Growth Management

1
Growth Management

• The Timing, Phasing, Scheduling and Management of
  Growth

2
The Developers Position
3
The Citys Position
4
Definition

• A combination of plans, programs, policies, and
  regulations designed to shape the
• Timing
• Location
• Phasing
• Direction
• Compaction
• Of Growth and Development

5
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

6
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

STATE OF NEW YORK
Rockland Township
NYC
STATE OF NEW JERSEY
7
Some Background

• Ramapos 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

8
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

9
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

10
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

11
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

12
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?

13
The Decision

• The purpose of the ordinance is to promote
  timed growth to assure continuous development
  within the towns 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

14
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

15
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

16
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

17
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
18
The Courts 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

19
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

20
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.

21
Simi Valley Fast Facts

• Incorporated in 1969
• Current population 116,000
• Location 45 minutes northwest of L.A.

22
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.

23
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.
• Griffin was required to construct 2,840,481
  worth of infrastructure
• Griffins 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

24
Griffin Homes is Displeased
25
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

26
Court Action - cont

• Griffin argues that the city is ignoring its
  o      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

27
Why The 3 Rule?

• Stony Brook Development v Town of Fremont
• 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 a
  subdivision in a calendar year."

28
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

29
Background

• Stony Brook owns a tract of land that it gas
  divided into a project of 52 homes
• After the management plan is passed, Stony Brook
  applies for 4 permits but is only issued three

30
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.

31
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."

32
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.

33
3 Is Invalid

• The court invalidates the growth management plan
  insofar as it is based on the invalid average
  growth rate
• The court then turns to another question raised
  by the developers that were impacted by the
  ordinance because they had active projects at the
  time.

34
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

35
The Village of Hudson
Current growth rate is 3.5 per year
36
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

37
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

38
Schnecks 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

39
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

40
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.

41
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.