Growth ManagementGrowth Management

The Timing, Phasing, Scheduling and The Timing, Phasing, Scheduling and Management of GrowthManagement of Growth

The Developer’s PositionThe Developer’s Position

The City’s PositionThe City’s Position

DefinitionDefinition

• A combination of plans, programs, policies, A combination of plans, programs, policies, and regulations designed to shape the:and regulations designed to shape the:– TimingTiming– LocationLocation– PhasingPhasing– DirectionDirection– CompactionCompaction

Of Growth and DevelopmentOf Growth and Development

Some TechniquesSome Techniques

• The most popular methods of growth The most popular methods of growth management are:management are:– Permit reduction and rationingPermit reduction and rationing– Scheduling of public infrastructureScheduling of public infrastructure– Incentives and bonusesIncentives and bonuses– MoratoriaMoratoria– Urban Boundary LinesUrban Boundary Lines– Scheduling and provision of public and private Scheduling and provision of public and private

transportation facilitiestransportation facilities

Ruth Golden v Town of Ruth Golden v Town of Ramapo New YorkRamapo New York

• This case was appealed to the N.Y. Supreme This case was appealed to the N.Y. Supreme Court because of amendments made to the Court because of amendments made to the Ramapo Zoning Ordinance in 1969Ramapo Zoning Ordinance in 1969

Rockland Township

STATE OF NEW JERSEY

STATE OF NEW YORK NYC

Some BackgroundSome Background

• Ramapo’s population increased 286% from Ramapo’s population increased 286% from 1940 – 19701940 – 1970

• At an annual average of 1,000 residential At an annual average of 1,000 residential permits per year, the township increased permits per year, the township increased from 23,000 to 58,000 during the 1960sfrom 23,000 to 58,000 during the 1960s

• At the then current growth rate, Ramapo was At the then current growth rate, Ramapo was expected to increase to 120,000 by 1985expected to increase to 120,000 by 1985

The Management PlanThe Management Plan

• The plan called for Ramapo to extend The plan called for Ramapo to extend municipal services over an 18 year period municipal services over an 18 year period based on three 6 year capital improvement based on three 6 year capital improvement plansplans

• Subdivisions located in the capital Subdivisions located in the capital development area would all have to apply for development area would all have to apply for a special development permita special development permit

• To receive a permit, each development must To receive a permit, each development must accumulated 15 points before it is approvedaccumulated 15 points before it is approved

The Point SystemThe Point System

• Development points were given for the Development points were given for the following:following:– Public sanitary sewers or approved alternativesPublic sanitary sewers or approved alternatives– Drainage facilitiesDrainage facilities– Parks and recreation facilities – including schoolsParks and recreation facilities – including schools– Collector and main secondary roadsCollector and main secondary roads– Firehouses and police facilitiesFirehouses and police facilities

ImplementationImplementation

• The developer can advance the date of The developer can advance the date of construction by agreeing to provide those construction by agreeing to provide those improvements that would total 15 pointsimprovements that would total 15 points

• The overall strategy is to bring about a The overall strategy is to bring about a scheme of orderly growth that recognizes the scheme of orderly growth that recognizes the importance of “concurrency” in land use importance of “concurrency” in land use planningplanning

The ControversyThe Controversy

• Ruth Golden and the Construction Industry of Ruth Golden and the Construction Industry of Rockland County bring suitRockland County bring suit

• The contention is that the controls were The contention is that the controls were enacted solely to control the level of enacted solely to control the level of population growth and not orderly growthpopulation growth and not orderly growth

• In other words, Ramapo feels that it has too In other words, Ramapo feels that it has too many people and seeks to limit the future many people and seeks to limit the future population – this is beyond the power of local population – this is beyond the power of local government and the enabling legislationgovernment and the enabling legislation

Preliminary Legal AnalysisPreliminary Legal Analysis

• The Court says that it will not tolerate, under The Court says that it will not tolerate, under any guise, a plan that is designed to exclude any guise, a plan that is designed to exclude people or limit the population of an areapeople or limit the population of an area

• So, in this a scheme to limit the population so So, in this a scheme to limit the population so that a government can avoid its duties to that a government can avoid its duties to accommodate growth, oraccommodate growth, or

• Is this a carefully crafted management plan to Is this a carefully crafted management plan to meet the needs of the future and balance a meet the needs of the future and balance a cohesive community?cohesive community?

The DecisionThe Decision

• The purpose of the ordinance is to promote “timed” The purpose of the ordinance is to promote “timed” growth to assure continuous development within the growth to assure continuous development within the town’s capabilitiestown’s capabilities

• The town does not seek to freeze population at The town does not seek to freeze population at present levelspresent levels

• It seeks to bring about the efficient use of landIt seeks to bring about the efficient use of land• In short, the town is not trying to be left alone and In short, the town is not trying to be left alone and

only be allowed to prevent the type of tragic sprawl only be allowed to prevent the type of tragic sprawl and development problems so prevalent in and development problems so prevalent in essentially rural, high growth areasessentially rural, high growth areas

ConclusionConclusion

• We only require that communities confront We only require that communities confront the challenge of population growth with open the challenge of population growth with open doors. Where in grappling with that problem, doors. Where in grappling with that problem, the community undertakes, by imposing the community undertakes, by imposing temporary restrictions upon development, to temporary restrictions upon development, to provide required municipal services in a provide required municipal services in a rational mannerrational manner

How Not To Do Growth How Not To Do Growth ManagementManagement

• The case of Belle Harbor Realty v KerrThe case of Belle Harbor Realty v Kerr– In 1972 Belle Harbor Realty applies for a permit to In 1972 Belle Harbor Realty applies for a permit to

construct a 4 story retirement center and nursing construct a 4 story retirement center and nursing homehome

– A group of residents tried to block the issuance of A group of residents tried to block the issuance of the permit on the basis that existing sewer the permit on the basis that existing sewer facilities were inadequate to serve this sitefacilities were inadequate to serve this site

– The trial court found for the City and dismissed The trial court found for the City and dismissed the suitthe suit

After the PermitAfter the Permit

• Because of continual complaints over sewer, Because of continual complaints over sewer, the City investigates and finds that sewer the City investigates and finds that sewer were installed in 1889 and were grossly were installed in 1889 and were grossly inadequate to serve the existing development inadequate to serve the existing development let alone the new care homelet alone the new care home

• The City revokes the permitThe City revokes the permit• Notifies everyone that the City is considering Notifies everyone that the City is considering

a new sewer systema new sewer system

Belle Harbor Realty is RippedBelle 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 AnalysisThe Court’s Analysis

• The trial court held that it was impermissible The trial court held that it was impermissible for the city to punish a single landowner for the city to punish a single landowner because of its own failure to construct because of its own failure to construct adequate sewerage facilities.adequate sewerage facilities.

• The Appeals Court reversed saying that an The Appeals Court reversed saying that an overflowing, antiquated, polluting sewer overflowing, antiquated, polluting sewer system is a rational basis for delaying system is a rational basis for delaying developmentdevelopment

• HOWEVERHOWEVER

In The Final AnalysisIn The Final Analysis

• To justify interference with the beneficial To justify interference with the beneficial enjoyment of property the municipality must enjoyment of property the municipality must establish that it has acted in response to a establish that it has acted in response to a dire necessity, that its action is reasonably dire necessity, that its action is reasonably calculated to alleviate or prevent the crisis calculated to alleviate or prevent the crisis condition, and that it is presently taking steps condition, and that it is presently taking steps to rectify the problem.to rectify the problem.

• In other words, it is a TEMPORARY action In other words, it is a TEMPORARY action that demands immediate attentionthat demands immediate attention

Griffin Homes v City of Simi Griffin Homes v City of Simi ValleyValley

• Griffin Homes, Inc. owns two large parcels of land Griffin Homes, Inc. owns two large parcels of land located in the City of Simi Valley. located in the City of Simi Valley.

• Griffin Homes seeks to build 187 dwelling uinits on a Griffin Homes seeks to build 187 dwelling uinits on a parcel known as Greenbriar and 217 homes on a parcel known as Greenbriar and 217 homes on a parcel known as Hopetown. parcel known as Hopetown.

• Griffin expects to complete its development in 1992.Griffin expects to complete its development in 1992.

Simi Valley – Fast FactsSimi Valley – Fast Facts

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

The MechanicsThe Mechanics

• In 1986 the City enacted a "growth control" ordinance In 1986 the City enacted a "growth control" ordinance which limits the number of building permits that City which limits the number of building permits that City may issue during a given yearmay issue during a given year

• Construction projects are to be evaluated by a point Construction projects are to be evaluated by a point system and then placed in a queue based upon their system and then placed in a queue based upon their ranking under the point systemranking under the point system

• Recipients shall be maintained in order until the Recipients shall be maintained in order until the project has received all of its grants to complete project has received all of its grants to complete buildout. buildout.

Plans Go AstrayPlans Go Astray

• Griffin Homes, applied for a permit to build 63 units in Griffin Homes, applied for a permit to build 63 units in phase December 1987phase December 1987

• Griffin alleges that it was ranked number one in the Griffin alleges that it was ranked number one in the queue by the city.queue by the city.

o Griffin was required to construct $2,840,481 worth of Griffin was required to construct $2,840,481 worth of infrastructureinfrastructure

• Griffin’s plans went astray: following the award of the Griffin’s plans went astray: following the award of the permit to build 63 unitspermit to build 63 units

• Because of the delay the City denied its application Because of the delay the City denied its application to complete Greenbrier and removed Griffin from the to complete Greenbrier and removed Griffin from the queuequeue

Griffin Homes is DispleasedGriffin Homes is Displeased

Court ActionCourt Action

• Griffin alleges a taking of property rightsGriffin alleges a taking of property rights• Also files a writ of mandamus – “Do your job Also files a writ of mandamus – “Do your job

and give us the permits”and give us the permits”• Griffin is frustrated when it is found that their Griffin is frustrated when it is found that their

claim is not ripe for adjudicationclaim is not ripe for adjudication• Griffins argues that the regulation is arbitrary Griffins argues that the regulation is arbitrary

in that does not substantially advance any in that does not substantially advance any legitimate states interest – therefore ripeness legitimate states interest – therefore ripeness is not an issueis not an issue

Court Action - contCourt Action - cont

• Griffin argues that the city is ignoring its Griffin argues that the city is ignoring its oo            State State argues there has long been concern over the harmful argues there has long been concern over the harmful consequence visited upon urban centers as result of consequence visited upon urban centers as result of rapid and uncontrollable growth.rapid and uncontrollable growth.

          The court notes that in CA. one sees not only the The court notes that in CA. one sees not only the consequences of unplanned, careless or deliberately consequences of unplanned, careless or deliberately destructive past activity; one also gets the feeling that destructive past activity; one also gets the feeling that the worst is yet to come. the worst is yet to come.

• Laws such the Simi ordinance, that serve to protect a Laws such the Simi ordinance, that serve to protect a community from the ill effects of haphazard community from the ill effects of haphazard urbanization, and which promote the orderly urbanization, and which promote the orderly development, are a proper exercise of the police powerdevelopment, are a proper exercise of the police power

Why The 3% Rule?Why The 3% Rule?

• Stony Brook Development v Town of FremontStony Brook Development v Town of Fremont• Faced with high growth and massive development Faced with high growth and massive development

costs the City of Fremont prepares a management costs the City of Fremont prepares a management planplan

• The number of building permits to be issued for new The number of building permits to be issued for new dwellings shall be limited annually to 3% of the dwellings shall be limited annually to 3% of the number of dwellings in the town at the start of each number of dwellings in the town at the start of each calendar year.calendar year.

• These permits shall be issued based on date of These permits shall be issued based on date of application, except that not more than three (3) application, except that not more than three (3) permits may be issued per developer or within a permits may be issued per developer or within a subdivision in a calendar year."subdivision in a calendar year."

Mechanics - contMechanics - cont

• Once a developer has accumulated enough building Once a developer has accumulated enough building permits to build one phase (approved portion) of a permits to build one phase (approved portion) of a project, they must begin construction on that phase project, they must begin construction on that phase before he can pull permits for the next phase.before he can pull permits for the next phase.

• Such a project shall not lose its place in the queueSuch a project shall not lose its place in the queue

BackgroundBackground

• Stony Brook owns a tract of land that it gas Stony Brook owns a tract of land that it gas divided into a project of 52 homes divided into a project of 52 homes

• After the management plan is passed, Stony After the management plan is passed, Stony Brook applies for 4 permits but is only issued Brook applies for 4 permits but is only issued threethree

The 3% RuleThe 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 ArgumentThe 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 SaysThe 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 Invalid3% Is Invalid

• The court invalidates the growth The court invalidates the growth management plan insofar as it is based on management plan insofar as it is based on the invalid average growth ratethe invalid average growth rate

• The court then turns to another question The court then turns to another question raised by the developers that were impacted raised by the developers that were impacted by the ordinance because they had active by the ordinance because they had active projects at the time.projects at the time.

Permit RationingPermit Rationing

• Schneck v Village of Hudson, OhioSchneck v Village of Hudson, Ohio• Facts:Facts:

– The Village of Hudson is created by a merger of The Village of Hudson is created by a merger of the former city and several townshipsthe former city and several townships

– The population is tripledThe population is tripled– The Village is best characterized as an “upscale The Village is best characterized as an “upscale

suburban community” with a lot of houses and few suburban community” with a lot of houses and few businesses or industrybusinesses or industry

– Average cost of housing is $320,000 in 1996Average cost of housing is $320,000 in 1996

The Village of HudsonThe Village of Hudson

Current growth rate is 3.5% per year

BackgroundBackground

• Following a comprehensive planning study Hudson Following a comprehensive planning study Hudson adopts a long range strategy or reaching a adopts a long range strategy or reaching a population level of no more that about 30,000population level of no more that about 30,000

• The conclusion reached is that the Villages’ present The conclusion reached is that the Villages’ present growth rate has strained their ability to provide the growth rate has strained their ability to provide the essential infrastructure necessary for developmentessential infrastructure necessary for development

• Permits would be rationed or slowed to reflect this 25 Permits would be rationed or slowed to reflect this 25 year growth targetyear growth target

• Developers would have to achieve a Ramapo style Developers would have to achieve a Ramapo style point system to achieve a development proposalpoint system to achieve a development proposal

Inner WorkingsInner Workings

• Developers that achieve the necessary points Developers that achieve the necessary points would go into a lottery or drawing pool would go into a lottery or drawing pool (random) each year to be selected for (random) each year to be selected for approvalapproval

• About 20% of the yearly permits will be About 20% of the yearly permits will be withheld and given for “affordable housing,” withheld and given for “affordable housing,” elderly housing, and on those lots with have elderly housing, and on those lots with have direct access to facilitiesdirect access to facilities

Schneck’s DilemmaSchneck’s Dilemma

• Schneck is the developer of a project know Schneck is the developer of a project know as Westbridge Phases II and IV.as Westbridge Phases II and IV.

• Schneck says that he has borrowed a great Schneck says that he has borrowed a great deal of money to put in streets and other deal of money to put in streets and other infrastructure infrastructure

• Proceeds from lot and housing sales are Proceeds from lot and housing sales are used to right-down the bank loanused to right-down the bank loan

DiscussionDiscussion

• The Court says: “OK, we can understand The Court says: “OK, we can understand why the city needs this program but we fail to why the city needs this program but we fail to see why it should be applied to those some see why it should be applied to those some 500 lots in the city that are already final 500 lots in the city that are already final platted, where infrastructure is installed, and platted, where infrastructure is installed, and ready to go?ready to go?

• So, why do you deny the lots that are ready So, why do you deny the lots that are ready to go – there are no infrastructure costs and to go – there are no infrastructure costs and the whole plan is based on the fact that the the whole plan is based on the fact that the city will have to supply infrastructurecity will have to supply infrastructure

InjuryInjury

• Schenck establishes evidence of irreparable injury. Schenck establishes evidence of irreparable injury. He states that in an affidavit that in May 1995 he He states that in an affidavit that in May 1995 he executed a $620,000 development loan to be repaid executed a $620,000 development loan to be repaid in three years, the anticipated time frame expected to in three years, the anticipated time frame expected to sell the 27 lots in the two phases of the Westbridge sell the 27 lots in the two phases of the Westbridge Development which he owns. He stated that the Development which he owns. He stated that the ordinance impairs his ability to sell lots to builders in ordinance impairs his ability to sell lots to builders in the subdivision, thus effectively denying him the the subdivision, thus effectively denying him the value of his investment.value of his investment.

ConclusionConclusion

• The court notes that the overall plan is a good one The court notes that the overall plan is a good one but it is flawed in the way that it deals with “lots that but it is flawed in the way that it deals with “lots that are already approved.”are already approved.”

• The City shall be enjoined from enforcing its Zoning The City shall be enjoined from enforcing its Zoning Code related to: a. Any lots in the City which have Code related to: a. Any lots in the City which have obtained preliminary or final plat approval and are obtained preliminary or final plat approval and are currently improved with 1) water service 2) sewer, currently improved with 1) water service 2) sewer, and 3) roads; and b. Any other lots in the City which, and 3) roads; and b. Any other lots in the City which, as of the date of this order, have obtained preliminary as of the date of this order, have obtained preliminary or final plat approval and are not currently improved or final plat approval and are not currently improved with the infrastructure above; but only when those with the infrastructure above; but only when those other lots are fully improved with such infrastructure.other lots are fully improved with such infrastructure.