texas Wetlands Conservation Plan 1997), which means that 97% has already been, or is eligible to be developed. In fact, Texas accounts for the largest share of cropland, forests, wetlands, and other open spaces lost to development between 1992 and 1997 nationwide (Brasher 1999). One illustrative example in San Antonio is that all land within the Highway Loop 410 is either developed or platted for development (Monroe 1999). Furthermore, Texas lags behind most states in its designation of public lands to protected, state park status. In 1994, about 0.26% of the publicly owned lands were granted some sort of protection through park status, which is about one-half the national average (Texas Center for Policy Studies 1995). Additionally, two state parks (Big Bend Ranch Natural Area and Devil's River State Park) alone account for 23% of that state parkland.

In regard to Lester's second determinant, the Texas state resource base is strong, and continues to grow at a pace faster than the economy of the nation (Haag, et al. 1997). However, it is not just total available dollars that matter here. A state's wealth is irrelevant if little has historically been spent on environmental programs. In 1997, according to U.S. Commerce Department data, 1.17% of the state's total budget was spent on natural resource protection, and .14% on parks and recreation. Currently, Texas is the lowest ranking state in per-capita spending on parks (Cardwell 1999).

It is difficult to assess the role of Lester's third and fourth factors--partisanship and organizational capacity--in Texas. First of all, partisanship is largely irrelevant in the south. While, traditionally, state legislatures dominated by Democrats are more likely to pass environmental protection statutes (Calvert 1989), the characterization breaks down in the southern states. Both southern Democrat and Republican controlled legislatures have poor environmental records. Thus, simply by virtue of being a southern state, the suggestion is once again that Texas will produce limited output.

In terms of organizational capacity, there are mixed indicators. Lester estimates this in terms of the existence of administrative reforms, as indicated by the consolidation of relevant agencies and by a professionalized legislature. The first condition was met in Texas by the creation of the Texas Natural Resource Conservation Commission in 1991, which encompassed many of the state's existing environmental programs into a single agency. The legislature remains non-professionalized, however, meeting only once every two years in a limited, six month session.

One potentially important determinant not addressed by Lester is the degree of citizen demand for environmental protection. Given our system of representative democracy and the electoral calculations of elected officials, public pressure could be a key determinant of outcomes. Texas appears to lag behind other states on this dimension as well.

For example, of the 148 ballot initiative limitations on development in the 1998 elections alluded to above, only three appeared in Texas.¹⁰ Another indication of demand is the strength of citizen-based preservation groups. In the realm of land conservation, the land trust movement, in which groups secure private donations of land and conservation easements in order to ensure preservation, is the fastest growing group-based factor nationwide (Brooke 1998). However, the land trust record in Texas is also in the bottom tier of states. In terms of the total number of acres placed into land trusts, (but not controlling for state size), Texas ranks 33 out of 50. This may be due not so much to a lack of effort as to the unwillingness of land owners to sell the land or to accept easements. The Nature Conservancy of Texas has been able to secure only one San Antonio area with a conservation easement, the 700 acre Gallagher Ranch in Northwest Bexar County, and efforts by other groups have also been slow to achieve results (Bush 1999a; Miller 1999a). This record is important because these groups attempt to preserve land independently of governmental regulations. Their lack of success suggests that opposition to land preservation is not motivated solely by an aversion to government intervention. Furthermore, groups advocating property rights and opposed to governmental regulations on land use, such as the Southwestern Cattle Raisers Association, the Texas Wildlife Association, Take Back Texas and the Trans-Texas Heritage Association, are strong in the state. Both Texas senators (Republicans Kay Bailey Hutchison and Phil Gramm) are recognized as national supporters of the property rights movement (Walther 1995).

Summary of Expectations for Land Use Policy Impacting the Bexar County Municipal Area

  In summary, basic institutional theory provides little direction to potential policy content variation by level and venue for this issue. All that can reasonably be surmised is that there should be some observable difference among levels and venues; what the substance of these differences might be is unclear. Additionally, the existing literature on state behavior only emphasizes the overall variation among state environmental policy outputs. Some are reticent to undertake policy action, while others are activist, thus making broad expectations for states in general unfeasible.

In Texas, however, the initial signs point to a restrained policy position. The general state bias against government intervention as well as more specific indicators such as constraints on budgetary commitments, ideology, the non-professionalization of the legislature, and an apathetic (or hostile) citizen base, all point toward a probable low commitment to land use preservation policies. There is some indication that San Antonio might display greater sensitivity to the preservation of lands, due to rapid development and a populace somewhat more amenable to government intervention in general. Yet, as Plotkin (1987) suggests, conservatism remains strong in the city. This evidence, in combination with the limited predictions that can be applied from federalist theory suggests that the three Texas institutions examined here should be expected to produce similar, anti-preservationist/pro-development policies, and that these should differ to some degree from the outputs of federal institutions.

Research Design for Policy Overview

Venues Included

  This study catalogs all land use policy decisions of relevance to the San Antonio area at the federal, state and local venues, since any metropolitan area is subject to decisions made at all three levels. The overview covers the U.S. Congress, the U.S. Supreme Court, the Texas Legislature, the Texas Supreme Court and Courts of Appeal, and the San Antonio City Council. These venues not only represent different levels but distinct types of policymaking bodies as well, with elected legislatures and appointed and elected courts included.¹¹ The comparison of outputs from these three classifications will establish an institutional perspective on policymaking in this realm.¹²

Policies Included

  A search was undertaken to uncover the relevant policies, with the sources utilized varying by venue.¹³ This inquiry concerns only the narrow development versus preservation issue; general land use, property rights and environmental policies were excluded.

Additionally, since some policies are relevant only to certain types of ecosystems or geographic areas, only those potentially influencing the San Antonio area are utilized. Provisions pertaining solely to coastal zones as well as those targeting particular areas outside of the San Antonio region are excluded.14 While some policies are indirectly germane to the issue, the sources utilized made the link apparent. For example, the pertinence of the annexation issue in the Texas Legislature, as explained below, was made clear by the stated positions of the supporters and opponents of the bills.

Years Included

  The time frame of 1987-1997 was selected because it represents the most recent range of years which can be adequately researched at this point.15 A ten year framework does not provide an exhaustive history, but it is adequate to establish the existing state of policy as well as to suggest patterns of institutional variation.

Policy Overview

  The following sections provide an overview of policies formulated in the ten year period from 1987-1997, delineated by venue. The main purpose is to catalog outputs, with particular emphasis on the goal and means of each policy formulated by the legislatures and considered by the courts. A more systematic approach, comparing the extent to which each venue is associated with particular policy goals and means, is reserved for the analysis section.

U.S. Congress¹⁶

1987

  The U.S. Congress' record on land use begins with a year in which only one generalized bill was considered. In an example of a preservationist goal utilizing acquisition means, Congress authorized and appropriated $212.5 million for the purchase of lands through the Land and Water Conservation Fund (funded by revenue from offshore oil and gas leases), and extended budget authorization through 2015.

1988

  Congress passed two different types of land protection bills in this session. First, the Rails to Trails bill established funds for the acquisition of abandoned railroad rights of way to be transformed to hiking and nature trails. Secondly, the Cave Protection bill established regulatory protections for the nation's caves.¹⁷

1989

  The centerpiece in this year was passage of the North American Wetlands Conservation Act, which established an acquisition program for the purchase of wetlands that was financed by a tax on hunting equipment. It carried out the U. S. commitment to the North American Waterfowl Management Plan, a 1986 treaty signed by the U.S., Canada and (later) Mexico to preserve habitat areas.

However, the precepts of the pro-property rights movement also appeared in this session. A plan to combine the Land and Water Conservation Fund with another fund was blocked from a roll call vote on the House floor by western Republicans, who referred to it as a "naked land grab." Additionally, the Conservation Reserve Program, an incentive based policy that rewards farmers for taking environmentally fragile land out of production, was cut by $778 million.

1990

  This session can be characterized as fully preservationist and was important in establishing the legislative commitment to agricultural land protections in particular. First, the incentive based Conservation Reserve Program was fully restored (and renamed the Agricultural Resource Conservation Fund). Furthermore, an attempt to eliminate the existing "swampbuster" provisions failed. This policy was a regulatory limitation, mandating the denial of all federal benefits to farmers who drained and cultivated wetlands on their property. The failure to eliminate this provision of federal law was a sign of lack of the strength for the pro-farmer and pro-property rights contingents. Additionally, although penalties for first time offenders were lessened, the provisions themselves were strengthened by assessing the penalties merely for the drainage of wetlands, as opposed to the previous language of draining and cultivation. As noted by the Congressional Quarterly Almanac, "the politics of agriculture was changing. The power of the farm coalition-at least in environmental matters-was being challenged, even in the friendly confines of the Agriculture Committee, as lawmakers contended with the growing public insistence on environmental protection." (CQ Almanac 1990, 35).

Additionally, Congress established the acquisition based America the Beautiful, a private, non-profit foundation to promote tree-planting and land conservation. This was to be federally funded for the first year and depend on private donations thereafter.

1991

  In this year, the preservation goal continued to dominate, despite attempts to weaken it. The budget for the Agricultural Resource Conservation Fund was increased, and a pilot, acquisition based Wetlands Reserve Program was authorized. Attempts to pass legislation narrowing the definition of a wetland and to provide property owners and developers with enhanced protections against government regulations that lessened property values never emerged out of committee.

1992

  Little action occurred in this year, however, all funding for the Wetlands Reserve Program was cut until it could be fully evaluated.

1993-94

  In these first years of the Clinton administration, little transpired in the land use realm, which was somewhat surprising considering that these years represented the first unified Democratic government in 12 years.¹⁸ The only actions were reauthorizations of the Wetlands Reserve Program in both years, and an extension of the 1989 North American Wetlands Conservation Act in 1994.

1995-96

  Just as the previous session was strikingly void of attempts at preservation, these first years of Republican congressional control were surprisingly devoid of any successful attempts to limit existing regulation policies, given the Republican advocacy of property rights and promises to limit land use regulations. All bills attempting to limit the regulatory power of the federal government (i.e., using regulation to limit regulation, as described in Figure 1) in the land use realm failed.

A bill requiring cost/benefit analyses for all major federal regulations, which would have strongly impacted land preservation attempts passed in the House but not the Senate. Additionally, the House also passed a controversial Clean Water Act but Senator Chaffee, a moderate Republican, refused to even bring this before his Environment and Public Works Committee. This bill had strong implications for the protection of wetlands. A much narrower definition of a wetland was proposed, and no more than 20% of land in any given county could be protected by regulation. All regulatory decisions were to be implemented by the Army Corps of Engineers and the Department of Agriculture, agencies traditionally opposed to limitations on development. Furthermore, any regulatory actions that were allowed would require landowner compensation if greater than 20% of the property value was lost.

The only land use provisions that did pass in the 104th Congress were incentive and acquisition provisions in the 1996 farm bill, which were designed to compensate farmers who demonstrated a commitment to preserving habitat and grazing areas as well as to purchase and preserve farmland in danger of development.

1997

  Again, only one bill relevant to land use passed in this session. This regulatory preservationist bill established conservation and preservation as the basic mission of the National Wildlife Refuge System, established in 1903. Previously, the mission leaned more toward public recreation. The change is meaningful since it bans alterations to these refuges for recreational purposes.

Texas Legislature¹⁹

1987

  Four relevant land use bills were considered in the 70th Session of the Texas State Legislature. First, a fund for highway construction, in the form of a constitutional amendment was passed unanimously, representing a pro-development, acquisition based policy. In general, this represented a loss of land to development, and opponents furthermore claimed that nearby areas would be degraded from externalities of the new projects. Similarly, a fund for water projects was unanimously authorized over the objections of environmentalists who feared it would claim too much undeveloped land.

An annexation bill was passed in this session, which curbed limited purpose and strip annexation. Since this policy area is not as clearly linked to land use as are more straightforward development or preservation efforts, some explanation is in order. Its relevance to the land use debate is summed up by the position of the opponents of this bill, who maintained that "cities should be given more land-use controls, not less. Since there are no state, regional or county land-use controls, cities are the only government entities that can effectively limit and plan development to protect homeowners and the environment." Thus, annexation concerns not just the rights and responsibilities of cities to establish rules and provide services for annexed areas. It also implies a decreased likelihood of unlimited and uncontrolled development. Conversely, limits on annexation are linked to unfettered development, making this bill (and others like it) regulatory and pro-development.

A notable failure in 1987 was the attempt to establish the Texas Rivers Conservation System, a program to provide money to purchase riparian lands (or conservation easements on those lands), which died in Senate committee. The purpose was to preserve these lands from development as well as to allow continued public access, thus containing a preservationist goal linked to an acquisition based strategy. There was no regulation component and even opponents did not claim it would interfere with the rights of private owners who chose not to sell their land or conservation easements to the state. The main objection here was that private owners whose neighbors sold their property or easement rights would have their property rights abridged. This property right protection "once removed" is an early indication of the power of this concept in Texas and the degree to which it potentially handicaps even non-regulatory attempts at land preservation.

1989

  The annexation issue appeared again in this session, as the legislature (in a bill also designed to mandate the provision of city services to annexed areas within 4.5 years) further limited the land use zoning regulations cities could impose. Also approved was a bill that allowed the Texas Department of Parks and Wildlife to participate with local governments in applying federal regulations on a regional basis. Since this bill represents a minor alteration to the process by which federal regulations are applied, it cannot properly be considered a state regulation bill. Because it also contains a component allowing local governments to purchase land that represents habitat for at-risk species, it can be considered an acquisition based means to achieve preservation.

The previous sessions' river bill returned, this time named the Texas Rivers Protection System, again attempting to preserve riparian lands. This time it passed the Senate and was reported out favorably from House committee but died in the House Calendar Committee.

1991

  Only one relevant land use bill passed in this session. This classic example of an incentive-based preservation policy allowed privately owned land set aside for indigenous wild animal habitat to be appraised as agricultural property, thus qualifying for property tax benefits. Pro-conservationists championed this as a strategic means to achieve land preservation.

1993

  In this seventy-third session of the legislature, a key bill passed but was ultimately vetoed by Governor Richards. This regulatory, pro-development policy restricted the actions of local governments by stating that cities could not impose any restrictions on developers that were not in place when the original plat approval was granted. The bill was passed mainly in response to the City of Austin's limitations on development in the Barton Creek area, which were highly contested by local developers. More broadly, however, this is an illustration of the power of the regulatory backlash gaining strength nationwide in this time period.

This year also saw the creation of the Edwards Aquifer Authority (EAA), which represented a preservationist and regulatory government entity. Although the EAA is more common associated with its functions of maintaining water quality and quantity, it also has authority to limit land development in the aquifer recharge zone as well as in endangered species habitat areas such as the Comal and San Marcos springs. This policy is notable because it is the only regulatory, preservationist effort from the legislature in this time frame. However, it was in fact necessitated by a federal court directive to the state to manage the aquifer, and remains one of the most controversial of environmental issues in Texas (Walther 1995).

1995

  This session was again marked by the precepts of the property rights movement. The legislature passed the Private Real Property Rights Preservation Act, which can roughly be characterized as a pro-development, regulation policy. The bill allowed citizens who have suffered a 25% or greater reduction in their property value as the result of a local government regulation to sue for compensation. Thus, for example, if a city imposed development restrictions on a tract of land that had the effect of reducing the land's value, the owner could sue the city for damages. This right would not extend to local government actions taken to enforce federal regulations.

The "grandfather" policy of the previous session, restricting the post-platting imposition of development restrictions, was now passed and signed by newly elected Governor Bush. The impact of these two policies together on the ability of local governments to restrict development in any way has been enormous, as shall be made more clear in the section below on San Antonio city policies.

One additional effort to limit constraints, in this case the efforts of state executive agencies such as the Department of Agriculture, Texas Natural Resources Conservation Commission and the General Land Office, died in House committee. It was meant to require cost-benefit analyses of all environmental regulations before they could be implemented.

1997

  This session completed the anti-preservationist trilogy by passage of the cost-benefit analysis bill, which had died in the previous session.

San Antonio City Council ²⁰

  Limits on land development passed by the San Antonio City Council are mainly linked to the designation of certain zoning districts in which specific attempts are made to preserve existing open lands.²¹ In 1987, the Edwards Aquifer Recharge Zone District was created. It restricts some development in this sensitive area by limiting the siting of any facilities that might release toxins or in some way compromise the aquifer. Thus, it is only a limited preservation policy. In fact, even development that does include potentially hazardous activities can be exempted from the regulation if practices designed to protect the aquifer can be demonstrated.

Residential/Agricultural districts, created in 1990, are "designed to protect the essentially open character of residential/agricultural districts by prohibiting the establishment of scattered businesses." However, this limitation on scattered business development is deemed necessary because it "might inhibit the best future urban utilization of the land." This language in the ordinance is a classic illustration of the conservationist philosophy (referred to in Endnote 2), in which land is preserved for later development.

Planned Unit Development Districts also promote preservation to a degree. The ordinance is designed to "protect the natural features of a site that relate to its topography, shape and size and to provide for a minimum amount of open space."

In addition to these various districts, the Tree Preservation Ordinance went into effect in 1997. Although technically focusing only on arboreal protection, it is potentially a land preservation policy as well, since the necessity of preserving trees could make some development unfeasible. However, this is a preservation regulation with limited effect. Even at face value, the limitations are minimal. No single trees are protected, only a certain percentage of certain trees in certain areas (City of San Antonio 1999). More importantly, due to the "grandfather" statute passed by the Texas legislature, all properties that were platted or included in an overall development plan before the ordinance became effective are exempt from its regulations (Peak 1999).²²

U.S. Supreme Court²³

  All of the Supreme Court cases decided in this time frame and of relevance to the development versus preservation debate buttressed property owners' interests and advanced doctrine suggesting that governmental entities would be substantially deterred in their regulatory activities. As might be expected, since no citizen is likely to suffer potentially recoverable damages from an acquisition or incentive based policy, all of the cases (both here and at the state level) involved challenges to regulation.

The first year of this inquiry, 1987, represents an important point in doctrine regarding the constitutionality of governmental Iimitations on property use and the role of the takings provision of the Fifth Amendment this doctrine is a result of decisions in two separate cases.²⁴ 24 The important principle articulated in the First English Evangelical Lutheran Church v. Los Angeles County (107 S.Ct. 1232) was that even temporary restrictions on development (i.e., those later rescinded or found to be unallowable takings by a court) warrant compensation to the property owner if a loss of value ensues. In Nollan v. California Coastal Commission (107 S.Ct. 3141), a conditional beachfront building permit premised on a public access easement was also found to be a misuse of state police power, with the court finding no "essential nexus" between a public lateral right of way across the beach and the state's goal of maintaining visibility of the ocean from the street.

In 1992, a case more directly concerned with development was also decided in the pro-development direction. The Lucas v. South Carolina (112 S.Ct. 2886) decision held that regulations that deprive the owner of all economically viable use of real property are considered takings unless the proposed use of the land would be barred under the "background principles" of state property and nuisance law (Walther 1995). And, in 1994, in Dolan v. City of Tigard (114 S.Ct. 2309), the court found that the imposition of a condition on a permit to enlarge an existing structure was not sufficiently related to the impact of the proposed development, again holding that such conditions violate the takings clause.

Thus, First English limits the ability of governmental entities to issue temporary moratoria against development while Lucas restricts outright development bans. Nollan and Dolan restrict the efforts of governments to compromise goals, i.e., allowing development but only in combination with protected set-asides. Certainly, governments can still accomplish all of these actions, but these decisions suggest that they may have to pay compensation in order to do so.

The degree to which these decisions constitutionally limit the right of governments to regulate development is debatable. But the effects may be more subtle.²⁵ As Platt (1996, 269) states, "the importance of the Dolan case may not lie so much in its narrow legal significance, but in what it is thought to represent, namely a broadening of property owner rights in relation to public land use regulations. This perception, whether or not strictly justified by the decisions themselves, may become a self-fulfilling expectation if political bodies, administrative agencies, and lower courts are persuaded that the pendulum is swinging in the direction of private rather than public interests."

Texas State Courts

  Cases heard in Texas state courts in this period are also limited. Only four cases directly or indirectly involved the rights of local or state government to inhibit development.²⁶ In Woodson Lumber v. College Station(752 SW2d 744, 1988), the plaintiff sued for damages after the city refused to approve a higher density residential development plan. In Scott v. Victoria County (778 SW2d 585), plaintiffs complained that a moratorium on sewer hookups severely curtailed their development plan. In Sunnyvale v. Mayhew (905 SW2.g 234, 1994), a denial of a development application was claimed by the developer to represent an action warranting compensation. And in Taub v. Deer Park (882 SW2d 824, 1994), the claim once again was that the city's refusal to rezone from single family to multi-family residence amounted to a compensable taking of the developer's investment.

In each case, the claim revolved around the concept of inverse condemnation. According to the Texas constitution, "no person's property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person." Such "wrongful taking of property by a governmental entity without compensation to owner is generally referred to as 'inverse condemnation"' (Texas Constitution, Article 1, Section 17).

But each claim was rejected by the court hearing it (Houston Court of AppeaIs, Corpus Christi Court of Appeals, Dallas Court of Appeals, an the Texas Supreme Court, respectively). In a useful summary of the doctrine espoused on each of these cases, the opinion in Taub noted that "the takings clause does not charge the government with guaranteeing the profitability of every piece of land subject to its authority" (882 S.W. 2d 826).

Assessment of Findings

  A pattern of institutional output variation is plainly suggested by this overview. The Texas Legislature emerges as strongly pro-development and weak on preservation, while the U.S. Congress displays a much stronger preservationist record. Ironically, the decisions of the U.S. Supreme Court and Texas state courts were mirror reflections of their legislative analogs, with the former rejecting and the latter accepting limitations on development. Finally, the local city council was active in limiting some development, although it cannot be described as strongly preservationist. A more systematic comparison underscores this pattern.

The easiest relationship to examine is between the outputs of the federal and state legislatures. The first two columns of Table 1 highlight the output of these two venues in the goal and means domains. This focused comparison, which includes only successful legislation and excludes reauthorizations of existing programs (so as not to "double-count" policies), clearly illustrates the dissimilar goals. All successful bills in the U.S. Congress fulfilled a preservation goal, while 70% of Texas policies supported development and property rights. However, the national legislature has been reticent to approach preservation solely from a regulatory direction. The majority of policy action came in the form of the federal acquisition of lands, always more palatable than the "command and control" regulatory strategy.

Column three of Table 1 includes activities of the San Antonio City Council. At face value, this body appears to be the most preservationist of the three, passing only anti-development regulations. Such a conclusion would be unwarranted and misleading, however, given the face value limitations on these regulations and the implications of the legislative "grandfather" provision, as discussed above. Nonetheless, it must be duly noted that the City of San Antonio is attempting to achieve preservationist goals.

Finally, Table 2 compares outputs from the U.S. Supreme Court and the Texas courts. Each venue heard four challenges to local attempts to limit development, and reacted quite differently, with the federal court striking down and the state courts upholding of the challenged actions.

Summary of Findings

  There were two main objectives to this investigation: an overview of contemporary land use policy directions, and a preliminary assessment of systematic institutional variation. In regard to the first objective, the overview has shown land use policies relevant to the Bexar County/San Antonio Municipal area to be mixed. While the local city council has made some efforts at preservation, these efforts are limited in scope and application. In the state judiciary, similar (or even stronger) local regulations have been upheld, but the U.S. Supreme Court has set a quite different precedent. While the U.S. Congress has established several public acquisition programs, their effects in this region may be weak given the strength of private land ownership, although incentive programs aimed largely at persuading farmers to preserve land in its natural state may have some impact. Federal regulations also play a limited role, targeting development only in specific settings such as wetland or cavernous areas. But perhaps the most notable feature of the policy overview is the record of the Texas Legislature. Given the relative lack of resources and existing federal regulations that may render state programs costly and redundant, it should not be surprising that any state would be limited in its regulatory efforts. But, the extent to which this body has pursued a pro-development and property rights strategy is striking.

In regard to the second objective, clear systematic differences emerged from the policy overview. But given the generally inductive nature of this research, what can now be concluded about institutional variation in terms of this policy arena? Actually, the two major legislative bodies reacted much as federalist theory predicts they would, showing sensitivity to majority preferences in output are explained by the fact that, as Madison supposed, the national constituency displayed much more moderate views on the issue. The strong pro-development/property rights sentiment in the state was diluted at the national level, even at the height of the "backlash" movement in the mid-1990s. The Texas Legislature, fully reflecting the state culture of support for property rights and very low enthusiasm for government regulation, has moved almost exclusively to secure continued development rights, while the U.S. Congress, faced with a broader public which seems to want some limitations on development but is still rather reticent about too much government activity, has responded by passing several pro-preservationist policies. Most of these, however, were of the less painful incentive and acquisition variety, and avoided regulation. The city response appears to reflect more moderate preferences as well.

Earlier I noted that, given federalist theses, state and national policies should be dissimilar, but that it was difficult to predict exactly how they would differ (i.e., which would be most likely to pursue preservationist versus development goals). The suggestion here is that there is no consistent answer to this question of substance--states are likely to be consistently more extreme in their output than the national government, but that tendency can conceivably be in either a conservative or liberal direction. State/local variations can be similarly described.

One anomaly remains the Texas courts. Given that they too are elected and exist within the same state milieu as legislators, their continued upholding of local government regulations is somewhat surprising. This is not to say that these justices are necessarily preservationists. Their position is more likely rooted in the general principles of legislative deference and judicial restraint, in which existing laws are presumed valid unless there is clear evidence of unconstitutionality. Interestingly, the current majority on the U.S. Supreme Court in the recent property cases have moved beyond this philosophy of deference, and are increasingly willing to strike down regulations on development. As noted by Freyfogle (1998, 4) the contemporary U.S. Supreme Court is dominated by justices adhering to what he refers to as the traditional understanding of property rights. In this view, "land development must remain possible and economic expectations need protection." While this perspective acknowledges the necessity of some government regulation (thus modifying the strict Lockean/libertarian approach), it is only when the property owner's actions constitute a clear threat to the community that such regulation is constitutionally proper. Thus, the elected state justices do, as Hamilton predicted, react differently than their appointed brethren to similar claims. The variation, however, is in a rather unexpected direction. Although it is too soon to draw conclusions on this evolving area, one potential explanation for this pattern is that, given their elected status, Texas justices feel a sense of unity with the local officials whose actions were challenged, and are reluctant to undercut their authority.

In conclusion, this should be considered as a limited, initial study. Only a narrow area is covered, and the findings cannot be applied to property or environmental issues in general. Although an attempt was made to include all relevant policies, some may remain undetected. Additionally, this is not an in-depth study of the politics of land use in San Antonio, which Plotkin (1987, 120) notes is characterized by "cross-cutting alliances and inter-jurisdictional conflict." Despite all these provisos, however, it is difficult to imagine that the very clear patterns of institutional variation that emerged here are not indicative of the underlying nature of policy output in this realm.

Implications and Recommendations

  Local policy makers and citizens concerned about the loss of land to development in the San Antonio Metropolitan region may find little solace in these findings. This report does, however, provide clues to the most promising avenues for local policy formulation and lobbying efforts.

Given the constraints imposed by the state legislature, the city's best strategy will be to focus on acquisition, either directly or through federal grants. Since resources devoted to regulatory attempts would be diluted by state law (i.e., the grandfather clause in particular), funds will be more efficiently utilized by simply purchasing lands that can then remain under city protection or be transferred to a land trust. Additionally, although state courts to this point have upheld local regulation attempts, U.S. Supreme Court doctrine has been moving sharply in the opposite direction, thus casting doubt on the viability of such actions, especially if challenged in federal court. Certainly, the city has become much more active in pursuing preservation through acquisition, as illustrated by the current effort to purchase parkland (Miller 1999b), as well as a successful attempt to gain federal funds for local land enhancement projects (Huddleston 2000).

Furthermore, legislative lobbying on behalf of the city will be better focused at the state than at the national level. The U.S. Congress already is committed to providing acquisition and incentive opportunities, although, as noted, their focus on large tracts of land makes such funds somewhat unfeasible in this already highly developed area. However, there are potential changes in state law that merit lobbying. Cities such as San Antonio could focus on the more ideologically acceptable acquisition strategy, and lobby the state to make funds available for this purpose, particularly for the small-scale land purchases more amenable to this region. A tougher, but potentially worthwhile, fight would be for modification or revocation of the trilogy of pro-development policies passed in 1995 and 1997. To the extent that other cities are concerned about these restrictions, a local lobbying coalition could be an effective agent for change and a movement toward preservationist goals.

Endnotes

1. The intellectual and rhetorical roots of these different approaches to the environment in general are considered in Freyfogle (1998) and in the collection of essays in Herndl and Brown (1996).
2. The literature on the history of the environmental movement offers a more detailed look at this evolution, as in Chapter 1 of Dowie (1995). One major aspect not addressed here is the conflict between preservationism (which champions the preservation of land for its own sake) and conservationism (advocating the planned use of land and resources so as to more efficiently utilize their economic and recreational benefits). Nester (1997) offers a framework in which he categorizes all natural resource policies as either cornucopian (pro-development), conservationist or preservationist. For my purposes, the preservation versus conservation distinction is simply too subtle, and the policies examined here all fit easily into the more blunt pro-development versus pro-preservation categories.
3. The general philosophy underlying these efforts is succinctly articulated by Wallace Stegner's observation that, "something will have gone out of us as a people if we ever let the remaining wilderness be destroyed" (Nester 1997, 92).
4. Such a provision was contained in the Homestead Act of 1862, which required homesteaders to both cultivate and establish a residence on their land if they wanted to gain title to it. Also see Hart (1996) for an overview of such policies in the colonial era.
5. Certainly Madison and Hamilton do not delve into the complexities of advanced theories such as Shepsle's (1986) notions of the role of institutions in providing solutions to cooperation problems through efficient enforcement mechanisms. Nor do they offer broad-based observations of institutions as part of a web of history, process and national characteristics shaping outcomes in a non-recursive model, another focus of this modern approach (Weir, Orloff and Skocpol 1988). But their assumption that institutions shape motivations and behaviors only by channeling the natural tendencies of participants allies them with the modern theory. A more rudimentary institutional approach would simply, and likely erroneously, assume that institutions can override individual motivations.
6. The extent to which the founders mistrusted the people's will is somewhat exaggerated. Rakove (1996, 134) writes "that they placed little confidence [in majority opinion] not because they regarded the American people as an unwashed mass of the ignorant and selfish but because they feared that cunning leaders would manipulate even well-meaning citizens."
7. Nester (1997) suggests a more predictable series of outcomes--elected bodies generally favor development because of the large campaign donations they receive from wealthy pro-development interests, while appointed courts are more often anti-development because they have nothing to gain from the special interests. But there is no real theoretical framework to this assessment, and it ignores the many outlier cases he mentions (i.e., where Congress favors preservation and where the Court favors development).
8. EIazar's assessments are also supported empirically by Wright, Erikson and McIver (1985), who rank Texas as the seventh most conservative state. Also see Somma (1997) for an examination of the role conservative ideology has played in one particular case of water policy in West Texas.
9. See Bacot and Dawes (1999) for empirical support for much of Lester's classifications, including the assignment of Texas to the "delayer" class of states.
10. Two were on the ballot in Austin, and one in College Station. All three passed.
11. At the appellate level, state justices are elected to six year terms in partisan elections.
12. Certainly the executive branch (at both the federal and state level) makes influential decisions, but these are at least nominally within the realm of implementation. This inquiry solely addresses formulation issues.
13. In the overview section, I discuss all policies that were formally proposed in the U.S. Congress and Texas Legislature, whether or not they ultimately passed. However, this was not feasible for the San Antonio City Council, where I was only able to find information on ordinances successfully passed. In the judicial arena, only cases that are placed on the courts' dockets could be included here, and so some potentially relevant cases that these courts simply chose not to hear remain unstudied.
14. The San Antonio metropolitan area is characterized as South Texas Brush Country but also includes limited wetlands and riparian areas most of which are on privately owned properties (Texas Center for Policy Studies 1995). See Platt (1996) for more on the link between geography and land use issues.
15. The decision to stop in 1997, as opposed to 1998, was largely premised by the rules of the Texas Legislature, which meets every two years and thus was inactive in 1998. The 1999 legislative session occurred at the same time of this research and so could not be adequately analyzed.
16. Information on activities of the U.S. Congress was obtained from the Congressional Quarterly Almanac. Relevant policies were ascertained from the "Energy and the Environment" section, as well as indexed references to the topics, "land use," "conservation," "environmental protection," "wildlife," "wetlands," and "bureau of land management."
17. For insight into the importance of cave protection to this area, see Beatley, et al. (1995) and Needham (1998).
18. Also see Switzer (1997) on the lack of a meaningful environmental platform in the 1992 Clinton campaign.
19. Information on the Texas Legislature was obtained from Major Issues of the Legislature, published by the House Research Organization, and Enactments of the Legislature, produced by the Texas Legislative Council.
20. This information was obtained from the San Antonio Unified Code.
21. There are many other special zoning districts that seek to shape development to a particular type (e.g., single family housing districts). I focus only on those districts that potentially seek to limit development in some way.
22. The ordinance may be saving trees in a more indirect way by raising awareness and putting pressure on developers to preserve as many trees as possible, regardless of the leeway afforded by the ordinance (Bush 1999b; Monroe 1999).
23. The cases here and in the following section were found through the West Decennial Digest, under various "constitutional law" (70.1; 70.3; 84.5; 123; 277; 278; 278.1), "zoning and planning" (7; 36; 36.5; 40; 68; 70) and "eminent domain" (2; 3; 4; 5; 12; 13; 14; 15; 69; 114;1) subheadings, as noted. All cases were read; only relevant decisions were retained.
24. Keystone Bituminous Coal Company v. DeBenedictus (107 S.Ct. 1232) is sometimes referred to as a component of the 1987 takings "trilogy," but it is not included here as it does not even indirectly concern development.
25. For example, in an analysis of the 1987 decisions, Lazarus (1990, 40) describes "a judicial bias in favor of property rights in land," and adds that "the court seems more respectful of individual rights in that context and more skeptical of the propriety of governmental intrusions within that traditionally private sphere." But in her summary of the same set of cases, O'Hara (1995, 57) concludes that "the Court has not extended property rights protections very far, even considering recent decision in favor of landowners."
26. Cases from the Texas Supreme Court as well as from appellate courts in all districts are included, as precedent from any Texas appellate court may ultimately be used as precedent in the San Antonio Appellate District, and be closely watched and heeded by local municipalities anticipating potential lawsuits.

Bibliography

Bacot, A. Hunter and Roy A. Dawes. 1999. "Comparative State Environmental Effort: Measuring Institutional Capability and Environmental Commitment." Presented at the annual meeting of the Southwestern Political Science Association, San Antonio, March 1999.

Beatley, Timothy, et al. 1995. "The Balcones Canyonlands Conservation Plan: A Regional Multi-Species Approach." In Collaborative Planning for Wetlands and Wildlife, D.R. Porter and D. A. Salvesen, eds. Washington, D.C.: Island Press.

Bosso, Christopher J. 1997. "Seizing Back the Day: The Challenge to Environmental Activism in the 1990s." In Environmental Policy in the 1990s, Third Edition, N.J. Vig, and M.E. Kraft, eds. Washington, D.C.: CQ Press.

Brasher, Philip. 1999. "Farmland development accelerating in 1990s." San Antonio Express News 12/10/99: 1 AA.

Brooke, James. 1998. "Land Trusts Multiplying, Study Shows." New York Times 9/29/98: A7.

Bush, Rudolph. 1999a. "Conservancy Eyes Hill Country." San Antonio Express News 7/28/99:IH.

________.1999b. "Ordinance fails to stop bulldozers." San Antonio Express News 5/5/99:IH.

Calvert, Jerry W. (1989). "Party Politics and Environmental Policy." In Environmental Politics and Policy: Theories and Evidence. J.P. Lester, ed. Durham, NC: Duke University Press.

Cardwell, Cary. 1999. "Texas Parks Facing Shortfalls Seeking Ways To Spark Dollars." San Antonio Express News 3/31/99: 1 A.

Congressional Quarterly Almanac. 1987-1997. Washington, D.C.: CQ Press.

Dowie, Mark.1995. Losing Ground. Cambridge: The MIT Press.

Elazar, Daniel. 1984. American Federalism: A View from the States, Third Edition. New York: Harper & Row.

Freeman III, A. Myrick. 1997. "Economics, Incentives, and Environmental Regulation." Environmental Policy in the 1990s, Third Edition, N.J. Vig, and M.E. Kraft, eds. Washington, D.C.: CQ Press.

Freyfogle, Eric T. 1998. "Owning the Land: Four Contemporary Narratives." Florida State University Journal of Land Use and Environmental Law (http://www.law.fsu.edu/journals/landuse/Vol132/Frey.htm).

Haag, Stefan, D., et al. 1997. Texas Politics and Government. New York: Longman.

Hamilton, Alexander, James Madison, and John Jay. 1961. The Federalist. Cambridge: Harvard University Press.

Hart, John F. 1996. "Colonial Land Use Law and Its Significance for Modern Takings Doctrine." Harvard Law Review 109:1252-1299.

Herndl, Carl G., and Stuart C. Brown. 1996. Green Culture: Environmental Rhetoric I Contemporary America. Madison, Wisconsin: The University of Wisconsin Press.

House Research Organization. 1987, 1989, 1991, 1993, 1995, 1997. Major Issues of the Legislature. Austin, Texas: Texas House of Representatives.

Huddleston, Scott. "Federal funds help two local projects." San Antonio Express News 2/1/00:IB.

Kraft, Michael E. 1996. Environmental Policy and Politics. New York: HarperCollins.

Land Trust Alliance. 1999. "November 1998 Open Space Acquisition Ballot Measures." (http://Ita.org/referanda.html)

Lazarus, Richard J.1990. "The Changing Context: Federal Law." In Wipeouts and Their Mitigation: The Changing Context for Land Use and Environmental Law, J. DiMento, ed. Cambridge, Massachusetts: Lincoln Institute of Land Policy.

Lester, James P. 1994. "A New Federalism? Environmental Policy in the States." In Environmental Policy in the 1990s, Second Edition, N.J. Vig and M. E. Kraft, eds. Washington D.C.: CQ Press.

Lester, James P., with Patrick M. Keptner. 1984. "State Budgetary Commitments to Environmental Quality under Austerity. Western Public Lands, J.G. Francis and R. Ganzel, eds. Totowa, NJ: Rowman & Allanheld, Pub.

Mazmanian, Daniel A., and Paul A. Sabatier. 1989. Implementation and Public Policy. Lanham, Maryland: University Press of America, Inc.

Miller, Anne.1999a. "Easements preserve pristine acreage." San Antonio Express News 6/2/99:1H.

________. 1999b. "City Acquiring at least 1,500 acres for new parks." San Antonio Express News 12/8/99:5H.

Mitchell, Alison. 1999. "2 Parties Seek to Exploit Nonstop Suburban Boom." New York Times 5/4/99:A1.

Moe, Richard. 1998. "Fed Up With Sprawl." New York Times 11/9/99:A19.

Monroe, Melissa S. 1999. "Experts urge relocation of trees." San Antonio Express News 5/12/99:1H.

Needham, Jerry. 1998. "9 local species may be termed endangered." San Antonio Express News 12/31/98:1B

Nester, William R. 1997. The War for America's Natural Resources. New York: St. Martin's Press.

O'Hara, Erin. 1995. Property Rights and the Police Powers of the State: Regulatory Takings: An Oxymoron?" Land Rights: The 1990s' Property Rights Rebellion, B. Yandle, ed. Lanham, Md.: Rowman & Littlefield Pub., Inc.

Peak, Howard. 1999. "Legislature holds hammer on regulation." San Antonio Express News 7/25/99:1G

Platt, Rutherford H. 1996. Land Use and Society. Washington D.C.: Island Press.

Plotkin, Sidney. 1987. Keep Out: The Struggle for Land Use Control. Berkeley, CA: University of California Press.

Purdum, Todd S. 1999. "Suburban 'sprawl' takes its place on the political landscape." New York Times 2/6/99:A1.

Rabe, Barry G. 1997. "Power to the States: The Promise and Pitfalls of Decentralization." Environmental Policy in the 1990s, Third Edition (N.J. Vig and M.E. Kraft, eds.) Washington, D.C.: CQ Press.

Rakove, Jack. 1996. Original Meanings. New York: Alfred A. Knopf.

Rockman, Bert A. 1994. "The New Institutionalism and the Old Institutions. " New Perspectives on American Politics, L.C. Dodd and C. Jillson, eds. Washington, D.C.: CQ Press.

San Antonio, City of, Department of Building Inspections. 1999. "Tree Preservation Ordinance." San Antonio, Texas: City of San Antonio.

San Antonio Unified Code. 1999. San Antonio, Texas: City of San Antonio

Shepsle, Kenneth A. 1986. "Institutional Equilibrium and Equilibrium Institutions." Political Science: The Science of politics, H.F. Weisberg, ed. N.Y.: Agathon Press.

Somma, Mark. 1997. "Institutions, Ideology, and the Tragedy of the Commons: West Texas Groundwater." Publius 27:1-13.

Stimson, James A. 1999. Public Opinion in America, Second Edition. Boulder, Colorado: Westview Press.

Switzer, Jacqueline Vaughn. 1997. Green Backlash. Boulder, Colorado: Lynne Rienner Publishers, Inc.

Texas Center for Policy Studies.1995. Texas Environmental Almanac. Austin, Texas: Texas Center for Policy Studies.

Texas Legislative Council. (1987, 1989, 1991, 1993, 1995, 1997). Enactments of the Legislature. Austin, Texas: Texas Legislative Council.

Texas Wetlands Conservation Plan, 1997.

U.S. Commerce Department Data, 1997.

"Voters and the Environment." 1998. New York Times 11/5/99:A18.

Walther, Ann. 1995. "Property Rights: A Balance of Interests." Austin, Texas: House Research Organization, Texas House of Representatives.

Weir, Margaret, Ann Shola Orloff, and Theda Skocpol, eds. 1988. The Politics of Social Policy in the United States. Princeton: Princeton University Press

Wright, Gerald C., Robert S. Erikson, and John P. McIver. 1985. "Measuring State Partisanship and Ideology with Survey Data." The Journal of Politics 47:469-489