Transcript Growth Management - College of Architecture, Planning

Growth Management
The Timing, Phasing, Scheduling and
Management of Growth
The Developer’s Position
The City’s Position
Definition
• A combination of plans, programs, policies,
and regulations designed to shape the:
–
–
–
–
–
Timing
Location
Phasing
Direction
Compaction
Of Growth and Development
Some Techniques
• The most popular methods of growth
management are:
–
–
–
–
–
–
Permit reduction and rationing
Scheduling of public infrastructure
Incentives and bonuses
Moratoria
Urban Boundary Lines
Scheduling and provision of public and private
transportation facilities
Ruth Golden v Town of
Ramapo New York
• This case was appealed to the N.Y. Supreme
Court because of amendments made to the
Ramapo Zoning Ordinance in 1969
Rockland
Township
STATE OF
NEW YORK
STATE OF NEW JERSEY
NYC
Some Background
• Ramapo’s population increased 286% from
1940 – 1970
• At an annual average of 1,000 residential
permits per year, the township increased
from 23,000 to 58,000 during the 1960s
• At the then current growth rate, Ramapo was
expected to increase to 120,000 by 1985
The Management Plan
• The plan called for Ramapo to extend
municipal services over an 18 year period
based on three 6 year capital improvement
plans
• Subdivisions located in the capital
development area would all have to apply for
a special development permit
• To receive a permit, each development must
accumulated 15 points before it is approved
The Point System
• Development points were given for the
following:
–
–
–
–
–
Public sanitary sewers or approved alternatives
Drainage facilities
Parks and recreation facilities – including schools
Collector and main secondary roads
Firehouses and police facilities
Implementation
• The developer can advance the date of
construction by agreeing to provide those
improvements that would total 15 points
• The overall strategy is to bring about a
scheme of orderly growth that recognizes the
importance of “concurrency” in land use
planning
The Controversy
• Ruth Golden and the Construction Industry of
Rockland County bring suit
• The contention is that the controls were
enacted solely to control the level of
population growth and not orderly growth
• In other words, Ramapo feels that it has too
many people and seeks to limit the future
population – this is beyond the power of local
government and the enabling legislation
Preliminary Legal Analysis
• The Court says that it will not tolerate, under
any guise, a plan that is designed to exclude
people or limit the population of an area
• So, in this a scheme to limit the population so
that a government can avoid its duties to
accommodate growth, or
• Is this a carefully crafted management plan
to meet the needs of the future and balance
a cohesive community?
The Decision
• The purpose of the ordinance is to promote “timed”
growth to assure continuous development within the
town’s capabilities
• The town does not seek to freeze population at
present levels
• It seeks to bring about the efficient use of land
• In short, the town is not trying to be left alone and
only be allowed to prevent the type of tragic sprawl
and development problems so prevalent in
essentially rural, high growth areas
Conclusion
• We only require that communities confront
the challenge of population growth with open
doors. Where in grappling with that problem,
the community undertakes, by imposing
temporary restrictions upon development, to
provide required municipal services in a
rational manner
How Not To Do Growth
Management
• The case of Belle Harbor Realty v Kerr
– In 1972 Belle Harbor Realty applies for a permit to
construct a 4 story retirement center and nursing
home
– A group of residents tried to block the issuance of
the permit on the basis that existing sewer
facilities were inadequate to serve this site
– The trial court found for the City and dismissed
the suit
After the Permit
• Because of continual complaints over sewer,
the City investigates and finds that sewer
were installed in 1889 and were grossly
inadequate to serve the existing development
let alone the new care home
• The City revokes the permit
• Notifies everyone that the City is considering
a new sewer system
Belle Harbor Realty is Ripped
The Realty Company sues and
says that the City is avoiding its
duty and simply buying time until
it can rezone their property and
thereby avoid the cost of
replacing the sewer system in this
area
The Court’s Analysis
• The trial court held that it was impermissible
for the city to punish a single landowner
because of its own failure to construct
adequate sewerage facilities.
• The Appeals Court reversed saying that an
overflowing, antiquated, polluting sewer
system is a rational basis for delaying
development
• HOWEVER
In The Final Analysis
• To justify interference with the beneficial
enjoyment of property the municipality must
establish that it has acted in response to a
dire necessity, that its action is reasonably
calculated to alleviate or prevent the crisis
condition, and that it is presently taking steps
to rectify the problem.
• In other words, it is a TEMPORARY action
that demands immediate attention
Construction Industry Association of
Sonoma County v City of Petaluma
• Case decided in 1975
Some Background
• In the1950's and 1960's, Petaluma was a relatively
self-sufficient town
• It experienced a steady population growth from
10,315 in 1950 to 24,870 in 1970
• Eventually, the City was drawn into the Bay Area
metropolitan housing market as people working in
San Francisco became willing to commute longer
distances to secure relatively inexpensive housing
available
• By November 1972, according to unofficial figures,
Petaluma's population was at 30,500,
• An increase of almost 25 per cent in little over two
years. The 2004 population is 54,000
Actions
• The City adopted a temporary freeze on development
in early 1971 by using a moratorium
• The city undertook a special housing study for the
next 6 months
• Found a geographical, size, and moderate price
impact throughout the housing market
• Also documented the unnecessary sprawl caused by
rapid growth
Petaluma River
The Petaluma Plan
• A 5 year plan
• Will issue 500 permits per year (current 1973 average is 2000
per year)
• Applies only to “development units” defined as housing that is
part of a development of 5 units or more does not include
single family, duplex, tri-plex unless they are part of a larger
development
• Offers a 10% variance (50 units) per year
• The Residential Development Control System allocates the 500
permits equally between east and west and by points for
conformance to Master Plan, architectural control and providing
low income units
The Petaluma Plan - II
• A 200 ft. Greenbelt will be extended all around the
city
• The urban limit line will serve the cities housing
needs for at least 10 and perhaps 15 years
• Infill lots near the City’s Center will be allocated first
• Sonoma County established stringent subdivision and
appropriate acreage parcel controls for the areas
outside the urban extension line of the City and to
limit severely further residential infilling
The 200 ft. Greenbelt
Trial Court
•
•
•
•
The trial court found certain parts of the plan unconstitutional
The 500 unit limitation violated the constitutional right to travel
The California Court of Appeals reversed
The Construction Industry Associations appealed to the
Supreme Court
• The primary federal
• The claim upon which this suit is based - the right to
travel or migrate - is a claim asserted not on the
• appellees' own behalf, but on behalf of a group of
unknown third parties allegedly excluded from
• living in Petaluma.
Construction Industry’s Claim
• Substantive Due Process
– Appellees claim that the Plan is arbitrary and unreasonable
and, thus, violative of the due process clause of the
Fourteenth Amendment.
– According to appellees, the Plan is nothing more than an
exclusionary zoning device, solely to insulate Petaluma from
the urban complex in which it finds itself.
– The Association and the Landowners reject, as falling
outside the scope of any legitimate governmental interest,
the City’s purpose for adopting the plan
Decision – Balancing Test
• Our ruling is that the Petaluma Plan represents a
reasonable and legitimate exercise of the police
power
• The local regulation here is rationally related to the
social and environmental welfare of the community
and does not discriminate against interstate
commerce or operate to disrupt its required
uniformity
Griffin Homes v City of Simi
Valley
• Griffin Homes, Inc. owns two large parcels of land
located in the City of Simi Valley.
• Griffin Homes seeks to build 187 dwelling uinits on a
parcel known as Greenbriar and 217 homes on a
parcel known as Hopetown.
• Griffin expects to complete its development in 1992.
Simi Valley – Fast Facts
• Incorporated in 1969
• Current population 116,000
• Location – 45 minutes northwest of L.A.
The Mechanics
• In 1986 the City enacted a "growth control"
ordinance which limits the number of building
permits that City may issue during a given year
• Construction projects are to be evaluated by a point
system and then placed in a queue based upon their
ranking under the point system
• Recipients shall be maintained in order until the
project has received all of its grants to complete
buildout.
Plans Go Astray
• Griffin Homes, applied for a permit to build 63 units
in phase December 1987
• Griffin alleges that it was ranked number one in the
queue by the city.
o Griffin was required to construct $2,840,481 worth of
infrastructure
• Griffin’s plans went astray: following the award of the
permit to build 63 units
• Because of the delay the City denied its application
to complete Greenbrier and removed Griffin from the
queue
Griffin Homes is Displeased
Court Action
• Griffin alleges a taking of property rights
• Also files a writ of mandamus – “Do your job and
give us the permits”
• Griffin is frustrated when it is found that their claim is
not ripe for adjudication
• Griffins argues that the regulation is arbitrary in that
does not substantially advance any legitimate states
interest – therefore ripeness is not an issue
Court Action - cont
• Griffin argues that the city is ignoring its rights
• State argues there has long been concern over the
harmful consequence visited upon urban centers as
result of rapid and uncontrollable growth
• The court notes that in CA. one sees not only the
consequences of unplanned, careless or deliberately
destructive past activity; one also gets the feeling
that the worst is yet to come.
• Laws such the Simi ordinance, that serve to protect
a community from the ill effects of haphazard
urbanization, and which promote the orderly
development, are a proper exercise of the police
power
Stoney Brook v Town of Fremont
1984 – New Hampshire
Incorporated 1764
1950 Pop. = 694
2000 Pop. = 3,710
Why The 3% Rule?
• Faced with high growth and massive development
costs the City of Fremont prepares a management
plan
• The number of building permits to be issued for new
dwellings shall be limited annually to 3% of the
number of dwellings in the town at the start of each
calendar year.
• These permits shall be issued based on date of
application, except that not more than three (3)
permits may be issued per developer or within the
same subdivision in a calendar year."
Mechanics - cont
• Once a developer has accumulated enough building
permits to build one phase (approved portion) of a
project, they must begin construction on that phase
before he can pull permits for the next phase.
• Such a project shall not lose its place in the queue
Background
• Stony Brook owns a tract of land that it divided into
a project of 52 homes
• After the management plan is passed, Stony Brook
applies for 4 permits but is only issued three
The 3% Rule
• The plan assumed "a fairly constant growth rate of
3% or less per year based on existing growth
regulation."
• Growth controls must be:
• Reasonable and nondiscriminatory
• Product of careful study
• Reexamined constantly with a view toward relaxing or
ending them
• Accompanied by good faith efforts to increase the capacity
of municipal services
• Controls must not be imposed simply to exclude outsiders,
especially outsiders of any disadvantaged social or economic
group.
The Argument
• Stoney-Brook's argument is that the 3% growth rate
was not the normal, unrestricted growth rate, but
was an arbitrary figure when it was selected in 1975
as the standard for the limitation of new dwelling
building permits.
• A 1975 member of the planning board testified that,
while population trends were discussed at that time,
a figure of 3% was "taken out of a hat" because
"that seemed to be the normal growth at that time."
The Court Says
• Comprehensive planning with a solid scientific,
statistical basis is the key element in land use
regulation.
• It is unrealistic to suggest that limiting its growth
indefinitely to 3% per year is guiding the town's
growth, as expressed in its community plan, in "a
reasonable, responsible and conscientious manner"
when, by its own figures, the average growth in the
seven abutting towns is almost double that growth
rate.
3% Is Invalid
• The court invalidates the growth management plan insofar as it
is based on the invalid average growth rate
• The plan is also invalid since it fails to address the essential
element timing – growth control program are not permitted to
continue on a permanent basis
• “We recognize Fremont's desire to preserve its small
town environment and rural atmosphere. However,
Fremont itself has recognized that it "is in the center
of the fastest growing area of New Hampshire."
Permit Rationing
• Schneck v Village of Hudson, Ohio
• Facts:
– The Village of Hudson is created by a merger of
the former city and several townships
– The population is tripled
– The Village is best characterized as an “upscale
suburban community” with a lot of houses and
few businesses or industry
– Average cost of housing is $320,000 in 1996
The Village of Hudson
Current growth rate is
3.5% per year
Background
• Following a comprehensive planning study Hudson
adopts a long range strategy or reaching a
population level of no more that about 30,000
• The conclusion reached is that the Villages’ present
growth rate has strained their ability to provide the
essential infrastructure necessary for development
• Permits would be rationed or slowed to reflect this 25
year growth target
• Developers would have to achieve a Ramapo style
point system to achieve a development proposal
Inner Workings
• Developers that achieve the necessary points
would go into a lottery or drawing pool
(random) each year to be selected for
approval
• About 20% of the yearly permits will be
withheld and given for “affordable housing,”
elderly housing, and on those lots with have
direct access to facilities
Schneck’s Dilemma
• Schneck is the developer of a project know
as Westbridge Phases II and IV.
• Schneck says that he has borrowed a great
deal of money to put in streets and other
infrastructure
• Proceeds from lot and housing sales are used
to right-down the bank loan
Discussion
• The Court says: “OK, we can understand
why the city needs this program but we fail
to see why it should be applied to those
some 500 lots in the city that are already
final platted, where infrastructure is installed,
and ready to go?
• So, why do you deny the lots that are ready
to go – there are no infrastructure costs and
the whole plan is based on the fact that the
city will have to supply infrastructure
Injury
• Schenck establishes evidence of irreparable injury.
He states that in an affidavit that in May 1995 he
executed a $620,000 development loan to be repaid
in three years, the anticipated time frame expected
to sell the 27 lots in the two phases of the
Westbridge Development which he owns. He stated
that the ordinance impairs his ability to sell lots to
builders in the subdivision, thus effectively denying
him the value of his investment.
Conclusion
• The court notes that the overall plan is a good one
but it is flawed in the way that it deals with “lots that
are already approved.”
• The City shall be enjoined from enforcing its Zoning
Code related to: a. Any lots in the City which have
obtained preliminary or final plat approval and are
currently improved with 1) water service 2) sewer,
and 3) roads; and b. Any other lots in the City which,
as of the date of this order, have obtained
preliminary or final plat approval and are not
currently improved with the infrastructure above; but
only when those other lots are fully improved with
such infrastructure.