Growth Management

1. Growth Management A regulatory program by any other name will smell as . . .

2. Why manage growth? • Very many people were not happy with the free market controls on development. Therefore politicians were not happy. • Zoning, blessed by Euclid and enabled by the SSZEA • Subdivision regulation, also judicially blessed and enabled • But these dealt with the site itself and increasingly the concern was off-site. • Also, how do we address development questions in the neighboring city/county?

3. For example • In 1972, over 60% of the land area in Florida had no development controls • No zoning • No subdivision regulations • No building code or inspections • In 1972 only Dade County, out of the 67, had anything approaching a comprehensive plan.

4. In Florida and throughout the country automobile suburbs were sprouting up everywhere and • Environmental quality was rapidly declining • “Somebody should do something!” • “Somebody” did.

5. In the Nation . . . The National Environmental Protection Act of 1969 • Coastal Zone Management Act of 1972 • The Clean Water Act of 1972, • The Clean Air Act of Act of 1972. • The Endangered Species Act of 1972. But the states were also involved.

6. In Florida . . . • The Florida Air and Water Pollution Control Act of 1967 • The County and Municipal Planning for Future Development Act in 1969(the SSZEA) • The Beach and Shore Preservation Act of 1971

7. Continued . . . • The Environmental Land and Water Management Act of 1972 • The Water Resources Act of 1972, • The Land Conservation Act of 1972. • The Local Government Comprehensive Planning Act of 1975. • The New Communities Act of 1975. • Omnibus Growth Management Act of 1985.

8. The “Smart Growth” movement • Governments, largely local governments, have tended to “chase” development with improvements • Roads • utilities • Parks • Schools • Fire stations • This is the most expensive way of doing it – some called it “dumb.”

9. “Smart Growth” • Figure out, i.e., plan, where development is going and get out ahead of it with • Roads • utilities • Parks • Schools • Fire stations • It would be much cheaper – some called it “smart.”

10. Maryland • The allocation of state funds for local “infrastructure” would be done on the basis of consistency with state “smart growth” guidelines . . . • Counter urban sprawl • Encourage redevelopment • Encourage infill • Encourage farmland preservation • If the local governments don’t want to play, the state doesn’t pay.

11. Local Efforts • Local governments began managing the nature and pace of development. • Two generic types • Timed, sequential controls • Also known as Adequate Public Facilities (APF) • Associated with Ramapo, New York • Rate of growth controls • Nicknamed ROGO • Associated with Petaluma, CA

12. Ramapo, New York The First “Growth Management” Plan • The Problem • Accelerated Growth • Inadequate Public Facilities • Unwilling to Raise Taxes to the Extent Development Would Require

13. The Tappan Zee Bridge The City

14. The Ramapo Plan • Adopted New Comprehensive Plan That: • Set Facility Standards • Required a “Special Permit” that would be issued only if those facility standards are met • Adopted a 3 phase 18 Year Capital Improvement Program that provided for the Township to provide all needed facilities to all affected properties.

15. The Ruth Golden Property Rockland County N III II Spring Valley I Sloatsburg Hillburn Suffern Ramapo Township

16.  Consistent With Zoning?  Adequate Public Facilities?   Make Improvements?  No Yes    Issue “Special” Permit  No Yes    Develop Property  Under Threshold? Yes     No

17. (1) Sewers (a) Public sewers available in RR-50, R-40, R-35, R-25, R-15, and R-15S districts . . . . . 5 Points (b) Package Sewer Plants . . . . . . . . . 3 Points (c) County approved septic system in an RR-80 district . . . . . 3 Points (d) All others . . . . . . . . . . . . . . . . 0 Points RAMAPO APPROVAL CRITERIA

18. (2) Drainage Percentage of Required Drainage Capacity Available • (a) 100% or more . . . . . 5 Points • (b) 90% to 99.9% . . . . . 4 Points • (c) 80% to 89.9% . . . . . 3 Points • (d) 65% to 79.9% . . . . . 2 Points • (e) 50% to 64.9% . . . . . 1 Point • (f) Less than 50% . . . . 0 Points

19. (3) Improved Public Park or Recreation Facility Including Public School Site • (a) Within 1/4 mile . . . . . 5 Points • (b) Within 1/2 mile . . . . . 3 Points • (c) Within 1 mile . . . . . . . 1 Point • (d) Further than 1 mile . . 0 Points

20. (4) State, County or Town Major, Secondary or Collector Road(s) Improved with Curbs and Side- Walks • (a) Direct Access . . . . . . . 5 Points • (b) Within 1/2 mile . . . . . 3 Points • (c) Within 1 mile . . . . . . . 1 Point • (d) Further than 1 mile . . 0 Points

21. (5) Fire House • (a) Within 1 mile . . . . . . . 3 Points • (b) Within 2 miles . . . . . . . 1 Point • (c) Further than 2 miles . . 0 Points.

22. 15 Points = Special Permit • Available Sewers 5 5 • 75% of Drainage Capacity 2 7 • Park Within 1 Mile 1 8 • Direct Road Access 5 13 • Fire House 2.5 miles 0 13 NO PERMIT

23. But . . . . . • Increase Drainage Capacity From 75% to 91% and . . . • Drainage Points Go to 4 and Total Points Go To 15 So . . . . . SPECIAL PERMIT ISSUED

24. How Many Ways to Add to 15? • Everything Already There? Get Permit. • Less than 15 – • The Township will provide needed items on a phased – 18 year – schedule • Property owner can provide needed items whenever owner wishes (who’s money?) • Develop property under the threshold (2 acre or larger lots) • When points equal 15, permit is issued. Until points equal 15, no permits will be issued

25. Golden v. Ramapo, 285 N.E.2d 291, 1972 • Several people and groups filed suit. • Associations could show no injury, thus lacked standing. • Ruth Golden had applied for a plat approval without first applying for a “special permit.” She challenged the town’s authority to require her to get the “special permit.”

26. New Your Court of Appeals • “[T]he challenged amendments are within the municipality's delegated authority to determine the lines along which development shall proceed, though it diverts that growth from its natural course. • Considered in terms of the enabling legislation, the amendments constitute proper zoning techniques, exercised for legitimate zoning purposes.” at 4

27. “Planning Board has the right to refuse approval of subdivision plats absent improvements specified …, and the fact that it is the Town and not the subdividing owner who is required to provide improvements does not transform the scheme into an absolute prohibition.

28. “Denial of subdivision plat approval invariably amounts to a prohibition against subdivision, albeit a conditional one. Whether it is the municipality or the developer who provides the improvements, the objective is the same; and, in either case, subdivision rights are conditioned, not denied.”

29. “The timing devices presently at issue have their purpose in preventing premature subdivision absent essential municipal services. . .. • Unlike proscribed exclusionary tactics, they do not freeze population at present levels, but seek to maximize growth and the efficient utilization of land. • Assuming that the restrictions here will remain in force for the life of the program, up to 18 years in certain areas, they do not amount to a confiscation.”

30. “In the interim, the landowner is not deprived of either the best use of his land or other appropriate uses, still permitted in the various residential districts, including the construction of a single family residence.”

31. In Ramapo . . . . • If points equal 15, permits are issued • If points are less than 15 . . . • Town will provide needed facility, just wait • Developer can provide deficient facilities • Develop under threshold • Note the three options!

32. Rate of Growth ControlROGO • Petaluma, California And The Right to Travel

33. 40 miles

35. Petaluma • Average House Hold Income $59,197 • Average Home Price • East Petaluma $333,000 • West Petaluma $397,470 • Source: Petaluma Chamber of Commerce

36. Petaluma Cont. . . Housing PetalumaUS • Owner occupied 70.1% 66.2% • Single Family-Detached Unit 72.6% 60.3% • Single Family–Attached Unit 8.1% 5.6% • Multi-Family (20 units or more) 1.7% 8.6% • Mobile Homes 4.5% 7.6% • Median Value $289,500 119,600

37. Petaluma Cont. . . Population PetalumaUS • Total 54,548 • White 47,874 • Percent 87.8% 77.1% • “Black” or African American 936 • Percent 1.7% 12.9% • Hispanic or “Latino” 7,985 • Percent 14.6% 12.5%

38. Run Away Growth!

39. What The Community Saw

40. Actual & Projected PopulationPetaluma 1960 - 2000

41. What The Community Saw Going From This . . .

42. To This

43. The Petaluma Plan • Limited New Home Construction To 500 Per Year, And Developers Must Receive An Allocation of Those Available Units. • Imposed A Greenbelt to Limit Urban Sprawl • Rezoned Property To Maintain “Single Family” Character of Community.

44.  Go To Court Consistent With Zoning?   Have Growth Allocation?     Yes No  Apply for Allocation  Issue “Special” Permit  Develop Property 

45. Construction Industry v. Petaluma, 375 F. Supp. 574, 588 • The federal district court ruled that certain aspects of the Plan unconstitutionally denied the right to travel in so far as they tended “to limit the natural population of the area.” • District court’s decision was appealed to the Ninth Circuit.

46. The Right To Travel • Edwards v. California, 62 S.Ct. 164 (1941). Government may not impinge on the Right to Travel, to move about the country freely. California excluded (stopped at the border) “Okies.” See Steinbeck, Grapes of Wrath. Court held that California could not impinge upon citizens’ right to travel freely, including into California.

47. Today they are agricultural inspection stations But not then!

48. Construction Industry v. Petaluma, 522 F.2d 897 • “Alarmed by the accelerated rate of growth . . ., the demand for even more housing, and the sprawl of the City eastward, the City adopted a temporary freeze on development . . .. The construction and zoning change moratorium was intended to give the City Council and the City planners an opportunity to study the housing and zoning situation and to develop short and long range plans.”

49. “The reasonableness, not the wisdom, of the Petaluma Plan is at issue in this suit.” • “We conclude therefore that . . .the concept of the public welfare is sufficiently broad to uphold Petaluma's desire to preserve its small town character, its open spaces and low density of population, and to grow at an orderly and deliberate pace.”

50. Right to Travel? • Not decided due to lack of standing. None of the plaintiffs could maintain that their “right to travel” was impinged upon, only some unknown third parties. • Issue remains – A reduction in growth will exclude some from the community. Is this a violation of their Right to Travel?