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"‘II’L t» 9’11?" o .11 ‘I'I l'l :Avfl.‘ - '1' 5]" ,1n.‘nv, “1‘: 1' ‘14: 1'. I111"; 1 a; \’._ 1 . "ILIV‘ I '1‘ III‘P nu. ‘. Int.) 11% ‘I'u‘z- LIBITARY Whig}?! 513313 University l\\\\\\\\\\\\\\\\l\\\\\\\\\\\\lllllllllllllll 3 1293 10329 0858 This is to certify that the thesis entitled The Control of Urban Growth: Case Studies and Constitutional Issues presented by Brenda Lott Valla has been accepted towards fulfillment of the requirements for I Master 3 degree in Urban Planning mmfl Major professor April 14, 1978 I)ate 0-7639 THE CONTROL OF URBAN GROWTH: CASE STUDIES AND CONSTITUTIONAL ISSUES . BY Brenda Lott Valla A THESIS Submitted to Michigan State University in partial fulfillment of the requirements for the degree of MASTER IN URBAN PLANNING School of Urban Planning and Landscape Architecture College of Social Science 1977 ABSTRACT THE CONTROL OF URBAN GROWTH: CASE STUDIES AND CONSTITUTIONAL ISSUES BY BRENDA LOTT VALLA The objectives of this thesis are l) to describe the change in public Opinion in the U. S. from the encourage- ment of urban expansion to support for the first stages of a nogrowth movement, 2) to outline the traditional bounds of control over urban development, 3) to describe an innovative form of urban growth management known as development timing or sequential growth, and 4) to survey the major constitution— al challenges to development timing, i.e., violations of due process, equal protection and the right to travel. As a vehicle for accomplishing objectives 3 and 4, the growth management experiments of Ramapo, New York and Petaluma, California and the litigation resulting from them will be examined. This thesis illustrates the changing role of state and federal courts in land use litigation from one of deference to local mandates to one of advocating regionally balanced planning. It also recommends ways to deve10p plans that can better withstand legal assault. 'Ib Stephen, who persevered, and Ariel, who was patient 11 'I‘ABIEWCIN'JENTS Introduction .............................................. Chapter I. 'IbwardaNewOoncensus onUrbanGrowth ........ Chapter II. 'Ihe Nature of Zoning ..... . ................... Chapter III. Ramapo, New York: Controlling Growth Through Development Timing ........ . ............ Chapter IV. Legal and Constitutional Issues of the Ranapo Case... ............................. ............ Chapter V. Petaluma , California: Controlling Growth Through Residential Development Timing Quotas ..... . ....... Chapter VI. legal and Constitutional Issues of the Petaluna Case. ............ . ........................ Chapter VII. The lessons of Ranapo and Petalurra.. ........ AppendixA. ProposedArrerflnentsto'IbwnofRamapo Building Zone Amended Ordinance of 1969 .......... . ........ Appendix B. Criteria Used for Rating Development Applications Under the Petaluma Plan ...................... Bibliography ........................... . ......... 111 l 7 18 30 47 64 76 89 102 114 LIST OF TABLES l. Managed Growth Activity From 1969 to June, 1974 ................. “’4' iv LIST OF FIGURES l. 'Ibwn of Ramapo, Rockland County, New York ....................... 31 Introduction Post World War II urban development in the United States is responsible for the canton usage of many new terms: suburban sprawl, urban blight, leapfrogging, strip development and megalopolis , to nane a few. These terms reflect an emerging concensus that rapid, generally unplanned growth produces adverse consequences on the urban landscape despite any benefits it my bring. Adverse consequences, however, are not limited to the physical landscape. Local governments also bear equally formidable, if nore subtle, negative effects in the tide of rapid growth. Imesa effects include higher tax rates, a shrinking tax base in the inner city, overburdened public facilities and an inability to finance expanded facilities and services. 1 In response to the growing awareness of the consequences of rapid growth, a public novement began in the late 1960's to slow down and control the rate of urban development. The number of communities enforcing growth constraints in 1973 was reported by the Urban Land In— stitute to be 39.2 In 1974 the International City Management Association listed 258, or 23 percent of all cities surveyed as growth control 1. Chapter 1 of this thesis traces the evolution of attitudes toward urban developnent in the 0.5. from the encouragement of development to support for the first stages of a nongrcwth movement. 2. Earl Finkler, William J. 'Ibner and Frank J. Popper, Urban Nongrowth: City Planning for People (New York: Praeger Publisher, 1976) , pp. 2-3. 3 By 1975, a research project of the National Science cammmities. Foundation was considering over 500 communities for the title.4 The growing sentiment to constrain urban development in non- traditional ways has come to be known inappropriately as the "nongrowth" movement or "nongrcwth". What nogrowth supporters are objecting to «/ is not growth itself, but unplanned change which lowers the quality ‘/ of life. The nogrowth movement is therefore not a plea for the cessa- tion of development, but a search for more effective methods of urban growth management. Under the nogrowth or growth control concept urban development is allowed, but at a slowed or timed rate and in controlled proportions according to types of land uses. Since this kind of growth management extends beyond the scope of zoning as it is traditionally used, there is no well-established planning technique available to carry out its objectives . 5 Growth control therefore remains a concept in search of a form. As Earl Finkler and David Peterson noted in 1974 the response to the nogrowth movement frcm established professions such as planning, 6 law, economics and sociology has been disappointing so far. Professionals are 3. Earl Finkler, William J. Toner and Frank J. Popper, Urban Nongrowth: M I p. 2-30 4. Ibid. 5. Norman Williams, Jr. American Planning Law: land Use and the Police Power, Volume III. (Chicago, 111.: Callaghan and Company, 1975), p. 347. 6. Earl Finkler and David L. Peterson, Nongrowth Flaming Strategies - The Developing Power of 'Ibwns, Cities, and Regions (New York: Praeger Publishers, 1974) , p. viii. It should be noted that since 1974 the Ameri- can Iaw Institute has produced a new "Model land Development Code" to replace standard state zoning enabling legislation. The new code pro- vides for nongrcwth management techniques. taking a conservative view of nontraditional growth control , generally avoiding public commitment to its aims until the movement either es- tablishes itself as the wave of the future or passes into oblivion. While professionals hesitate in the wings, local government officials are thrust on center stage. Faced with fiscal chaos and public discontent with rapid change , municipalities are developing their own growth control policies and implementation techniques . As one result, a variety of growth managment experiments are available for review. As a further result a multiplicity of legal and philosophical viewpoints exist as to the allowable bounds of growth management. Neither the courts nor public opinion has yet established how much control may be exercised for the public good over private developrent decisions . This thesis attempts to shed some light on the legal and philosophical issues surrounding the nongrcwth or growth control move- ment. As a vehicle, one technique of management - development timing /“ or sequential growth, as it is often called - will be examined as it / was applied in the two carmunities of Ramapo, New York and Petaluma, California. The experiments of these two communities were selected for review because both were highly innovative growth managerent schemes which generated considerable public debate and professional commentary. Also, both techniques were challenged in the courts on slightly different grounds and upheld as constitutionally valid exercises of the police power. Together Ramapo and Petaluma provide a forum for reviewing some of the legal and public viewpoints on the bounds of growth control. In reviewing the Ramapo and Petaluma techniques, the litiga- tion which upheld the constitutionality of each system is the main focus. This was done for several reasons. First, in reviewing the litigation the central challenges to development timing or growth control techniques become apparent. These challenges can be categorized " as violations of the constitutional rights of 1) due process, 2) equal / protection and 3) the right to travel. Under these headings the rights '/ ofanindividualtotheuseof his landor landwhichhecouldacquire and the degree of control that a government may exercise over those rights for the public good are discussed. The second reason for focusing on litigation in this thesis is to illustrate the different emphases which are likely in state and federal court systems respectively. The Ramapo case was heard in the New York State court system while the Petaluma case was heard in the federal courts. In the Ramapo case the Court of Appeals decision fo- / cused primarily on whether or not development timing was a proper zoning / function legitimately granted to the municipality by the State. In the “ Petaluma case the rights of individuals to use their land or to enter / into and abide in Petaluma were central. The New York court was thus ’7 concerned primarily with interpreting the scope of state delegated powers while the federal courts in California were concerned with the effects of the Petaluma plan individual and property rights . Although not illustrated by the litigation presented in this thesis, important differences also exist among the state courts in de- ciding similar cases. For example, in lomarch v. Mayor of Englewood the New Jersey state courts invalidated a one year "freeze" on develop- ment as an unconstitutional " temporary taking" . 7 The Ramapo plan, on the other hand, prevented the development of some town lands for 18 years but was not held to be taking since development restrictions were not considered permanent. Also, schemes which interfere with the regional availability of housing are usually declared invalid in New Jersey, as was the case in the landmark Mount laurel decision.8 Other states, particularly New York and California, often allow plans to stand if the local welfare is enhanced, even if the regional welfare is not. A third reason for focusing on litigation in this thesis is to illustrate the persuasiveness of the arguments for and against de- veloprent timing. Both the Ramapo and Petallma techniques were over- turned in the lower courts but upheld on appeal to higher courts. Also, neither the Ramapo nor Petaluma case was accepted for rehearing on final appeal to the United States Supreme Court. In one author's opinion this illustrates the basic confusion and differences of opinion that exist in this country over development timing and growth control techniques. By 7. Jerome G. Rose, "The Courts and the Balanced Cormmity: Recent Trends in New Jersey Zoning law", Journal of the AIP, Volume 39, No. 4 (July, 1973). p. 273. 8. Ibid., p. 272. Also see Randal W. Scott, "Court Finds Municipalities Must Act in Context of Regional General Welfare, " AIP Newsletter, Volume 10, No. 6 (June, 1975), pp. 11-12; Norman Williams, Jr. "Recent Developrents in Exclusionary Zoning - The Nbunt laurel Case", in Addendum to American Planning Law, Voltme III, op. cit.; and Barry Israel, "Some Emerging Techniques in Growth Control", A_I_P Newsletter, Volume 9, No. 7 (July 1974), pp. 7-9. refusing to hear the cases, the Supreme Court was implying that the issues have not yet been clearly defined through public debate and ex- perimentation. A premature Supreme Court decision would stifle the forum needed to clarify the growth control controversy. It is hoped that the information contained in this thesis will allow planners to respond more affirmatively in the growth control debate. It should provide a framework for determining what challenges will arise to growth control measures and how the courts are likely to reply to them. With this information, planners can better design growth nanagerent systems and influence public opinion regarding their use. The topics examined in this thesis and the order of their presentation will be as follows: Chapter (he describes the changes in public opinion from the encouragement of urban development to sup- port for the first stages of a nogrowth movement. Chapter TWo out- lines the nature of zoning to illustrate the traditional bounds of control over urban development. In doing so, the need for new control devices plus the standards against which these devices will be measured becore apparent. Clapter Three describes the developlent timing technique used in Ramapo, New York. The legal and constitutional issues of the Ramapo case are discussed in Chapter Four. Chapter Five describes Petalura, California's development quota system for timing urban growth while the legal and constitutional issues of that system are discussed in Chapter Six. Chapter Seven suggests the lessons to he leaned by planners and the public from the experiences of Ramapo and Petaluma. Chapter I Toward a New Consensus on Urban Growth In the 1850's when Horace Greely used the expression "Go west, young man and grow up with the country", he was referring to the settlerent of the nearly uninhabited western sections of what is now the continental United States . This philosophy - that more land is available just beyond existing development - continued to dominate the thinking of most people in the U.S. even until recent times. Va- cant land was thought to be an almost unlimited commodity which could always be assembled for development with relative ease. If there was none available in one particular spot, there was plenty more "out west " or beyond the central city or beyond the suburbs . This "prairie psychology" as one British observer called it,1 prevailed through the settling of the country, through the Great Depres- sion, through two World Wars and through the post World War II construc- tion boom. Writing in 1960, John Delafons still found it "very rare in America to encounter any antipathy to new development. "2 Growth, in the form of new construction and land consumption , was actively sought by financial and political leaders in order to increase the tax base of a community, and to bring new jobs, income and opportunities to its citi- zens. The effects, it was believed, would be lowered memployment, 1. John Delafons, Land-Use Controls in the United States (Cambridge, Massachussetts: The MIT Press, 19697, p. 4. 2. Ibid., p. 114. 8 increased average family income and added revenues to the city treasury.3 The search for deve10pment which would increase the local tax base put cities in "a competitive stance, forever chasing any and all ratables" and absorbing almost all development that was offered.4 While political and financial leaders were competing to bring development to their cities, the general public provided eager support. Residents were proud to belong to a rapidly expanding community and considered a move to the new suburbs a sign of affluence and upward mobility. These attitudes were reflected in the "pro-growth" - which was synonorous with progress - leaders who were elected. " (T)he very mention of any form of nongrcwth" , in fact, "was enough to ensure poli— tical defeat"5 at the ballot box until recently. National infatuation with the growth ethic, born of the con- fidence that the supply of land is virtually unlimdtedfsbegan to waver and then erode in the late 1960's as the consequences of rapid and gen- erally unplanned development became apparent. A pattern was being established: seeking large tracts of relatively inexpensive land, de- velopers chose to locate rows of housing, all the same age and often monotonously similar, farther and farther away from central cities. 3. Earl Finkler, WilliantJ} Toner and Frank J. Popper, Urban angrowth: City Planning for People (New York: Praeger Publishers, 1976), p. 214. 4. Earl Finkler and David L. Peterson, NOngrowth Planning Strategies - The Developing Power of Towns, Cities, and Regions (New York: Praeger Publishers, 1974), pp. xix—xx. 5. Ibid., p. 16. 6. Delafons, op. cit., p. 4. Public facilities were extended to these areas at great expense, thereby justifying the location of even more suburbs farther out. It then be- came necessary to raise taxes in order to finance the facilities to catch up with development. With increased populations , school enroll- ment in rural and newly suburban areas quidkly exceeded capacity, making double sessions frequent occurences. Pursuing the labor force , and drawn by the clean air, lowered crime rate and green open spaces avail- able in the suburbs, businesses and industries followed the developers in the exodus from the central cities. In the central cities, mean- while, the tax base was eroding, unemployment and crime rates were rising and the poor and minorities who could not afford suburban housing were left in deteriorating units. This pattern, created by what the New York Court of Appeals called "the sweet will" of the developer,7 means that "land relatively close to developed centers often remains idle or unoccupied, while "land further from the center is being freshly developed. "8 Resource waste comes in the form of vacant lots and empty buildings near the urban center. Private transportation and time costs consume additional re- sources as travellers are obliged to cover greater distances in their daily activities. Perhaps the most unexpected consequences of rapid urban and suburban growth between Wbrld war II and the late '60's involved the local economy, particularly the tax base. As Richard lamm pointed ont, 7. Charles Haar, "Wanted: Two Federal levers for Urban land Use - land Banks and Urbanks (excerpts) " , in land Use Controls: Present Problems and Future Reform, David Listokin, ed. (Rutgers University: Center for Urban Policy Research, 1974), p. 372. 8. Ibid. 10 "(t)he argument that development ' (increases) the tax base' has echoed through county commissioners meetings, city halls, and state legislatures from time :imrmem'orial."9 Development does, in fact, increase the tax base. But as Lamm further notes, "it often increases the derand against that tax base even faster."10 It was precisely in those areas where economic and population growth were most accelerated that taxes increased dramatically. 11 This reflected the inability of public treasuries to pay for the expanding infrastructure required by growth. Individuals were forced to endure not only higher taxes , but also higher housing costs because of rapid development. "Growth" , it seeted, "did not bring more housing that was less expensive. It brought less housing that was more expensive . "12 The economic burdens of growth fell upon the lower and middle incore taxpayers of the community - those most adversely affected by increases in the cost of' living. The economic instability accompanying new growth affected more than the tax rate and the cost of housing. While new growth did 9. Richard D. lamm, "Local Growth: Focus of a Changing American Value", in Managerent and Control of Growth: Issues-Techniques-Problems- Trends, Volume III, Randall W. Scott, ed. (Washington, D.C.: The Urban land Institute, 1975), P. 212. 10. Ibid. 11. Finkler, gt; a1., Urban Nongrcwth, op. cit., p. 214. 12 . Ibid. 11 add jobs, incore and Opportunities for local residents, it neither low- ered unemployment nor increased average family incore. This was be- cause new growth attracted new residents, all of whom wanted jobs and higher wages. "When the pie was finally divided, too many people had less of it. Incores leveled off or decreased; unemployment increased or stayed, about the same."13 In many areas of rapid growhth, the construction industry ex- perienced "one long track of feast and famine" , as the economist William Toner has noted. 14 Periods of high employment and overbuilding were fol- lowed by layoffs and detands for higher unioi wages. This instability eventually affected the public sector in the form of requests for public support. During layoff periods construction and allied workers required unemployment compensation, welfare, food stamps and so forth. "The economic health of the local public sector (began) to reflect that of its private clientele. "15 In addition to the economic instability brought to areas of rapid growth, a general decline in the standard of living was eventually perceived by the once staunchest supporters of growth-new suburbanites . Finkler summarized their perceptions in the following manner: "Individuals (saw) a supposedly well-planned subdivision go up, endure (d) the mud and dust, and push (ed) their children into overcrowded school buses. Often the planned parks and commmity 13. Finkler, gt a1., Urban Nongrcwth, cp. cit., p. 214. 14. Finkler and Peterson, Nongrowth Planning Strategies, op. cit. , p. xvi. 15. Ibid. 12 centers never (saw) the light of day. Then taxes (went) up and entire tracts of homes start (ed) deteriorating all at oice . They. . . deteriorate (d) even more quickly if some planner forgot the area was in a flood plain, or if the planning commission chose to ignore the fact. The in- habitants of some rather remote subdivision cheer(ed) Wren they (got) their first filling station and drive-in restaurant, but then des- paire (d) when it (was) followed by mile after mile of fast-food, fast—furniture, fast-muffler, strip commercial developments. "15 Despite the disadvantages accruing from rapid growth, it did bring benefits to a group that Finkler has called "the select few" . These included large landowners , real estate and development corpanies, bankers, newspaper publishers, utilities, union chiefs and so forth. "Dollars and power were the incentives for the growth win- ners. More growth meant more dollars and more power. But only for the growth winners. Everyone else was on the long list of growth losers. The costs of growth fell onto ordinary citizens throughout the commmity. "17 Unfortunately, most of the decisions which lead to rapid growth, both in government and industry, are either made or highly influenced by the "growth winners". .Although "growth winners" and "growth losers" are useful analytical categories , individuals rarely perceive their circumstances so simplistically. NOt all kingpins of big industry, big finance, big government and real estate considered themselves growth winners and not all ordinary taxpayers and suburbanites would have admitted to being growth losers. Nevertheless, by the end of the 1960's a con- sensus was being reached on the nature of rapid growth itself. It had core to be unsympathetically referred to as "urban sprawl, " a '\ l6. Finkler and Peterson, Nongrowth Flaming Strategies, op. cit. , p. 151.. l7. Finkler, et a1., Urban Nongrowth, 0p. cit., p. 213. 13 form of blight created in the process of "leapfrogging" from one un- developed tract of relatively cheap land to another".18 John Delafons , in describing the changed attitude toward land use in America between his 1960 and 1969 analyses, colcluded that " (p)erhaps the most significant change that has occurred in America over the past decade has been a growing public awareness of the problems of the urban environment and a growing derand for greater public participation in the planning process. "19 Fred Bosselman and David Callies noted the same phenotenol and attributed the "quiet revo- lutiol in land use controls" almost wholly to it. The single predominant cause of the quiet revolution, they wrote, is a change in the concept of the term "lard". "Basically we are drawing away from the 19th century idea that land's only function is to enable its owner to make money. "20 land V" . . - .‘3/ has becore a "scarce resource" rather than an economic "comodlty". ,9 7/2 I, ' I/ T’ 9.15”” f '0‘ ." - (nil-C". 'é—‘L’w‘v‘I-Z' Once the general public and local governments were openly K0 denouncing the adverse consequences of growth, the voice of another group - the environmentalists - began to be heeded. Although environmentalists and conservationists had long been preaching and lobbying for the 18. Fred P. Bosselman, "Can the Town of Ramapo Pass a Law to Bind the Rights of the Whole World?" , Florida State University Law Review, Volume I (Spring, 1973), 245. ’ 19. Delafons, op. cit., p. 114. 20. 4 Fred Bosselman and David Callies, The Quiet Revolution in land Use Control (Washington, D.C.: Council on Environmental Quality, 1971), pp. 314-315. 11+ preservation of natural resources and control of the destructive ten- dencies of growth, they were seldom acknowledged. In an era of the "pro-growth ethic" they were considered a small and harmless group of eccentric university professors , students , and elderly bird watchers . But by the early 1970's, as Norman Williams observed, it was "strikingly apparent" that environmental considerations were crucial , if not one of the most significant aspects of land use matters.21 As environmentalists and conservationists were gaining public support for their philosophies, an issue ererged which added to their strength - the energy crisis. The pattern of urban sprawl had been based on the assumption that most suburban residents would use the private autorobile for transportaiton . It was further assumed that virtually unlimited low-cost fuel would be available for transportation whenever needed.22 These assumptions were proven invalid by the fuel shortages and energy crises of the late 1960's and early 1970's. As scientists began predicting the end of fossil fuels, Americans became more cautious about wasting energy. It was feared that lifestyles based on a high consumption of resources would not be possible in the future. In additiol to being alarmed by the scarcity of resources , people in the United States began to fear the losses of natural beauty in the landscapes. Environmentalists and conservationists had been warning developers , governments and the public that relatively uncon- trolled growth would eventually destroy the aesthetic amenities of 21. Norman Williams, Jr., American Planning law: Land Use and the Police Power, Volume I (Chicago: Callaghan and Corpany, 1974) , pp. xlviii-xlix. 22. Ibid., p. xlviii. fix-f l 5 “1):! 32%,; nature. Suburbanites found this prophecy to be true and were increas- ingly disenchanted with the "loss of neighborhood and small town char- acter" that nonending development brought to the olce green open spaces of the suburbs.23 This was especially significant since most residents had moved to the suburbs to find these very qualities. To make matters worse , the Sunday drive in search of pleasant natural vistas became longer and longer and less and less fruitful. The total effect of the disenchantment many Americans were feeling with growth was to create a "new mood" for non-growth. The "new mood", Bosselman wrote, involves a changed perceptiol of suburban economics. Instead of believing that growth brings economic benefits, people are beginning to believe that growth only increases taxes.24 Thenongrowthmoverent isnotbasedonanyparticularpoli— tical ideology. At a typical zoning hearing, Bosselman continued, "an elderly dowager who' 3 voted straight Republican since McKinley and her granddaughter from a commune where they live o1 nuts and berries" might both be trying to stOp new development. Arguing against them for developrent will be a bank president and "an afro-coiffed attorney from 23. Randall W. Scott, ed., Management and Cmtrol of Growth: Issues— Techniques—Problems-Trends , Volume I (Washington, D.C.: The Urban land Institute, 1975), pp. 6-7 24. Basselma'fup: . "The Right to Move: The Need to Grow", Planning, the ASPO Magazine, Vollme 39, No. 8 (Septerber, 1973), p. 10. 16 the NAACP." The latter two had just been fighting each other over minority hiring procedures, but are now united in support of new jobs and housing. 25 Since the new mood is not associated with a particular po- litical philosophy, popular support for no-growth issues can cut across party lines, often producing substantial majorities. Whereas opposing new development owe meant almost sure defeat at the polls , "in many communities a planner or politician can now be criticized or defeated if he or she becotes too closely associated with a prodevelopment image."26 This trend has led to a new type of suburban political leader, especially in those commmities actively supporting no-growth. As Bosselman explained, suburban governments have traditionally been dominated by businessmen, especially real estate brokers , who comsidered growth good for business. Recently, however, voters have ousted the incumbents and replaced them with a new type of local official - house- wives , engineers , truck drivers , junior executives . These new represen- tatives are typical suburban homeowners "whose only contact with the community is to live in it, not to make money off it."27 The indicators - political, social and economic - are clear. In the United States the attitude toward urban development has evolved . 25. E‘Bosselm'an-:, "The Right to Move", op. cit., p. 10. 26. Finkler and Peterson, Nongrowth Planning Strategies, op. cit., p. 16. 27. Bosselman, "The Right to Move", op. cit., pp. 10-11. 17 from one of pro-growth into the first stages of a non-growth movement.28 What is being called for is a change from the crime and pollution "that follows in the wake of those newly profane words ' growth' and 'develop— ment ' " .29 Citizens are asking for a better living environment "and they really don't care whether it's built by private enterprise or public agencies. They are telling their elected officials, 'Do sorething about it. ' " 30 What can be done about it? What tools and techniques exist for controlling the adverse effects of rapid urban and suburban growth? The following chapter briefly examines the capacity of the traditional major tool of urban planning - zoning - to respond to the delands of the no-grcwth movement. With this as a basis, the remainder of this thesis analyzes the nontraditional techniques utilized by two commlni- ties, Ramapo, New York and Petaluma, California, to successfully manage growth in areas of rapid development. 28. This term does not mean that growth should not occur. It is, of course, logical to assume that urban growth is inevitable as long as the population continues to expand. "Non—growth" as comonly used refers to a greatly reduced rate of growth with greater con- trol over the types and locations of development. " 29. Bosselman, "The Right to Move", op. cit., pp. 9-10. 30. Ibid. Chapter II The Nature of Zoning Zoning stands as the only major tool of the planning profes- sion to tackle the problems of growth. The basic philosophies of zoning are the threads which weave the American fabric; its techniques have been validated by the public and the Suprele Court alike. Basic changes in the concept of zoning, therefore , cannot be made lightly. The delicate balance of public and private rights regarding the use of land erbodied in zoning law must be preserved if control measures are to continue to receive widespread acceptance . Despite the existence of zoning, the problers of post World War II urban developrent are not being solved. If zoning techniques cannot control the adverse consequences of growth, then new forms must arise to accorplish the task. Because zoning protects constitutionali,‘ rights regarding the ownership and use of land, it is the standard .\) against which all other forms of growth control will be carefully measured. In view of these considerations , this chapter attempts to accorplish two objectives: 1) to consider the nature of zoning to determine if it is equal to the task of post World War II development control , and 2) to outline the basic philosophies of zoning since they are the standards against which all other control techniques will be measured. 18 19 Although sole types of land use control have been in existence in America since the founding of the Massachussetts Bay Colonies ,1 rudi- mentary "zoning ordinances" as we recognize them today did not appear until after the turn of the century. Around 1909, Boston and los Angeles enacted ordinances regulating building height and land use . In the next decade many cities passed local ordinances dividing real estate into districts which permitted sore uses and excluded others.2 The nation's first corprehensive zoning ordinance, however, was not adopted until 1916, and then by the City of New York.3 This move was followed in 1924 by the first model Standard State Zoning Enabling Act which was Fred P. Bosselman and David Callies, The Quiet Revolution in Land Use Control (Washington D.C.: Comcil o1 Env1ronmental Quality, 1971), . l and Fred P. Bosselman "Can the Town of Ramapo Pass a Law to Bind the Rights of the Whole World? " , Florida State University law Review, Voltme I, No. 2 (Spring, 1973), p. 235. Bosselman and Callies, The Quiet Revolution in land Use Control, op. cit., p. 22. Edward N. Reiner, "Traditional Zoning: Precursor to Managed Growth", in Managelent and Control of Growth-Issues—Techniques-Problems- Trends, Vollme I, Randall W. Scott, ed. (Washington, D.C.: The Elfin—lam Institute, 1975), pp. 214-215. 20 eventually adopted in sore form by all states in the U.S. Through the model act, the power to zone was granted by a state to a local ”,3, legislative body for the purpose of "proroting the health, safety, {if/Jr)“ ,‘ morals, or the general welfare of the commmity. "4 " ~‘ '3‘“ Although the scope of zoning has expanded over the years , its essential nature retains the same as that erbodied in the Standard State Zoning Enabling Act . Thus current zoning regulations "had their origins in the 1920's, the golden age of free enterprise and Specula- tion in land."5 They were developed for urban areas as a very limited use of local control to regulate only the most obvious nuisances and to protect property values.6 This degree of control was entirely in keeping with the then current assumption that "any developrent which did not reduce the value of the surrounding land should not be pro- hibited. "7 Most early regulations , the National Commission on Urban Problems concluded , were remarkably lax and prohibited only a handful 4. Reiner, op. cit., pp. 215-217. 5. John Delafons, Land-Use Controls in the United States (Cambridge, Massachussetts: the MIT Press, 1969), p. 106. 6 . National Commission on Urban Problems, "land-Use Controls: Zoning and Subdivision Regulations", (excerpts) , in land Use Controls: Present Problems and Future Reform, David Listokin , ed . (Rutgers UnIversity: Center for Urban Policy Research, 1974) , p. 24. 7. Bosselman and Callies, The Quiet Revolution in land Use Control, op. cit., p. 24. 21 of specified comercial and industrial uses even in the most restric- tive residential districts . Overzoning for business and industry "be- yond the dreams of land proroters" was the rule rather than the ex- ception. It was hoped that such optimism would attract growth and keep speculative property values high. 8 Since zming was conceived as a solutiol to the problems of overcrowding (both of structures and people) in urban areas, rural dominated state legislatures willingly left the content and administra— tion of zoning to the particular cities or localities adopting ordin- ances. Zoning thus came to reflect urban problems and aspirations. In addition to protecting property values and minimally regulating dangerous and nuisance uses in residential districts , zoning had other objectives, at least in (theory. These included preventing the over- exploitation of land, regulating population and building densities , regulating parking and fostering public service efficiency. 9 In carrying out these objectives, the role of the regulating government was essentially negative. Its aim was to "keep out the bad rather than to achieve the good. Development initiative was left with private builders . "10 The limited concept of zoning seemed sufficient to accorplish the objectives of urban control until World War II. After that time, the increased pressures'of the post W.W. II construction boom led to an expansion of the concept of zoning. Ordinances then came to specify 8. National Commission on Urban Problems, @. cit., p. 24. 9. Stephen Sussna, Land Use Control. . .More Effective Approaches (Wash- ingtol, D.C. : The Urban Land Institute, 1970) , p. 6 and National Com— mission on Urban Problems, op. cit., pp. 21—22. 10. National Commission on Urban Problems, op. cit., p. 24. 22 the uses permitted in a district rather than to merely list prohibited uses. Also, the practice of pyramid zoning, or allowing in lower dis- tricts all uses found in higher districts was eliminated. Instead, zo'iing ordinances became noncumulative. In addition to these changes , regulations became more restrictive , often requiring larger residential lots and prohibiting strip comercial development . Finally , the new techniques of performance standards , conditional rezoning and planned unit developrents were incorporated into zoning ordinances . 11 The effect of expanding the concept of zoning after W.W. II was to give it more of a positive rather than a negative or prohibitory role in urban development. The adoption of the post W.W. II items listed above served to " (plug) loopholes and (establish) more clearly the intent of the regulations to guide developrent affirmatively in desired directions. "12 Governments, however, still could not control the rate and seldom dictated the aesthetic character of development except in the broadest terms. For example, in an area of town zoned for a variety of uses, any proposal which conformed to these uses was usually permitted without respect to the aesthetic quality of the build- ing and site design or the established character of the neighborhood. As the rate of urbanization increased, these limitations proved to be serious impediments to functional and attractive land development (see Chapter I). 11. National Cotmission on Urban Problems, op. cit., p. 25. 12 . Ibid. 23 Despite an expansion of the zoling concept after W.W. II, two characteristics of traditiolal land use controls retained lmchanged /" and were serious problers. These were local focus and local adminis- / tration. Zoning had been delegated to local governments by the enabling M act because at that time most urban problems were thought of as falling neatly within municipal boundaries. After W.W. II, however, the bound- aries of cities expanded into one another, creating metropolitan areas and megalopolises. Governmental jurisdictio'ls regulating important urban services often overlapped, placing one problem under the auspices of several agencies, each working with different techniques and often at cross purposes to one another. The results of this system were bureaucratic confusion, inefficiency and excessive public costs. As Norman Williams observed, the results "are often unattractive, mono- tonous, and impersonal - and fall far short of what could be achieved with no great difficulty, within the available financial resources and design potentials (of local governments). "13 In addition to being inefficient, the local administration of land use controls was often charged with being ineffective and corrupt. This is perhaps, as Williams strongly asserts, because " (l)ocal govern- ment is traditionally the weakest point of the American derocratic sys- tem. "14 13. Norman Williams, Jr. , American Flaming law: land Use and the Police Power, Vollme V (Chicago, Illinois: Callaghan and Corpany, 1975) , p. 428. 14. Ibid., pp. 428-429. 24 The local administration of land use controls, he charges, is ignorant, parochial and corrupt. land use deClSlons are made in return for pc- WW- m u... litical favors or money with little concern for adopted local policies or the rules of law as laid down by the higher courts.15 Even adhering to local policies is often inadequate, Williams further believes, be- cause local policies may arbitrarily "forbid what is really harmless , or actively prevent sorething good. "16 Although Williams may be overstating his case, the consensus of a growing number of observers is that local administration of land use controls is usually inefficient, is costly both in time and money, and atterpts to function on an inappropriate scale (local rather than metropolitan or regional) . mo correct some of the shortcomings of.American land use controls it has been suggested that these regulatiOns be administered at a regional level . The major impetus for implementing regionalism came "with the requirerent in the Federal Highway Act of 1963 that no federal highway funds would be available in metropolitan areas except where a ' continuing comprehensive transportation planning process ' was in operation. "17 15. Williams, op. cit., p. 429.. 16. Ibid. 17. Ibid., p. 389. 25 Since transportation plans cannot be made without land use plans, the Federal Highway Act led to the creation of "large-scale general regional planning agencies for the major metropolitan regions. "18 The number and types of regional planning agencies have in— creased significantly since 1963, mainly as a response to federal and state requirerents regulating the receipt and expenditure of funds locally. Regional planning agencies, however, do not have the power to zone. Under current zoning law the power to zone must be delegated by the state to a local legislative body. Since regional or metropo- litan government does not yet exist in the U.S. , there is no legisla— tive body empowered to enact and enforce a zoning ordinance regionally . Regional planning agencies therefore have only review and advisory functions. Their power to control urban growth has consequently been as ineffective as that of local government thus far. The American system of land use control, relying almost exclusively on zoling, has been inadequate since World War II to control the rate, extent, and, in most cases, aesthetic character of growth in urban areas. In 1974 the American Society of Planning Officials (ASPO) reported on the weaknesses of traditional zoning and subdivision controls. It was being charged, ASPO surmrarized, that these controls had failed to halt urban sprawl and were inadequate to guide or regulate 18. Williams, op. cit., .p.".389.'7 26 urban development.19 ASPO further reported that the traditional con- trols often operated against the public interests, especially in.met- ropolitan regions, and were used.primarily to correct fiscal problems in local government. In addition to never carrying out a comprehensive plan, zoning interfered with housing opportunities for the poor and mdnorities, the report continued .All of this is not to say that zoning has failed to perform its function. As Edward Rainer correctly Observed, "zoning for fifty years substantially achieved its main objectives: segregation of incon- sistent uses, provision of public services, and preservation of property values."20 Zoning was simply not intended to regulate the rate or ulti— mate extent of development. Given this situation what can be done? One often quoted writer has called for a quiet burial of zoning. "we have unnecessarily prolonged the existence of a land use control device conceived in another era.when the true and frightening complexity of urban life was barely appreciated. we have, through.heroic efforts and with massive doses of legislative remedies, managed to pre- serve what.was once a lusty infant not only past the retirement age but well into senility. What is called for is legal euthanasia, a respectful requiem, and a 19. American Society of Planning Officials, "Problems of Zoning and Land USe Regulation", in Listokin, ed. op. cit. pp. 35-36. For this presentation the order of the charges as they appeared in the article were rearranged and.many were left out. 20. Reiner, op. cit., pp. 221-222 27 search for a new legislative substitute sturd enough to survive in the modern urban world. " 1 Other writers see no need for a radical departure from zoning, but believe it will evolve, as it has been doing, until it becores an effective tool of managed growth. Zoning, it is argued, "was never allowed to encolpass or accotplish the broad and multifaceted objec- tives of conterporary managed growth programs. "22 The newly ererging concepts of growth managerent, including sequential growth and popu- lation "caps" , have evolved out of traditional zoning. If zoning col- tinues to evolve it is believed that an effective growth control mech- anism will result. Still other writers believe that zoning itself is adequate to manage urban growth if it is administered by a competent authority. Bosselman and others therefore suggest that the States take back much of the power to control land use that has been delegated to munici- palities. With state level administration, it is reasoned, much of the parochialism that characterizes local zoning administration can be eli- minated. local corruption and graft in land use matters, unconcern for the environment, and encouragement of rapid growth for questionable fiscal benefits can be reduced if the states are the zoning authority, many believe. This is possible because of the states' greater funding potential, larger reservoir of professional expertise and ability to apply the same land use policy in all localities. 21. John Reps, "Requiem for Zoning", (excerpts), in land Use Controls: Present Froblers and Future Reform, op. cit. , p. 29. 22. Reiner, op. cit., p. 211. 28 The attitude that zoning in its present form is now inadequate to control urban growth has fueled what Bosselman calls "the quiet revolution in land use controls".23 What the revolution is calling for are new concepts and techniques to effectively manage the timing, extent and character of urban developrent. It is too early to pre- dict what the future nature of land use controls will be in this country if the quiet revolution succeeds . The widespread acceptance of new tools has not yet occurred. Instead, the "revolution" is in a stage of experimentation to arrive at new legislative and ad- ministrative forms. It should be noted that although zoning alone has been Imable to manage rapid growth successfully, it is playing an important role in the search for new control forms. Since zoning is an accepted legal and philosophical device, new growth management techniques are being incorporated into existing ordinances . Experimentation is thus possible without suspending existing controls . Considerable legal and philosophical controversy nonetheless surrounds any introduction of substantially different techniques into zoning, as the cases of Ramapo and Petaluma illustrate . The remainder of this thesis examines the managed growth experiments of two communities - Ramapo, New York and Petaluma, Cali- fornia . First, the planning program and specific techniques utilized by each commlnity will be explained. This is followed by a survey of 23. Bosselman and Callies, op. cit., p. 3. 29 the major constitutional and legal criteria which will determine the acceptance or rejection of each technique in the American system. The thesis concludes with an evaluation of the implications that man- aged growth may have on the future of planning and land use control. Chapter III Ramapo, New York: Controlling Growth Through Development Timing This chapter begins the analysis of the managed growth tech- nique developed in Ramapo in the 1960's. Four topics will be discussed: 1) Ramapo's location and Growth History; 2) Ramapo's Planning Process; 3) The Nature of Ramapo's Growth Control Technique, and 4) The Results of Ramapo's Plan on Its Development. The following chapter will examine the legal and constitutional implications of Ramapo ' 3 system of develop— ment timing. Ramapo' 3 location and Growth Histogy The Town of Ramapo is located in Rockland Comty, New York approximately 30 miles northwest of New York City on the west side of the Hudson River and just north of the New Jersey state line. Ramapo consists of the six incorporated villages of Sloatsburg, Hillburn, Suffern, Spring Valley, New Square and Porona plus the unincorporated areas (See Figure l) . Included in the unincorporated area are 12 square miles of land in Palisades Interstate Park which are not to be developed. The seven governmental units (six incorporated areas plus the unincor- porated rerainder of the township) cover 89 square miles while the un- incorporated area alone is 48. 6 square miles. This makes Ramapo geo- graphically larger than most cities in New York State. 1 It should l. Manuel S. Emanuel, "Ramapo's Managed Growth Program: A Close look at Ramapo After Five Years Experience" , Planners Notebook, Volume 4, No. 5 (October, 1974), p. l. 30 31 Figurel Town of Ramapo County, New York T Haverslr melanin 1° UMOI Developed Areas - 1969 ‘ Town and County Parks 1 {.3 Incorporated Villages ‘ - + Analysis Sectors D Taken fromManual S. Emanuel, “W s Managed Growth Program: Cltselook at Ramapo After Five Years Experience," Plarmers Notebook, Volume 4, No. 5 (October, 1974), p. 6. .3 2 be noted that planning activities for the Town of Ramapo apply only to the unincorporated areas of the tomship - not to the incorporated villages. With the opening of the Tappan Zee Bridge across the Hudson River, Ramapo became an easy 25 mile commuting distance from the heart of New York City, and thus "accessibly suburban to New York City. "2 This spurred a rapid increase in development activity and population . From 1940 to 1963 the population of New York State increased by 31.3 percent while that of Rockland County and Ramapo increased by 118.2 and 285.9 percent respectively.3 According to the U.S. Census, Ramapo had 35,000 people in 1960 and 76,702 in 1970. At that rate of growth 125,000 people were expected to reside in Ramapo by 1979.4 2. Israel Stollman, "Ramapo: An Editorial and the Ordinance as Amended", in Management and Control of Growth: Issues-Techniques- Problers—Trends, Volume I, Randall W. Scott, ed. (Washington, D.C.: The Urban land Institute, 1975), P. 5. 3. Randall W. Scott, "The Ramapo Case: Five Zoning Digest Cormenta— ries" , in Management and Control of Growth: Issues-Techniques- Problems-Trends, Volume II, Randall w. Scott, ed. (Washington, D.C.: The Urban land Institute, 1975), p. 36. 4. Robert H. Freilich, "Golden v. Town of Ramapo: Establishing a New Dimension in American Planning law" , The Urban lawyer, Volume 4, No. 3 (Sumter, 1972), p. xi. Stollman, op.Et., p. 5 reported that Ramapo's population was expected to be 120,000 by 1985. 33 The fastest rate of growth in Ramapo was occurring in the unincorporated suburban areas. Between 1960 and 1966 alone, this popu- lation increased by 78.5 percent, "a faster rate than any other unin- corporated township in the state."5 By 1964 "a little more than one half of the unincorporated land was considered developed and unavailable for future growth, including all active use areas as well as the large state park holdings."6 Despite its rapid growth, Ramapo attracted almost no indus- trial and little neW'commercial development. "Commercial development was of a local service nature, with the major retail centers remaining in the older villages, particularly Spring valley and Suffern. Indus- trial development growth was extrerely limited, also confined in or near the older population centers."7 Whthout an employment base Ramapo was developing as a.wealthy, white bedroom suburb of New York City. "In 1960, over 91 percent of the bores in the unincorporated area of Ramapo were single family dwellings, much larger than the county percentage of 80.6 percent."8 Of these households, less than one-half of one percent were black. By 1970 only a little more than one percent of all households in the 5. Emanuel, op. cit., p. l. 6. Ibid., pp. 1-2. 7. Ibid. 8. Ibid., p. 2. 31+ unincorporated area were occupied by blacks . 9 The asking price for housing in Ramapo's mincorporated area in 1970 exceeded $50,000 per unit according to the U. S. Census except for one tract bordering Spring Valley where prices were $33,300. Ramopo ' 5 Planning Process "Development timing", as Ramapo's growth control technique is known, was officially instituted in the 1969 amendrents to the Town's zoning ordinance. These amendments, however, were actually the implerenta— tioi device for a series of planning decisions which had been made be— tween 1964 and 1969. Development timing in Ramapo therefore includes several pre-l969 documents: a master plan, a corprehensive zoning ordi- nance, sewer district and drainage studies, a capital budget, and a capital program. As the courts later pointed out, all of these documents are necessary for the constitutionality of development timing. Without them the amended zoning ordinance would have been arbitrary and unreason- able , and therefore invalid. The basis of development timing in Ramapo began in 1964 with the granting of a federal 701 planning assistance grant to write a corprehensive master plan. The corpleted document , which was adopted by the town Flaming Board in July, 1966 contained "staterents of basic development policies , planning principles and recomrendations with respect 9. Herbert M. Franklin, "Controlling Urban Growth: But For Whom? The Social Implications of Development Timing Controls" , in Manage— ment and Control of Growth: Issues-Techniques—Problems-Trends , Volure II, Randall W. Scott, ed. (Washington, D.C.: The Urban land Institute, 1975), p. 84. 35 to: residential development; comrercial and industrial development; traffic circulation, streets and highways, and transportation; recrea- tion facilities and open areas; and public and semi-public facilities, such as public schools, town office and garage facilities, fire sta- tions, post offices, libraries, hospitals, sewage disposal, water supply, refuse disposal and storm drainage. "10 Embodied in the Master Plan's recommendations were two key development policies which.were "basic to Ramapo's managed growth pro- gramh"11 They'were:_l)fl"Th§#population increase provided for in the Town's Development Plan should be kept to a moderate level so that the existing rural, semirural and suburban character in different parts of the Town can be maintained and so that the existing and projected public facilities will not be overburdened" ;12 and 2) "Provision should be made for adequate public facilities (e.g.,wfransportation, circulation, education, recreation, etc.) consistent with the anticipated needs of.a growing population."13 It also became Planning Board.policy in the master plan that residential densities should be greatest in the'Villages while de- creasing outwardly and that " (r) esidential densities should be con- sistent with the character and density of surrounding developed areas , 10. Emanuel, op. cit., p. 2. 11. Ibid. 12. Ibid. 13. Ibid. 36 topography, the adequacy of circulation and other cormunity facilities and the overall objective of providing for a moderate pOpulation in- crease in the mincorporated portion of the Town."l4 To this end three residential zone districts were specified in the plan — a low density zone of one family or less per acre, a medium low density zone of one to two families per acre, and a medium density zone of two to four families per acre. Based upon the recomrendations of the master plan a preli- minary list of capital improvements was made which included recomrended priorities, preliminary cost estimates and probable sources of funds. The priorities were expressed in three groupings: highest, to be under- taken in three to six years; second highest, to be undertaken in six to ten years; and third highest, to be undertaken in ten to fifteen years. These recomrendations were to form the basis of a detailed capital improvements program to be deve10ped at a later date. "To protect the integrity of the master plan, and the pro- posed changes in the zming ordinance and zoning map which were under consideration upon corpletion of the Master Plan" ,15 the Interim De- velOpment law was adopted. This law prohibited the issuance of building permits for six months in those areas designated for change in the . Master Plan. The legality of the Interim Development law - the first of its kind in planning history - was upheld in Rubin v. McAlevoy as a "constitutional and a valid protection of the planning process and 14. Emanuel, op. cit., p. 2 15. Ibid. 37 orderly growth of the commmity."16 On the basis of the Master Plan and capital improvement recomendations , the Town Board adopted a comprehensive revised zoning ordinance on December 29, 1966. Its stated purpose was "to limit development to an amount equal to the availability and capacity of public facilities and services. "17 Using the zoning bulk and lot size requirements of the new ordinance, "the Town was able to calculate population capacity in different areas and to establish a reasonably exact evaluation of the deficiencies and needs for sewers , highways , recreational facilities , drainage facilities and firehouses and other things . "18 An official map was developed as the next step in the Ramapo planning process. This was done with the information supplied by the population and public facility calculations , the Zoning ordinance and the Master Plan projections. The official map, which was adopted in August, 1967 identified existing and proposed highways, parks and drain- age facilities. The map was a crucial elelent in the plarming program since no building permit could be issued for construction in the bed of any existing or proposed street or highway shown on the official map. With the basic corponents of Ramapo ' s desired future thus defined, three detailed studies were conducted: a drainage study, or 16. Ehanuel, op. cit., p. 3. 17. Ibid. 18. Ibid. 38 sewer stugy and a recreational facilities study. The results of these studies were used to refine and amend the Master Plan and the official map. In addition, these studies "were extrerely critical in establishing the elements, cost estimates and priorities of the capital improverent program. "19 Armed with the results of the planning process begun in 1964, the Town prepared and adopted a capital budget in November, 1968. The capital budget provided a firm commitrrent for the development of capital improvetents for a period of six years . For the twelve year period following the effective period of the capital budget, a capital plan was developed. The capital budget and the capital plan together provided for the location and sequence of capital improverents in Ramapo for 18 years. This was the period in which the Master Plan anticipated the full development of the Town. As the final step in establishing a growth control mechanism in Ramapo, the zoning ordinance was amended to create both a timing device for the staging of public and private development and a point system upon which development permits were to be granted. These imple- mentation teclnniques were adopted into the zoning ordinance in October , 1969 and constitute what most peOple refer to as Ramapo's system of development timing. (The entire text of the pr0posed amendrents of 1969 is reprinted in Appendix A). It should be noted that throughout the process culminating in development timing and thereafter documents were continually amended and updated as new information became available. 19. Emanuel, op. cit., p. 3. 39 The Nature of Ramapo's Growth Control Technique The 1969 amendrents to Ramapo's zoning ordinance applied only to residential development proposals . Nonresidential development is not subject to the timing devices and point system of development timing. The primary objectives of the amendrents are the principles established in the Master Plan: "1) To economize on the costs of municipal faci- lities and services to carefully phase residential developrent with efficient provision of public im— proverents; 2) to establish and maintain mmmicipal control over the eventual character of development; 3) to establish and maintain a desirable degree of balance among the various uses of the land; and 4) to establish and maintain essential quality of community services and facilities."20 To achieve the goals of the Master Plan, an additional class of special permit use, a Residential Development Use, was added to the zoning ordinance. "It requires a residential developer to obtain a special permit for such use from the Town Board prior to the issuance of any building permit, special permit from the Board of Appeals, subdivision approval or site plan approval by the Planning Board."21 Furthermore, no special permit shall be issued unless the residential development has 15 development points based on the availability of various facilities classified under the following headings: l) sewers, 2) drainage, 3) improved public park or recrea- tional facility, 4) state, county or town major, secondary,or collector 20. - Stollman, op. cit., p. 10. 21. Emanuel, op. cit., p. 4. 40 road(s) improved with curbs and sidewalks, and 5) firehouse. Using these categories a possible maximum of 23 points may be given to the proposed development according to the availability and quality of the facilities listed under each leading (for a corplete description of the point system, see Appendix A). Under the Ramapo plan, no developer would be denied use of his land for a period exceeding 18 years. If the particular parcel to be developed did not have access to enough public facilities to ac- quire the needed 15 points for special use approval, the developer could install the facilities at his own expense to acquire the points. He could otherwise wait lmtil the Town installed the improvelents since the capital program and budget specified when and wlnere the various services and facilities would be available during the Town 18 year development period. "Hence , no developer would have to wait more than 18 years for enough points to permit subdivision of his property, and he would, in fact, be able to calculate the precise year in which he would accu- mulate the sufficient number of points. This would be a vested property right (i.e., one which could be sold or assigned to others) in that the property owner would obtain a permit in the year specified by the capital program, even if the facilities had not been corpletely installed in his area. "22 Under the Ramapo plan then, a developer could be granted a post-dated permit to build in the year that the capital program specified 22. Scott, "The Rarapo Case: Five Zoning Digest Commentaries", op. cit., p. 33. 41 adequate facilities would be available to his development site. This system related "residential development to capital investment , linking the private initiative to the public capacity. . . Since the restrictions on the land were only temporary - limited to a foreseeable period, or the period of the plan - it would not be a permanent restriction on de- velopment. These restrictions would be reasonable , since the public would be under a correlative duty to fulfill the capital budget and plan. "23 In addition to providing improvetents himself or accepting a present permit to develOp at a future date when the Town will have installed the necessary improverents, other cptions are open to an owner or developer of residential land. The developer may apply to the Town Board for a variance in the number of points needed to develop his parcel. This variance may be granted if the Board determines that such a modification is consistent with the on-going development plan.24 As another alternative , a deve10per may apply for a reduction in the assessed valuation of his land to reflect the terporary restrictions on its use . As an important corollary to the managed growth program the Town in 1967 passed a law creating the Deve10pment Easerent Acquisition 23. Scott, "The Ramapo Case: Five Zoning Digest Comrentaries", 0p. cit., p. 36. 24. Court of Appeals of New York, "Rarapo: The Case Decision", in Managerent and Control of Growth: Issues-Techniques-Problems- Trends, Volume II, Randall W. Scott, ed. (Washington, D.C.: The Urban land Institute, 1975) , p. 16. 42 Cbmmdssion (DEACOM). Its purposes are to maintain lands as open space, to control the rate of development of the Town and to enhance the con- servation of natural and scenic resources. Uhder the DEACOMlprograml a developer who does not expect to be eligible for development approval under the point system.for a number of years may request the Town to acquire his land as a development easement for a period of not less than five years. "If such an easement is acquired, the assessed valua- tion of a given parcel of land is proportionately reduced, upon advice of the Town Assessor, by reason of the prospective limitation on the future use of the land."25 The Results of Ramapo's Plan on Its Development In establishing development timdng in Ramapo the town was not trying to limit its growth or exclude prospective residents. At the end of 18 years the entire town was expected to be fully developed. "Ramapo merely wan ", as Finkler and Peterson pointed out, "to stretdh out a complete buildup of its area from.the expected 'natural' period of nine years to a 'planned' period of 18 years."26 .Attorney for the Town of Ramapo, Rdbert Freilich, predicted, in fact, that at the end of the 18 year capital plan Ramapo would have "greater population and 25. Emanuel, op. cit., p. 7. 26. Earl Finkler and David L. Peterson, Nongrowth Planning Strategies - The Developing Power of Towns, Cities, and Regions (New Yerk: Praeger Publishers, 1974), p. 20. 43 density and economic mix than most suburban commmities."27 Planning has slowed the rate of growth in Ramapo. Writing in 1975 Sylvia Iewis reported that town officials were approving approxi— mately 350 building permits per year, down from 620 amually before 1969.28 As shown in Table 1 approximately 350 lots and 367 dwelling units excluding 203 public housing units received permits between 1969 and June, 1974. Furthermore, most of tiese units were constructed close to existing development in areas of high activity, avoiding sparsely developed areas.29 This filling in pattern has been a major goal of the managed growth program. In regard to the point system, total mean values appearing on applications during the five year period were as follows : special permits, 16.10 points; variances granted, 10.57 points; variances denied, 9.49 points. The mean number of lots for special permits averaged 13. 96 lots per application; 4 .44 for variances granted; and 9.42 for variances denied. "This indicates that variances granted tend to be for small numbers of lots while thoSe denied are for larger numbers. "30 Like deve10pment timing the DEACIXVI program has also been 27. Scott, "The Ramapo Case: Five Zoning Digest Comrentaries", op. cit. , p. 39. 28. Sylvia Lewis, "The Jury's Out on Growth Control", Flaming, the ASPO Magazine, Volume 41, No. 1 (January, 1975), p. 8. 29. Emanuel, 0p. cit., p. 7. 30. Ibid., p. 8. M4 M31 Managed Growth Activity mm 1969 to June, 19741 Sector ial rmits 3 variances Granted ‘Vari ' w fizz-Em ca- m or Lots Acres tims tion: tion: 1 0 0 0 3 3 5.52 0 0 0 2 8 108 132.07 19 81 63.15 4 so 41.56 3 26 277 341.20 23 55 48.83 0 0 0 4 9 203 196.61 29 89 68.59 3 20 19.37 5 18 253 173.70 30 195 90.84 2 7 4.14 6 8 126 196.71 30 53 60.95 1 18 20.67 7 2 24 43.83 12 172 150.23 2 '18 14.86 metals 71 991 1,084.12 146 648 488.11 12 113 100.60 1. Takenfrun”Ramepo'sManagederthProgram:ACloseLookatPampo After Five Years Dcperience" by Manuel S. Emanuel in Planner's NotebookLVolure 4, Nurber 5, October, 1974, p. 7. See Map 1 for Sector identificatim. Includes all Special Permits granted for present or future date. 45 successful in controlling the rate of growth and preserving open space. "As of July, 1974, there were over 150 properties, constituting almost 1,700 acres of land, still taking advantage of the DE‘ACOM law. These properties would normally be assessed in the aggregate at approximately $7.5 million; under DEACOM abatement their combined assessment totaled about $3.5 million."31 In addition to reducing property taxes for certain individuals , DEACOM insures the preservation of open space during a crucial phase of community deve10pment, in some cases up to 24 years. Canmmity pride in Ramapo has risen significantly since the inception of develogment timing. Residents feel that .the town's ame— nities are not being swept away by the tide of rapid, unplanned deve lop- ment. "As for the feeling of the place, 'It's Changed', said Leah Chanofsky, deputy administrator to the town's boards and commissioners. 'Ycu can see beautification proj ects everywhere , even in renovations . Also, schools are no longer overcrowded. Our system has improved the lives of people here' . "32 While not all residents of Ramapo are as satisfied with development timing, particularly those denied permits for immediate development, the system has proved successful in controlling the rate and character of new residential growth . This chapter carpletes the discussion of Ramapo's system of growth management. Development timing, as the Ramapo tecrmique is called, was in effect without interruption from 1969 until it was challenged in 31. Eranuel, op. cit., p. 7. 32. Lewis, op. cit., p. 8. 06 in a legal suit in 1971. The following chapter examines the legal and constitutional issues which arose in the Ramapo case litigation. Chapter IV legal and Constitutional Issues of the Ramapo Case In Golden v. Planning Board of Ramapo and the companion case, Rockland County Builders Association v. John McAlevey, the legality of development timing in the Ramapo plan was challenged by a coalition of landowners and hmebuilders.1 The case was first heard in the lower court of New York where the legality of the Ramapo plan was upheld. This decision was appealed to the State Appellate Division which ruled in favor of the plaintiffs, declaring Ramapo's amended zoning ordinance unconstitutional . On further appeal to the New York State Court of Appeals the Appellate Division ruling was reversed on May 3, 1972. Thus the Court of Appeals upheld the constitutionality of the ordi- nance. A final appeal to the United States Suprete Court was dismissed on Noverber 14, 1972 for want of a substantial federal question.2 Ascanbeseenfrcmtheappealsprocessinthe Ramapocase both the arguments for and against developlent timing are persuasive and have been accepted by the courts at some level. The central l. Randall W. Scott, "The Ramapo Case: Five Zoning Digest Comentaries", in Managerent and Control of Growth - Issues-'I'ecl'miques-Problems- Trends, Volume II, Randall W. Scott, ed. (Washington, D.C.: The Urban land Institute, 1975), p. 40. 2. Ibid. 47 48 constitutional issues debated in this case and in similar cases in other states have been the same despite the court's final ruling.3 In the Ramapo case the petitioners charged, among other things, that the plan violated their constitutional guarantees of fidue_prgce§sf and "equal protection". '5 ““%‘__‘ U. “4””? In the remainder of this chapter, the due process and equal protection arguments of the Ramapo case are discussed. The "pro" and "con" positions expressed will be those presented to the New York State Court of Appeals which rendered the final decision on the case. All references to the decision and opinions of the court will refer to those of the Court of Appeals unless otherwise indicated. DUE PROCESS "Due process" refers to the guarantees of the fourteenth amend- ment to the U.S. Constitution. When used in zoning and development timing cases the concept covers several interrelated legal arguments. These arguments as they relate to the Ramapo case in particular can be summarized as follows: .All state legislatures have adopted some type of enabling act which confers to municipalities the power to regulate land use. In the enabling act this power is regarded as a function of the "police power" granted to a.mnnicipality so that it may protect the health, 3. .Most development.timdng and exclusionary zoning cases focus on the constitutional issues of due process, equal protection and the right to travel. In the Ramapo case, due process and equal pro- tecticn were central. The right to travel was not a major issue. 49 safety, morals or general welfare of its citizenry. In exercising its police power a municipality must inevitably restrict the rights of sore citizens to act. This restriction is not, however, considered a violation of state and federal constitutional freedoms if it prorotes the general welfare of the community and is not in itself unreasonable and arbitrary. 4 To establish that a land use regulation is an goonstitutional violation of due process it must usually be shown that: 1) its exer- w—J‘D“ cise is not legitimately granted to the municipality by the state elabling legislation, or 2) it does not fall within the "police power" and therefore does not protect the health, safety, morals or general welfare of the community, or fl/the regulation is arbitrary and unreas- onable. It may also be charged that specific constitutional rights have been denied to a party without "due process" (the proper exercise of a legitimate power). For example, in zoiing challenges it is fre- quently argued that the use of a person's land has been denied without "due process" or just compensation. In Golden v. Flaming Board of Ramapo the plaintiffs charged that the amended zoning ordinance of 1969 "was ultra vires and void because the power to control growth through sequential development 4. United States Court of Appeals, Ninth Circuit, "Construction In- dustry Association of Sonola County v. The City of Petaluma", CasesoDecision, 522 Federal Reporter, 2d Series (AUGUSt,'l9.75) , p,r't 6'. —'—'_"'"'-~_"" W ‘, 50 limitations had not been delegated to the town (by the state enabling legislation) . "5 Although it was accepted that the municipality had the power to zone , development timing was not considered a legitimate zoning function . In its dissent to the majority opinion, the Court of Appeals took a narrow interpretation of the powers granted in the enabling legislation. Quoting the latter it held that "For the purpose of promoting the health, safety, morals, or the general welfare of the community, the town board is hereby erpowered...to regulate and restrict the height, number of stories and size of buildings and other structures , the percentage of lot that may be occupied, the size of yards, courts, and other open spaces, the density of population, and the location and use of buildings , structures and land far trade, industry, residence or other purposes . " The ordinance "says nothing about exercising control in time . "7 The latter is therefore not a legitimate zoling function. Fred P. Bosselman, "Can the Town of Ramapo Pass a Law to Bind the Rights of the Whole World?" , Florida State University Law Review. Volume I A (19.73); p. 241 ' ‘ ‘ Court of Appeals of New York, "Ramapo: The Case Decision", in Man- agement and Control of Growth - Issues-Techniques-Problems-Trends, Volume II, Randall W. Scott, ed. (Washington, D.C.: The Urban Iand Institute, 1975), pp. 26-27. Ibid., p. 27. -———-— 51 The above argument was rejected in the majority opinion . " (T)he challenged amendments are proper zoning techniques, exercised for legitimate zoning purposes. The power to restrict and regulate. . .includes within its grant, by way of necessary implication, the authority to direct the growth of population for the purposes indicated (in the Ramapo plan), within the confines of the township. It is the matrix of land use restrictions, . . .a necessary concomitant”: to the municipalities ' recognized authority to deter- mine the lines alolg which local development shall proceed. "8 "The court looked to the basic purpose of zoning and con— sidered the 'effects of the statutory schere taken as a whole, and its role in the propagation of a variable policy of land use and planning. "'9 The legitimate purposes of zoning, it was ruled, "are designed to secure safety from various cala— mities , to avoid undue concentration of population and to facilitate adequate provision of transporta- tion, water, rage, schools, parks and other public requiretents . " ’ These purposes are also the rationale for development timing , it was concluded , making the latter a legitimate zoning function . After setting aside the charge that develOpment timing was not a delegated zoning f1mction, the court reviewed the plaintiffs ' charge that the Ramapo schere violated the general welfare of the Court of Appeals of New York, g. cit., p. 17. Scott, "The Ramapo Case: Five Zoning Digest Commentaries", op. cit. , Court of Appeals of New York, op. cit., p. 17. 52 community and so was not an exercise of the police power.11 Persons, especially those seeking multi-family or public housing, who could not find housing in Ramapo would be forced to locate in other parts of the region . Then the region would suffer from overcrowding while Ramapo would enjoy the luxury of (a select and limited population.12 This schere, "(i)n operation and'in total effect... is detrimental to the public interest because it adversely affects the general welfare of the region over an extended period of time."13 In addition to regional hardships the Ramapo plan was chal- lenged with adversely affecting the general welfare of individuals by creating undue hardships for developers and inequities for land- owners wanting to develOp. Aspects of the plan constitute "taking" and impose "an meonstitutional and special burden on landowners who. . . are forced to provide public services at private expense on land which they are not developing or which they do not own."14 11. Scott, "The Ramapo Case: Five Zoning Digest Commentaries" , op. cit. , p. 41. 12. Herbert M. Franklin, "Legal Dimensions to Controlling Urban Growth", in Managerent and Control of Growth - Issues—Techniques-Problems- Trends, Volume II, Randall W. Scott, ed. (Washington D. C.: The Urban land Institute, 1975) , pp. 228 and 235, and Court of Ap- peals of New York, pp. cit., p.29. 13. Scott, "The Ramapo Case: Five Zoning Digest Comentaries", op. cit. , p. 43. ' ""' —" 14. Ibid., p. 41. 53 The court rejected the above arguments, affirming that the Ramapo plan contributed to the general welfare of the community. " (T) he present amendments merely seek, by the im- plementation of sequential development and timed growth, to provide a balanced cohesive community dedi- cated to the efficient utilization of land. The restrictions conform to the community's considered land use policies as expressed in its comprehensive plan and represent a bona fide effort to:maximize population density consistent with orderly growth... We may assume, therefore, that the present amendments are the product of foresighted planning palculated to promote the welfare of the township." 5 Although the court expressed the need to consider the re- gional impact of plans, it saw its role as one of evaluating only the effects of the plan on Ramapo itself. Where the "challenge of popula- tion growth" had been confronted "with.open doors", the court is "right- fully reluctant to strike down suCh schemes".l6 Dictating that broader regional schemes should be employed was a task the court chose to leave to the legislature. In response to the charge that the plan creates undue hard- ships on individuals, the court stated that "(e)very restriction on the use of property entails hardships for some individual cwners...(T)he pecuniary profits of the individual must in the long r39 be subordinated to the needs of theecommmmity." 15. Court of Appeals of New YOrk, cp. cit., p. 21. 16. Ibid. 17. Ibid., p. 22. 54 In any case, the tgkingflof, landowas.-not an..issue in the Ramapo plan since the restrictims placed on property were temporary, not to exceed 18 years. "(T)he landowner", the court declared, "might be compelled to chafe Lmder the temporary restriction, without the heme- fit of . . .compensation, when that burden serves to prorote the public good."18 To further obviate the taking issue, the court pointed out that other uses were open to owners who were denied development permits. Under the plan an owner "is not deprived of either the best use of his land or of numerous other appropriate uses , still permitted within various residential districts , including the colstruction of a single-family residence, and pansequently, (the ordinance) cannot be deemed confiscatory. " The final major argument used to establish that a land use regulation is a violation of due process is that it is arbitrary and unreasolable. This was charged by the plaintiffs in the Ramapo case and affirmed in the dissenting court Opinion.20 ' The latter held that "clever drafting (in the Ramapo ordinance) unreasonably stretched the (enabling) statute's references to con- trolling population dmsity , and to providing for public facilities. " 1 18. Court of Appeals of New York, pp. cit., p. 22. 19. Ibid. 20. Scott, "The Ramapo Case: Five Zoning Digest Comentaries", op. cit. , p. 42. 21. Israel Stollman, "Ramapo: An Editorial and the Ordinance as Amended", in Management and Control of Growth - Issues-Techniques-Problems- Trends, Volume II, Randall W. Scott, ed. (Washington, D.C.: The Urban Land Institute, 1975), p. 6. -_‘— __ ~‘vuf'mm; ~’-_ c‘.:- _ .. - ‘ . _‘ _x""‘ f¢m-m5§3 :1:- ...~ 55 The disselt also found another aspect of the plan unreason- ably novel : "the departure from traditional city development ‘2 in which private investment comes first, compelling [w the later assumption of public responsibility for the costs of providing services. "2 i ,J Other unreasonable aspects of the plan noted by the dissent were its 18 year moratorium on development and its unsound "social and economic ramifications for the locality, region and state. "23 Included in the latter charge was the plan's assumed effect of "im- pair(ing) the freedom of moverent or residence of those outside their (Ramapo) borders. "24 In the majority opinion all of these arguments were dismissed. The court reviewed Ramapo's entire planning process and gave great weight to it in determining that the amended zoning ordinance was reason- able and not arbitrary. As Robert Freilich,Attorney for Ramapo, ob- served, "No other community or region can adopt...timing controls and succeed in withstanding a similar legal assault, if they have not also done all of the other things necessary to detonstrate that what they are 22. Israel Stollman, "Ramapo: An Editorial and the Ordinance as Amend ", 23. 24. in Management and Control of Growth - Issues- T'ectmiqpes—Problems- Trends, Volume II, Randall W. Scott, ed. (Washington, D.C.: The Urban land Institute, 1975), p. 6. Court of Appeals of New York, op. cit. , pp. 27-30. Ibid., p. 30. 56 doing is a part of and consistent with $011} community planning 39d not an effort to t growth or exclude pe0p1e. " The court itself affirmed the reasolableness of the Ramapo plan with these words: "Considered as a whole , it represents both in its inception and implerentation a reasonable attempt to provide for the sequential , orderly development of land in conjunction with the needs of the commi- nity, as well as individual parcels of land, while simultaneously obviating the blighted aftermath which the initial faiéure to provide needed facilities so often brings. " As discussed above, the court also found development timing to be an entirely appropriate zoning function to direct the growth of popu- lation and "to phase residential development to the wan' s ability to provide. . .facilities or services."27 As summarized in the court opinion, "Where it is clear that the existing physical and it financial resources of the community are inadequate to furnish the essential services and facilities which a substantial increase in population requires , there is a rational basis for 'phased growth' and . hence , the challenged ordinance is not Violative of F the Federal and State Constitutions . "28 25. Scott, "The Ramapo Case: Five Zoning Digest Comrentaries", pp. cit. , p. 39. 1 26. Court of Appeals of New York, pp. cit., pp. 21—22. 27. Ibid., p. 16. 28. Robert H. Freilich, "Golden v. Town of Ramapo: Establishing a New Dimensio1 in American Planning Law", The Urban Lawyer, Volume 4, No. 3 (Sumer, 1972), p. xiii. 57 To the challenge that the 18 year moratorium on development was unreasonable and arbitrary the court replied that it was temporary, and merely conditioned , but did not deny , applications for develOpment permits.29 Paraphrasing the court's opinion, Bosselman noted that " (T)he town will never need to deny an application for a develOpment permit , but can merely delay the effective dateof the permit until such E4108 as the needed facrlities are to be constructed. Furthermore , the potentially unreasonable and arbitrary nature of the moratorium is retoved through "certain savings and reredial provisions" of the amendment.31 For example, 1) a present permit to develop at a future date may be issued, 2) a developer may install the improve- ments himself to acquire the points needed for a permit, 3) the number of points required for a permit may be varied by the Town Board in Special circumstances and 4) tax relief is offered to compensate for the decreased value of property while the moratorium is in effect. The court also did not colsider the plan's effect on the locality, region and state to be unreasolable or to impair freedom of movement. In fact, the court found the plan beneficial to the area since it coupled its timing coltrols with "provisio15 for low 29. Bosselman, "Can the Town of Ramapo Pass a Law to Bind the Rights of the Whole World?", pp. cit., p. 240, footnote #27. 30. Ibid., p. 240. 31. Court of Appeals of New York, op. cit., p. 16. 58 and moderate incore housing on a large scale" which might not have heel built otherwise.32 The intended effect of the plan was not to deny persons residence in Ramapo but to phase the town's growth over an 18 year period. As Freilich pointed out, "Ramapo at the end of the 18 year capital plan will have greater population and density and economic mix than most suburban communities. It is not exclguding growth but timing and sequencing its growth."3 Equal Protection Although most of the arguments presented to the Court of Appeals against the Ramapo plan relate to violations of due process, violations of equal protection were also cited. As was frequently the case with due process violations, issues overlap and much of the evidence presented to substantiate equal protection violations was also used in due process arguments. Nevertheless, charged violations of equal protection in the Ramapo case fall under two categories: 1) violations against prOperty and 2) violations against persons . 32. Court of Appeals of New York, op. cit., pp. 21—22. It slould be noted that a major point of the dissent was that the Town of Ra- mapo allowed only 198 units of low incore housing to be built and did not provide for additional apartments , multifamily housing or row housing in its zoling ordinance. (See David W. Silverman, "A Return to the Walled Cities: Ramapo as an Imperium in Imperio", in Managerent and Control of Growth, op. cit., p. 53 and Herbert M. Fran]_l__an and the HousingElerent of the General Plan. Each of these docu- ments develops policies in an increasing order of specificity with the latter docurent being updated amually. The RDCS regulates only resi- dential subdvision development involving five or more lots . A single family home to be built on a single existing lot is not subject to RDCS 72 regulation. TheRDCSestablishesaSOOnmitquotaasthetotalnutber of new residential units which may be constructed annually between 1972 and 1977. The quota is allocated along different areas of the city and for different housing types with the City council retaining the authority toraiseorlowerthequotabyuptotenpercentforanyarea. Ifthe qnotaisadjustedbythecomcilinoneyear, subsequentarmualquotas must be correspondingly adjusted up or down. The City Council can also require that between eight and twelve percent of each year's quota be allocated to low and moderate incone housing. Inadditiontothequotas, theRDCSrequiresthatdevelopers dedicate portions of a greenbelt around Petalura's urban area upon re- ceiving permission to develop. The greenbelt, "a landscaped strip park approximately 200 feet in width'"13 is intended to define Petaluma's boundary for urban expansion for ten or twenty years (until 1982 or 1992). "No residential development will be permitted out- sidetlnegreenbelt, andthecitywillrefuseannexa— tion and utility extension to that nonurban area, and will solicit the cooperation of Sonoma County to prevent residential development outside the green- belt. "14 To receive permission to build, all developers mnst submit applicationstobuildinoneyearbyacertaindateinthepreceding year. The Residential Development Evaluation Board (RDEB) , conposed of 13. Herbert M. Franklin, "legal Dimensions to Controlling Urban Growth", in Managerent and Control of Growth, @. cit., p. 224. 14. Ibid. 73 representatives from the City Comcil, the Planning Commission, business and professional interests, the local school districts, and the public, evaluates the applications for conformance to the General Plan and the Environmental Design Plans. This involves rating each development pro- posal with respect to two categories of criteria: 1) Public Utilities andServicesandZ) QualityofDesignandContributiontoPublicWel- fare and Amenity. The former category rates the accessibility of fire stations, water systems, sanitary sewers, drainage facilities, streets anfldéschools. The latter category evaluatespthe‘ quality of theproposed site, architectural design and landscaping. It also evaluates the capa— city of the proposal to contribute to community wellbeing through parks , low and moderate incore housing, better roads, bicycle paths, and so forth. (For a couplets listing of the Egg in each of these categories see Appendix B). In rating the proposals, each of the" criteria in the first category (Utilities and Services) has a point value of 0 to 5. In the second category (Design and Public Welfare) each criteria has a value rangeofOtolO. Toreceiveapprovalbythe’RDEBaproposalmustearn at least 25 points in the first category and 50 points in the second. AllratingsarepublishedbytheRDEBandanappealsprocess isprovided for deve10pers who feel that their proposals were unfairly evaluated. Afterreceivingaratingallproposalsaresentatonetime to the City Council which grants permission to develop based on the build- ing quotas established for each section of the city and the ratings of projects proposed for each sector. Once granted permission to build, 74 adeveloperney'havehiSpennitrescindedifhefailstobeginconstnnc- tioninsixmonths. Inthiscasethemmberofmnits allocatedtothe cancelled project may be given to the next highest applicant or added to the quota for the ensuing year. For the year 1973-74 the city allowed 500 units to be built according to the following allocation: 125 multifamily and 125 single family units in the east side of Petaluma; 130 multifamily and 120 single family units in the west side of Petalnrna. The Results of Petaluma's Plan on Its ‘Develogrent AsintheRamapocase,uostpublishedaocomtsoftheeffects of the Petaluma plan on its growth have been favorable. One would sus- pect, however, that there has been dissatisfaction with developrent quotas, mainly anong developers and landownerswho have been denied per- mission to build. That nost of Petaluma's residents were satisfied with tlneRDc‘owasdotonstratedinapublic referenduminwhich 85 peroentof thevotersenanessedapprovalofthesystem. The Residential Development Control Systenloperated in Peter luma for two years before the construction industry filed suit to stop it. During that time "the system operated effectivelyto achieve desired oonmnitygoals. Oonstnnctionwasoccurringinabalancedmamerbeueen sectorsofthecity, rousingtypeswerebeginningtoachievebalance among the sectors, and a sense of comnunity was generated within Petaluma.lS According to Dennis Boehlje, Petaluma Planning Director, 15. Gray, 9p. cit., p. 153. 75 "requests for building permits and the population growthratebothhavebeencutinhalf; schoolshave returned to single sessions , and building activity no longer exceeds water and sewer capacity. "15 ' School attendancedroppednmderthesystonandfewerresidoncesare being built. In 1973, for example, less than .350 dwelling units were built although soo building permits were allotted.” Despite the construction declirne, "Manynewrealestate firmshavebeenprospering in Petaluma and the appreciation rate on housing is approximately the sane as that of the surrounding neighborhood", according to Frank Gray , former Director of the Department of Community Develop'rennt.l8 City officials are now claiming that "Petaluma isn't turning away all rnew»7cone.rs."l9 In 1975 the city had a population of 30,000 and with a future improved water supply expected to reach 75,000 or 80,000 by1990. Clean industrywasalsobeing soughttokeeppacewithpopula- tion growth. In the following chapter the major constitutional issues which arose in the litigation against the Petaluma plan will be discussed. Although the plaintiffs challenged many aspects of the plan, the court opinions focused ". primarily on the right to travel and the due process issues . Violations of equal rights were considered only implicitly as they related to the forner issues. 16. "Petaluma Wins on Growth Control", Planning, the ASPO Magazine, Volume 42, No. 4 (May, 1976), P. 6. l7. Sylvia Iewis, "The Jury's Out on Growth Control, "‘Planning, the ASPO Magazine, Volume 41, No. 1 (January, 1975), p. 8. 18. Gray, op. cit., p. 158. 19. Iewis, op. cit., p. 8. Chapter VI Legal and Constitutional Issues of the Petaluma Case In Construction Industry Association of Sonona County v. The City of Petaluma the constitutionality of the Petaluma plan was challenged by the San Francisco, Peninsula, We} Erpire Building Association; the Construction Industry Association and Land Investors Research. The case was first heardin the United States District Court for the Northern District of California where the plan was de- clared unconstitutional in an April 26, 1974 decision. This decision was appealed and reheard in the United States Court of Appeals, Ninth Circuit. An August 13, 1975 decision found the plan to be constitu- tional and valid, thus reversing the lower court decision. An appeal to the United States Supreme court was deniedon February 23, 1976, thus allowing the Court of Appeal's decision to stand. The plaintiffs in the Petaluma case charged that the resi- dential development control system violated the Constitutionally guaranteed rights of due process, equal protection and travel and that it also interfered with interstate comerce.1 In the reminder l. Attorneys for Appellants (City of Petaluma) , "The Petaluma De- cision: On Appeal to the Ninth Circuit", in Management and Control of £3er - Issues-Teouniqnnes-Problonns-Trernds , Volume II , Ran—dal— W. Scott, ed. (Washington, D.C.: the Urban Land Institute, 1975) p. 160. A violation of privileges arnd immunities was also charged. 76 77 of this chapter the due process, equal protection and right to travel arguments of the case are discussed. Unless otherwise indicated, the court opinions expressed will be those of the U.S. Court of Appeals, Ninth, Circuit,_w_hich rendered the final decision on the case. DueProcess As discussed in Chapter IV, violations of due process is the central charge brouglnt against most development timing and re- strictive zoning schemes . 2 To establish that a plan or regulation violates the due process clause of the 14th Amendment to the U.S. Constitution it most usually be shown that: 1) its exercise is not legitimately granted to the municipality by the state enabling legisla- tion, or 2) it does not fall within the "police power" and therefore does not protect the health, safety, morals or general welfare of the community, or 3) the regulation is arbitrary and unreasonable. Unlike the Ramapo case, the plaintiffs in the Petaluma casedidnotchargethattheplanwastheenerciseofapowernot legitimately granted to the municipality. Neither was it charged that the Petaluna zoning ordinance wennt beyond the scope of the police power. In the court proceedings, therefore, it was assured that the enactment of the plan was the exercise of a police power legitimately granted. This is illustrated in the Court of Appeal's description of Petaluma as "a local entity (exercising) r in its own self-interest, 2. SeeCl'napterIVAofthisthesis fortherationaleusedincharging due process violations in development timing cases. 78 police power lawfully delegated to it by (the) state."3 The plan it- self was referred to as a "...reasonable exercise of city's police power."4 Instead of focusing on the "delegation of authority" and "police power" arguments, the plaintiffs in the Petaluma case charged that the Petaluma plan violated due process rights by being unreasonable and arbitrary.5 The original intent of the plan, "to protect its (Petaluma's) small town character and surrounding open space" and to avoid rapid and uncontrolled growth ,6 was considered an unreasonable rationale for a plan that significantly limited the entrance of newcorers into the ormmunity. This charge was upheld in the U.S. District Court which quoted the following case precedent: “There is no doubt that many of the residents of this area are highly desirous of keeping it the way it is, preferring, quite naturally, to look out - uponthelarndinitsnaturalstateratlnerthanon otherhores. Thesedesires, however, donotriseto the level of public welfare. This is purely a matter of private desire which zoning regulations may not 3. United States Court of Appeals, Ninth Circuit, Case Decision, "Construction Industry Association of Sonona County v. The City of Petaluma", 522 Federal Reporter, 2d Series (August, 1975) , p. 899. ' 4. mid. 5. Herbert M. Franklin, "Legal Dimensions to Controlling Urban Growth", in Managenent and Control of Growth, . cit., p. 225 and United States Court of Appeals, op. cit., p. 90 . 6. United States Court of Appeals, op. cit., p. 899. 79 be employed to effectuate."7 ChnappealtotheCourtoprpeals, theoppositeviewwas taken. The majority opinion held that "(t)he concept of the public welfare is broad and inclusive" , representing spiritual and aesthetic values as well as physical and monetary ones.8 The legislature has the authority under the police power, the court continued, to determine that the community be "beautiful as well as healthy, spacious as well 3 as clean, wellébalanced as well as carefully patrolled."9 <5 T'tneCourtoprpealscitedtlnerecentBelleTerreandIcs Altos Hills court decisions which together held that the preservation of quiet neighborhoods and rural environments are legitimate governmental interests falling within the concept of the public welfare.10 The zoning poer, these decisions affirmed, is extremely broad and may be used to restrict uncontrolled growth and to make a cormunity attractive to families. Such goals were considered legitimate zoning functions for pronotingthegeneralwelfareevenifinpursuingthensotepersons are excluded from residing in the community. Finding the Petaluma plan far less restrictive and exclusionary than either the Belle Terre or 105 Altos Hills ordinances, the Court of Appeals judged the plan to fall within the rules establislned in the cited cases. The majority 7. United States District Court, N.D. California, "Petaluma: The Case Decision", in Management and Control of Growth, op. cit., p. 142. 8. United States Court of Appeals, 9p. cit., p. 906. 9. Ibid. 10. Ibid., pp. 907-908. 80 opinion therefore concluded 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. "11 Other nmreasonable provisions of the Petaluma plan, the plaintiffs contended, were the annual 500 unit building permit quota for developments of five or more units and the urban extension line. The building permit quota, it was argued, "limited new housing units to approximately one-third to one-half of the demographic and market demand of the 1970-1971 period."12 The urban extension line and den- sity limitations within it, even in the absence of the develognent quota, were found to "set a maximum population of the city at approxi- mately 55,000 as against the 1962 projection of 77,000 by 1985. Such a limitation (was held to be) a substan- tial interference with demographic and market demand for housing and the immigration of new residents . "13 The plaintiffs further charged that Petaluma officials had unreasonably contracted with the Sonoma County Water Agency for only enough water to serve a p0pulation of 55,000 through 1990. 14 The City had, it was argued, "selected an arbitrary growth rate, in defiance of ll. 12. 13. 14. United States Court of Appeals, op. cit., p. 909. United States District Court, op. cit., p. 137. Ibid. Also see footnote #20 for a discussion 'of the projected population controversy. United States District Court, op. cit., p. 137. 81 demographics, and then tailored its public facilities to meet only the smaller burden. "15 The city water contract was seen as an atterpt to justify the building permit quota on the grounds that available pub- lic services could not support a larger population . In replying to these charges of unreasonableness , the court addressed the plaintiff '5 central argument - the plan's effect on demo- graphics and market demand . Although contending that the development quota and urban extension line interfered with "demographics and the market demand for housing" , the plaintiffs never defined the latter terms.16 Definition was elusive, the court implied, Since the 500 unit quota did not apply to all housing, but only to projects of five or more units. Because the plaintiffs " failed to introduce any evidence whatsoever as to the number of exenpt units expected to be built during the five-year period, the effect of the 500 develogrent— unit limitation on the natural growth in housing (re- mained) uncertain. "17 The majority opinion thus argued that the total market demand for housing in Petaluta could be estimated based on pre-develop— - ment quota building statistics, but that the plan' 5 ejfegt on the market demand could not and had not been estimated. The court did assume, however, that the 500 unit quota was on some indeterminate scale "below 15. Malcolm A. Misuraca, "Petaluma vs. The T.J. Hooper: Must the Sub- urbs be Seaworthy?" , in Management and Control of Growth, op. cit. , p. 195. 16. Attorneys for Appellants (City of Petaluma) , Q. cit., p. 162. 17. United States Court of Appeals, op. cit., p. 902. 82 the reasonably anticipated market demand for such units."18 ‘Without data to establish that the quota unreasonably held supply below demand, the court rejected the plaintiffs' charge that the plan was unreasonable.19 The court did not specifically reply to the plaintiffs' charge that the City had contracted for only enough water to serve a population of 55,000 through 1990. This was a prudent.cnndssion since the quantity of water available to the city, the capacity of city sewage facilities and the projected city population were all subjects of un- 20 resolved controversies. The court, nonetheless, considered the 18. United States Court of Appeals, op. cit., p. 902. 19. It should be noted that the defendants presented data establishing that the 500 unit development quota was approximately the average annual rate for the issuance of building permits in Petaluma be- tween 1967 and 1971. The accelerated average between 1970 and 1971, precipitating the growth control plan, was 1,000 units per year. Thus the 500 unit quota had a reasonable basis and was not arbitrary according to city attorneys. See Attorneys for Appellants (City of Petaluma), op. cit., p. 172. 20. Petaluma officials had projected a maximum population of 55,000 for the city with residential development control by 1985 using higher densities than the city had experienced prior to the plan. The projected city population of 77,000 by 1985 claimed by the plaintiffs was erroneous. The 77,000 figure referred to the Petaluma area, covering 94 square miles. The city itself covered only 7.7 square miles. For a discussion of the water and sewer capacity arguments see Uhited States District Court, pp. cit., pp. 137-138; Attorneys for Appellants (City of Petaluma), pp. cit., p. 163; and Frank B. Gray, "The City of Petaluma: Residential Development Control", in.management and Control of Growth, pp. cit., p. 155. 83 discussion of water and sewage facilities unnecessary. The majority opinion viewed the plan as a reasonable program for achieving reason- able goals, i.e., the protection of a small town character and the control of rapid growth. Consideration of water and sewer capacities for a current or projected population was thus unnecessary and not germain to establishing the reasonableness of the plan.21 Equal Protection Violations of equal protection were charged by the plaintiffs in the Petaluma case but were not replied to by either the District Court or the Court of Appeals. The former invalidated the plan as a violation of the constitutional right to travel and therefore did not consider it necessary to examine the other violations charged by the plaintiffs. The Court of Appeals found the plan to be a "reason- able and legitimate exercise of the police power"22 after disposing of the "right to tra ", "due process" and "interstate commerce" charges. The court did not consider it necessary to examine the "equal protection" 21. See United States Court of Appeals, op. cit., p. 902, footnote #5. The City had, in fact, contracted for enough water "until 1984 or 1985 at a growth rate 33% greater than the growth rate contemplated by the plan", according to City attorneys (See Attorneys for Appellants (City of Petaluma) , op. cit. , p. 163.) The plan contemplated a growth rate of approxnmately 500 housing units per year. At this rate the city population would be 55,000 in approximately 1990 . Finding the growth rate contemplated in the plan reasonable , the court would probably have found the water plan also reasonable if it had chosen to examine the issue. 22. United States Court of Appeals, op. cit., p. 909. 8“. charge. In the Court of Appeals decision, most references to the unequal treatment of persons related to the alleged loss of housing quality and opportunities for persons in the regional housing market seeking housing in Petaluma. Discrimination against persons was there- fore addressed as a violation of the right to travel. The Right to Travel The central charge made by the plaintiffs in the Petaluma case was that the plan violated the constitutional right to travel. This was also the violation for which the District Court found the plan to be unconstitutional and invalid. "The express purpose and the intended and actual effects of the 'Petaluma Plan'", the District Court ruled, "have been to exclude substantial numbers of people who would otherwise have elected to>immdgrate into the city."23 Since the freedom to travel, including "the right to enter and live in any state or:municipality"24 has been upheld by the Supreme Court as a basic constitutional right, the District Court concluded that in the Petaluma plan, "the City has violated the people's right to travel."25 In judging the plan to be exclusionary, the District Court considered "the potential effects that the (plan) would have if it were 23. United States District Court, op. cit., p. 142. 24. Ibid., p. 141. 25. Ibid., p. 142. 85 proliferated throughout the region itself."26 Since the court considered the San Francisco metropolitan region to be a generally self-contained and unitary housing market, excluding persons frcmncue suburb would cause them.to go to another suburb for housing, it.was argued. The latter suburb would then absorb more than its share of regional resi- dents, eventually causing it to adopt exclusionary methods of its own. Heusing prices would then rise as the regional supply became limited, forcing people to live in substandard units because affordable replace— ment units would not be available. "The aggregated effect of a proliferation of the 'Petaluma Plan' throughout the San Francisco region would be a decline in regional housing stock quality, a loss of the mobility of current and prospective residents and a deterioration in the quality and choice of housing available to income earners with real incomes of $14,000 per year or less", the District Court concluded.27 The majority opinion then instructed Petaluma officials to choose "less drastic means", such as expanding public facilities, to accomodate growth pressures. On appeal to the Court of Appeals, the majority Opinion quickly dismissed the "right to travel" argument on several grounds. It first maintained, as the attorneys for the City had argued, that the appellees did not have standing to raise the "right to travel" argument. Only those persons who have personally suffered some threatened or ac- tual injury resulting from illegal action may be granted standing to sue; a party may not sue in the interest of others who have suffered or 26. United States District Court, op. cit., p. 139. 27. Ibid., p. 141. 86 may suffer injury.28 Since neither the construction industry associa- tion nor the landowrners bringing suit against Petaluma officials per- sonally had their mobility impaired by the plan, they did not have standing to say that the plan violated their right to travel. Arguing that the plan violated the right to travel of third parties (potential residents) was not sufficient to maintain the suit, the Court of Appeals ruled. To insure that new litigation was not brought against Peta- luma officials by parties actually denied the right to travel under the plan, the court eliminated the issue from further consideration: "Although due to appellees ' lack of standing we do not reach today the right to travel issue", the court stated in a footnote to the majority opinion, "we note that the Petaluma Plan is not aimed at trans- ients, nor does it penalize those who have recently exercised their right to travel."29 Thus, the court implied, the plan is "no infringement of anyone's right to travel."30 TheCourtoprpealsalsostruckdowntheargumentsthatthe plan was exclusionary and would cause a decline in regional housing supply and quality. 28. United States Court of Appeals, 9p. cit., pp. 898-899; Randall W. Scott, "The Petalura Decision: Another Sign That Federal Courts Don't Want To Get Into land Use", AIP Newsletter, Volume 10, No. 10 (October, 1975) , p. 8; and Attorneys for Appellants (City of Peta- luma), 9p. cit., p. 166. 29. United States Court of Appeals, Q. cit., p. 907, footnote #13. 30. Ibid., pp. 906-907, footnote #13. 8? "If...the Plan were considered by itself and with respect to Petaluma only, there is no evidence to suggest that there would be a deterioration in the quality and Choice of housing available there to persons in the lower and.mdddle income brackets" 31 the:majorityuopinion—stated. "Actually", the opinion continued, "the Plan increasethhe availability of multi-family units (owner—ocoupied and rental units) and low-income units which.were rarely constructed in the pre-Plan days."32 The plan, in addition to being'ipclusionary if considered for Petaluma only, increased the overall supply of housing by providing for construction at higher densities than in the pro-plan days. The majority opinion chose to consider the effects of the plan on Petalura only. In doing so, the court deferred to the state legislature's implicit policy that local zoning ordinances should address .local problems. The court did admit, however, that unilateral land.use decisions by one locality affect the needs and resources of an entire region.33 But since the state legislature had not officially recognized the regional impact of local decisions and had provided no mechanisms for regulating or controlling such impact, the federal court hesitated to force localities to adopt regional viewpoints. The court's conservatism was expressed in its.conc1usion that 31. United States court of Appeals, pp. cit., p. 902, 32. Ibid. 33. Ibid., p. 908. 88 "If the present system of delegated zoning power does not effectively serve the state interest in fur- thering the general welfare of the region or entire state, it is the state legislature's and not the federal court's role to intervene and adjust the system. .. (T)he federal court is not a super zoning boardandshouldnotbecalledontomarkthepoint at which legitimate local interests in prorating the welfare of the ocmmgity are outweighed by legitimate regional interests. " 'IhischapterconcludestheanalysesoftheRamapoandPeta- lmgrmthcmtrolplansandtheconstitutionalissueswhidmarosein . the legal challenges of these plans.’ In the following chapter the les- Asons tobe learnedbyplanners, city officials and the public franthe Ramapo and Petaluma experiences are discussed. Based on these lessons, conclusions may be drawn regarding the future of the grwth control movement in the U.S. 34. United States Court of Appeals, op. cit., p. 908, CIIAP'IER VII The Lessons of Ramapo and Petaluma Inportant lessonscanbelearnedfromtheexperiences of Ramapo and Petalmta on developing a growth control system capable of withstanding legal assault. Perhaps the nost important lesson is: "Plan Ahead" . In both the Ranapo and Petaluma litigation careful prior planning provided the ultilrate justification for the plans in general and for many challenged provisions in particular. Both the Ramapo and Peta- luma planning processes documented the effects of rapid growth on the respective commmity ' s housing stock, envirorment, public facilities and services, and fiscal capacity.1 'Ihese reports were either followed or acconpanied by statements of goals and objectives for cammity de- velopment. Based on these efforts each community than formulated inno- vative planning techniques to alleviate existing problems and to ac- complish the stated goals. A cause and effect relationship was thus clearly established between existing and potential problans and pro- posed Planning tedmiques. Because of prior planning in the Ramapo case, the Court of Appeals was able to conclude that the plan was "a reasonable attenpt to provide for the sequential, orderly development of land in conjunction 1. See Chapters III and IV. 89 90 with the needs of the ccmmmity."2 The court also observed that the restrictions placed on individuals and land use by the plan "conform (ed) to the community's considered land use policies as expressed in its comprehensive plan. . . (and were therefore) the product of fores ighted plan- ning calculated to prmote the welfare of the town- ship. "3 In a similar manner, the careful consideration given to problems and their solution in the Petaluma plan allowed the court to find the plan reasonable and not arbitrary. Since the development quota system was accomplishing many of the plan's objectives in the years before being challenged, the argument that the plan pronoted the general welfare of the community was strengthened. Also, because of the rigorous public process which resulted in the plan' s stated objectives, the court was able to reject a central charge made by the plaintiffs - that the plan was "designed solely to insulate Petaluma from the urban complex in which it (fomd) itself. "4 An orderly process of problem statenent, goal forma- tion and technique development was thus critical in upholding the consti- tutionality of both the Ramapo and Petaluma plans. Another important lesson to be learned from the Ramapo 2. Court of Appeals of New York, "Ramapo: 'Ihe Case Decision", in Manag- ment and Control of Growth - Issues-IEchniques—Problene-Trends, Volume II, Randall W. Scott, ed. (Washington, D.C.: The Urban Land Institute, 1975), pp. 21-22. 3. Ibid., p. 21. 4. United States Court of Appeals, Ninth Circuit, Case Decision, "Con- struction Industry Association of Sonoma County v. The City of Peta- luma", 522 Federal Reporter, 2d Series (August, 1975). P. 906. 91 andPetallmacasesinvolvesthechangingroleofthecourtsinland use litigation. Traditionally, local legislative mandates such as zoning ordinances were given a "preemption of validity", that is, treywerepresmtedtobevalidsolongastheyfellwitlfintlegeneraldr scope of powers delegated in the state enabling legislation-5 corms- quently, zoning provisions were usually upheld when challenged if their validity was fairly debatable. The courts struck down zoning ordi- nances only when clear abuses of. legislative discretion were apparent.6 'me "presunption of validity" is based on the separation of powersingoverment. mlderthisconceptitisthefmctionofthe legislature to formulate policies and to enact laws to inplatent thosepolicies. 'Ihecourts' nainfmmctionistodeterminewhetheror not the laws have been properly applied, rather than to challenge the substance of the laws. IntheRamapoandPetallmecasoeandinotherrecentland use litigation the traditional role of the courts is changing. (hurts aremwslnvingagreaterpropensitytolookbehindtheveilofpre— suned validity to determine if the intent of the enabling legislation 5. Edward N. Reiner, "Traditional Zoning: Precursor to Managed Growth", in Management and Control of Growth - Issues-Iecmliques-Problans- Trends, Volume I, Randall W. Scott, ed. (Washington, D.C.: 'Ihe Urban Land Institute, 1975), P. 217; and Randall W. Scott, Manag- rrent and Control of Growth, Volume I, g. cit., p. 16. 6. Scott, Managanent and Control of Gravth, Volume I, 92. cit., p. 16. 92 has been realized in the local ordinance.7 Judicial opinions in land usecasesnowfrequentlycmnentontheinadequacies of local zoning ordinances as well as state enabling legislation to pmtote the general welfare, especially the regional welfare.8 Although the courts are pointing out the inadequacies of ordinances to acconplish their stated objectives, judicial opinion doesnotusmllygobeyondobservation. 'Ihecourts arestill umrilling, except in rare circumstances, to. outline the kinds of affix-native actionwhichmstbemldertakentocorrectthe shortconings ofstate landusepoliciesandlocal zoningordinances.9 'Ihislattertaskis being left to the legislative forum where open debate can determine an acceptable balance of public and private rights . 7. Reiner, op. cit., p. 220. 8. Ibid., pp. 219-220. Also see Norman Williams Jr., "Recent Develop- ments in Exclusionary Zoning - 'Ihe fibunt laurel Case", in Addendun - to Arrerican Planning Iaw: land Use and the Police_Pcwer, Volume III (Chicago, Illinois: Callaghan and Caxpany, 1975), and Jerure G. Rose, "The courts and the Balanced Cotmnlnity: Recent Trends in New Jersey Zoning Iaw", Journal of the AIP, Volume 39, No. 4 (July, 1973). PP. 265-276. ' 9. Inonerarecase,aCourtmasterwasappointedbyalmercourt in the Petaluna litigation to ensure that affirmative action was undertaken to protect the public welfare. 'Ihis action was over- turnedbyahighercourt. SeeRose, "‘nleCour-tsarritheBalanced Catmunity", op. cit., p. 274. 93 Inrefusingtooutline improvedforns oflandusecontrol, the courts are denonstrating their reluctance to perform a legislative function. 'Ihis attitude is well denonstrated in both the Ramapo and Petalune litigation. In both cases, the courts ormented on the need for a regional perspective in determining whether an ordinance pronotes the general welfare. But the existing state enabling legislation in both New York and California failed to provide for regional perspec- tives in local zoning ordinances. Each court therefore limited its scrutiny of the respective plan to its effects on the jurisdiction enacting the ordinance. 'Ihe Court of Appeals in the Petaluma case surmarized this rationale by stating that "If the present systan of delegated zoning power does not effectively serve the state interest in fur- thering the general welfare of the region or entire state, it is the state legislature's and not the federal courts' role to intervene and adjust the system."10 ___\ F < *AnotherTnportant lesson to be learned from the Ranapo and’Petaluma litigation is that differences exist anong the state courtsystans, andbetweenthefederalandstatecourtsystensin ruling on challenges to land use controls. 'Ihe Ramapo case was heardintheNavYorkStatecourtswhilethePetallmacasewasheard inthefederalcourts. 'nlelertofArpealsdecisimintteRanapo casefocusedonwhetl'lerornotdevelogtenttimingwasaproper zoning function under the existing state enabling legislation. In the Peta- luma case the majority opinion of the Court of Appeals dealt primarily with the rights of individuals to use their land or to abide in 10. United States Court of Appeals, op. cit., p. 908. 91+ Petaluma and the meaning of "the public welfare". 'Jhe New York court X appeared nore concerned with the scope of state delegated powers; j the federal court with the rights of individuals. AsJeromelbseandothershavecarefullypointedout,one state any invalidate a zoning provision upheld in similar form by another state. Thus in Ianarch v. myor of Englewood the New Jersey statecourtsfomdaoneyearfreezeondevelopmttobeanmlcon- stitutional "te'uporary taking" of property.11 'Ihe Ramapo plan, ontheotherhand, preventedthedevelopnentofsmetomlandsfor as long as 18 years, the period of the town's anticipated full develop- ment. 'nlis did not constitute taking, according to the New York courts, since the 18 year restrictions on property rights were only 136190er- Where inconsistencies occur anong state court systems in land use case decisions, the United States Supreme Court is frequently reluctant to intervene and establish general rules. 'Ihis is especially tnleinregardtocmtroversialissuessuchasdevelopnmttiming I where the points of contention are not yet clearly defined. In re- fusingtoreheareithertheRanapoorPetalunacase, theSuprane Cburt nay have been implying that further debate and experinentaticn are needed before the issues of urban growth management can be resolved. As suggested above, the need for regional perspectives ll. Rose, "'Ihe Courts and the Balanced Curmunity", op. cit., p. 273. 95 in land use controls is another inportant lesson to be gleaned frun the Ramapo and Petaluma litigation. In the Ranapo case, the Court of Appeals ' dissenting opinion found the plan unsound because it failed to consider "the social and economic ramifications for the locality, region, and state. "12 'lhe majority opinion also condemed the lack of state and regional planning in New York. "Undoubtedly". it continued, \/' " current zoning enabling legislation is burdened by the largely antiquated notion. . .that the regu- lation of land use and development is uniquely a functionoflocal goverment-thatthepublic in- terest of the State is exhausted once its political subdivisions have been delegated the authority to zone . " 'Ihe U.S. District Court in the Petalma case also con- demedthelackofregionalorstateperspectiveinthePetalmaplan. "'Ihe aggregated effect of a proliferation of the ' Petaluma Plan ' throughout the San Francisco region", the najority opinion warned, \e/ "would be a decline in regional housing stock quality, a loss of the nobility of current and pro- spective residents and a deterioration in the quality and choice of housing available to incone earnefi with real incomes of $14,000 per year or less." 12. 13. 14. Court of Appeals of New York, pp. cit., p. 29. Court of Appeals of New York, 9. cit., p. 18. United States District Court, N.D. California, "Petaluua: 'Ihe Case Decision", in Management and Control of Growth, Volume II, op. cit., p. 141. 96 InboththeRamapoandPetallmacasesitwas fearedthat the local solution would become a "regional dilemra", to use Randall Scott's tennimlogy.15 Residents excluded from one locality be- cause of the restricted housing supply would be forced to take up residenceinanotherpartoftheregion. 'nliswouldcausethelatter area to amorb nore than its "fair share" of regional residents. Housing prices would then rise throughout the region, causing sane residents to' remain in substandard units because affordable replace- ments would not be available. Since at the macro, or regional (or State or National, depending on the area being examined), scale growthwilloccuras longasthepopulationcontinues toexpand, excluding residents from one locality (the micro scale) ultimately creates problems elsewhere. 'lhe final‘ majority opinions in the Petaluma and Ranapo cases recognized the potential regional dilemmas of local growth control measures but did not invalidate the respective ordinances forfailingtorespondtothem. Othercourts, however, havenot been as passive. In New Jersey, for example, the Madison {township ZoningOrdinancewasdeclaredinvalidinl971byaSuperiorlert for failing to prurote a balanced community regimally.16 ‘Ihis ruling was followed in 1975 by the landmrk Mount laurel decision which established that every camunity nust nake housing opportunities 15. Scott, Management and Control of Growth, Volune I, pp. cit., p. 12. 16. lbse, "'Ihe Courts and the Balanced Commmity," Q. cit., p. 272. 97 realistically possible for a fair share of all persons regionally who may desire to live there, including low and noderate income persons.17 'lhese rulings established a statewide trend of declaring local ordinances invalid if they failed to provide for a fair share of regional housing needs. Given the trends in recent growth control litigation, rmcanplamersanleoalgovermneltspreparethereelvestoneet the challenges of growth nore effectively? Several authors have suggested that local officials learn to control "the principle causeoflocalgrowth-thelocal econcmy."18 'Ihistaskrequires the realization that economic growth benefits the commnity and its residents only if that "growth corresponds to precise carmunity needs."19 AsexplainedinC’hapterI, forsalecamtmitiesnoecornnic growthisbeneficial; forothersonlycertaintypesofeconanic growthwillimprovethelocalstandardofliving. Perhaps the most effective stance for a community to assume in controlling ecorrmio growth is that of the nonopolist — the nest powerful economic figure. Instead of acceptingvirtually \ f 17. Williams, Jr., "Recent Develcpnents in mclusionary Zoning - ' 'Ihe Mount laurel Case", op. cit., p. 5. 18. Earl Finkler, William J. Toner and Frank J. Popper, Urban Nongrowth; Qty Planning for People (New York: Praeger Pub- lishers, 1376), P. 82. Also see Earl Finkler and David L. Peterson, Nongrowth Planning Strategies - 'Ihe Developing Power of Towns, Cities, and Region_s_ (New York: Praeger Publishers, 1974) and Norman Williams, Jr., Anerican Planning Law: Iand Use and the Police Pow_e_r_', Volume V (Chicago, Illinois: Cal- laghan and Coupany, 1975) . l9. Finkler, et a1., Urban Nongrowth, op. cit., p. 93. 98 any development proposed, calamities , through official policies and regulations, should learn to say "no" to those proposals which would notenhancethegeneralwelfare. Asnonopolists, cauumitiescould —'.-~.- .0 extract higher prices fron sate potential developers than others. 'lhesepricesmightconeinthefomofrequiredjobtrainingpro- grams, user fees, pronises to hire locals first, environmental pro- tection devices, oonditional zoning and so forth. Having to reject some development, William toner points out, implies that you are in denand and ultimately creates a higher quality environlrent.20 It also keeps camumity options open. , Manyauthorsbelievethatbasicchangesareneededinthe urban fiscal structure before nonopolistic managerent techniques will inprove local standards of living. 'lhe most frequently cited areainneedof fiscalreformistherealpropertytaxsysten. Cur- rently, realpropertytaxesareanajor sourceoflocalgovernmelt revenue. Since calmercial and industrial landis taxednore heavily than residential land, local governments frequently overzone for camerceandindustryinanattetpttoincreasepublictreasuries. As a result, the supply of nonresidential sites often exceeds detand, causing unit values to decline. Marginal commercial and industrial finnsarethenattractedtothecommitybylowlandprices. With 20. Finkler and Peterson, Nongrowth Planning Strategies, 2. cit., p. nociii. 99 these firms core economic instability and a reluctance to invest in architectural amenities, site beautification, employee benefits, andotherprogramsthatrequiretheecpenditureoffmnds. Inaddi- tion, overzoning for comerce and industry often leaves an under supply of land for housing, parks, schools, and other public ame- nities. Fiscal zoning, or attetpting to increase public revenues by overzoning for nonresidential uses, seldom enhances the well- being of a community when social costs are considered. 'Ihere are, however, few alternatives open to local governments for expanding the tax base. Because fiscal reform is a complicated and emotive issue, experimentation with new approaches seldom occurs . 'Jhe experiences of Ramapo, Petaluma and other communities experimenting with growth controls detonstrate that urban growth management is a cotplec task. It requires that planners and admini- strators allocate scarce urban resources in a manner that elhances thegeneralwellbeingofthecommmityandits residents. Unfor- tunately, there are no easy formulas for determining what a commmity's needs are, howconflicts among thoseneeds canbe resolved, andwhat levels of resource allocation will produce the optimum cormmity benefit. . Perhaps the most effective course of action in the diffi- cult task of growth managetentis to strive for community balance. . 'lheconceptofabalancedcotmnnity, asJeroreRoseobserves, is 100 evolvingintheNewJerseycourtsasastandardagainstwhichgrowth management programs are being measured. 21 'Do pass the judicial tests of balance, planning programs must provide for l) socioeconomic balance (balance among housing types and income and racial groups): 2) fiscalbalance (balancebetween revenues fronratablesandthe municipal costs of development): 3) ecological balance; 4) regional balance (balanceregionallyamonglousingtypes, inconeandracial groups, and landuses): and 5).terporalbalance (providing forgrowth in increlents that will not outstrip public resources) .22 In planning for balanced communities, planners and public officials should not limit themselves to existing design and manage- ment techniques. 'Ihe public, state and local legislatures and the courts are realizing that traditional growth controls often fail to prevent the adverse effects of rapid development. 'Ihere is con- sequently an increasing willingness to accept innovative and imagina- tivenewforms ofgrowthmanagerentinthehopesofpreservingand increasing the amenities of urban living. 'Ihewords ofanautl'orof early zoning lawandaninno- vatorinhisowmtimeseemappropriatetousl'erinwhatmaybeanew erainlandusecontrols. AlfredBettman, thegrandoldmanof 21. Rnse, "'Ihe Courts and the Balanced Community, op. cit. 22. Ibid., p. 265. i l ____,4___ -_ fir __ _.________ 101 planning and the law, advised in 1946:23 "Be sure you are right, then go ahead. There is nothing in the nature of American constitutional law which should produce timidity or the palsying of effort by fear of constitutional difficulties. The American Constitution is sufficiently beneficient and wide-armed to receive within its protection whatever is morally and intellectually justifiable and really needed for the public welfare." (original emphasis). 23. Stephen Sussna, land Use Control. .Jbre Effectile Approaches (Washington, D.C.: The Urban Landlnstitute, 1970): p. 39. APPENDICES APPENDIX A Proposed Amendments to Town of Ramapo Building Zone Amended Ordinance of 19691 l. Amend 46-3, Definitions, by adding after "Day Camp" and before "Dog Kennel" the following: Development Use, Residential 'Iheerectionorconstructionofdwellingsonanyvacant (plots, lots, or parcels of land. It shall not include the alteration, repair , demolition, or maintenance of existing dwellings or construction or erection of structures accessory to dwellings. Anypersonactinginsuchmannerastocorewithinthe definition of developtent use, residential, shall be deemed to be en- gaged in residential developrent which shall be a separate use classi- fication under this ordinance and subject to the requirement of obtaining a specail permit from the Town Board. Developer, Residential Any person (a) who, having in interest in land, causes it directly or indirectly to be used for residential development, or (b) who directly or indirectly sells, leases, or develops or offers to sell, lease, or develop, or advertises for sale, lease or developnent any lot, plot, parcel, site, unit or interest for a residential develogrent use, or (c) who engages directly or indirectly or through an agent in the business or occupation of selling, leasing, developing, or offering for sale, lease, or development, a residential development use or any 1. Taken from Israel Stollman, "Ramapo: An Editorial and the Ordinance as Amended", in Management and Control of Growth - Issues-Tectmi - Problems-Trends, Vol. II, Randall W. Scott, ed. (Washington, D.C.: The Urban Land Institute, 1975) pp. 5-l3. 102 103 lot, plot, parcel , site unit, or interest for a residential develqment use, and (d) who is directly or indirectly controlled by, or under direction or indirect comron control with, any of the foregoing shall be M to be engaged in develoment use, residential. Development, Agent Anypersonwhorepresents, oractsfororonbehalfofa residential developer, in selling, leasing, or developing, or offering to sell, lease, or develop any interest, lot, plot, parcel, site or . unit for residential develogrent use, except an attorney at law wl'ose representation of another person consists solely of rendering legal services. 2. Amend 46—3, Definitions, by adding after "Cenp"and before "Cellar" the following: Capital Budget 'Ihecapital improvetentprogramadcptedbythe'lownBoard pursuant to 99-9 of the General Municipal Law for a six year period of effectiveness for the development of the unincorporated area of the town in accord with the master plan and official map, establishing the order of priority for all capital projects as shown on the official map and master plan in order to provide for maximum orderly, adequate, and economical provisiol of transportation, water, sewerage , drainage, parks and recreation, schools, municipal facilities and structures, and other public requirerents. I Capital Plan The capital improvetent program adopted by resolution of the Town Board for the seventh through eighteenth year period of effectiveness , 101+ for the development of the unincorporated area of the Town in accord with the master plan and official map, which shall establish two general orders of priority, the seventh through twelfth year, and the thirteenth through eighteenth year, for all capital projects as slown on the offi- cialmapandmasterplaninordertoprovide formaximumorderly, ade- quate, and economical provision of transportation, water, sewerage, drainage, parks and recreation, shtools, municipal facilities and structures, and other public requirements. . 3. Delete from $46—9A, Table of General Use Regulations, PR- 80 Col. 2 "Uses Permitted By Right", Nos. 1 and 12 thereof as follows: "1. one-family detached residences with not more than one principal building on a plot", and "12. Residences subject to $281 'Iown law pursuant to pro- visions of density zoning resolution adopted by low Board." AndchangeNos. 2throughllrespectivelytoNos. lthroughlo respectively. ' 4. Delete from $46-9A, Table of General Use Regulations,R-15 Col.2"Uses Permitted by Right,"No.2 thereof as follows: "2. Ito-family residences." 5. Delete from $46-9A,Table of General Use Regulations,PO Col.2 "Uses Permitted by Right",No. 1 thereof as follows: "1. Same as RR—80 Nos. l,4,5,6,7,8,9,and 12" and Add to $46-9A Table of General Use Regulations, P0 Col.2 "Uses Permitted by Right", No.1, as follows: "1. Same as RR—80 Nos. 3,4,5,6,7,and 8." 6. Add to $46-9A,Table of General Use Regulations,RR-80, Col. 2A "Uses by Special Permit of the Town Board" tlne following: 105 "3. Che-family detached residences with not more than one principal building on a plot. (subject to $46-13.1) 4. Residences subject to $281 'Ibwn Law pursuant to the e “provisions ofthe density zoning resolutionadoptedby the Town Board .(subject to $46-13.l)" 7. Add to $46-9A, Table of General Use Regulations, R—lS and HO, Col.2A "Uses by Special Permit of the 'Down Board the follow- ing: The number "1" before the words "Sane as RR/BO"; and "2. 'IwO—family residences. (subject to $46-13.l)" 8. Add a new $46-13.1 to read as follows: $46-13.l. Special Permit Uses-mm Board Residential Develop- ment Use. A. General Considerations 'Ihe 'Ibwn of Ramapo has been experiencing unprecedented and rapid growth with respect to population, housing, econory, land development, and utilization of resources for the past decade. 'It'ans- portation, water, sewerage , schools , parks and recreation, drainage and other public facilities and requirenents have been and are being constructed to meet the needs of the 'Down's growing population, but the m has been unable to provide these services and facilities at a pace which will keep abreast of the ever-growing public need. Faced with the physical, social, and fiscal problems caused by the rapid and unprecedented growth, the Town of Ramapo has adopted a corprehensive master plan to guide its future development and has 106 adopted an official nap and a capital program so as to provide for the naximum orderly , adequate, and economical development of its future residential, comercial, industrial, and public land uses and cormunity facilities including transportation, water, sewerage, schools, parks and recreation, drainage, and other public facilities. In order to insure that these comprehensive and coordinated plans are not frustrated by disorganized, unplenned, and uncoordinated developuent which would create an undue burden and hardship on the ability of the community to translate these plans into reality, the following objectives are established as policy determinations of zoning and planning for the Town of Ranapo: 1. 'Do econonize on the costs of municipal facilities and services to carefully phase residential develogrent with efficient provision of public inprovements; . 2. To establish and maintain municipal control over the eventual character of development; 3. To establish and maintain a desirable degree of balance anong the various uses of the land; 4. 'Do establish and maintain essential quality of cormmity services and facilities. The Town, through its master plan, official map, zoning ordinance, subdivision regulations, capital program, and conplerentary planning programs, ordinances, laws, and regulations has mandated a program of continuing inprovements which is designed to insure complete availability of public facilities and services so that all land in the Town is capable of development in accord with proper 107 planning. ‘Ihe haphazard and uncoordinated development of land without the adequate provision of public services and facilities available will destroy the continuing implementation and successful adoption of the program. Residential development will be carefully phased so as to insure that all developable land will be accorded a present vested right to develop at sucln time as services arnd facilities are available. Residential land which has the necessary available muni- cipal facilities and services will be granted approval . Residential land which lacks the available facilities and services will be granted approval for development at such time as the facilities and services have been made available by the ongoing public improvement program or in which the residential developer agrees to furnish such facility .or improvenent in advance of the scheduled program for inprovenent of the public sector. 2 These regulations are adopted pursuant to the authority of the Constitution of the State of New York, the Statute of local Govern- ment, the Town Law, and the Municipal Hone Rule Law of the State of New York by providing for comprehensive planning and zoning for the government, protection, order, conduct, safety, health, and well beingofthepersonsandpropertyinthe'lomandconsistentwith the purposes set forth in Article 16 of the Town Law in facilitating the adequate provision of transportation , water, sewerage , schools , parks, drainage, municipal facilities and structures, and other public requirenents in order to encourage the most appropriate use of land throughout the Town as provided in the master plan, official map, 108 capital program, laws, ordinances and regulations, and other cotpre- hensive planning perfornned by the 'Ithn. B. Special Permit Required for Residential Development Use. ' ‘- (1) Prior to the issuance of any building permit, special. permit of the Board of Appeals, subdivision approval, or site plan approval of the Planning Board for residential development use, a residential developer or development agent shall be required to obtain aspecial permit fronthe'IownBoard. I (2) line provisions of this section shall not be appli- cable to subdivisions finally approved by the Planning Board and filed in the Rockland County Clerk's Office prior to the effective date of this section. C. Procedure for Special Permit (l) The residential developer or development agent shall be required to submit an application to the Administrative Assistant totheBoardsandCounissionsinsuchdetailasshallbesetforth inregulations establishedbythe'IownBoardofthe'IomofRanapo, including a nap showing the location of all land holdings of the applicant in the sane ownership in the innmediate vicinity and the extent of the land proposed for developnent. Said Administrative Assistant shall review the application with respect to all of the standards set forth in $46-13.1D as to the availability of municipal services and facilities and projected inprovements scheduled in the capital budget and capital plan of the Town. The Administrative Assis- tant may request reports from appropriate town , county, or municipal 109 agencies, boards, or officials as may be required. Within forty- five (45) days of the submission of the application, the Administrative Assistant shall report his findings in writing to the Town Board and the Town Clerk shall proceed to notice the application for public hearing at the first regular meeting of the'Town Board not less than two weeks after the submission of the written report. (2) The Town Board shall within thirty (30) days after conclusion of the public hearing render its decision. In the event of approval of the application without conditions the Town Board shall also render its determination as to the nunrber of residential dwel- lings that shall be permitted to be built pursuant to the requirenents of $46-13.1E. D. Standards for Issuance of Special Permit NospecialpermitshallbeissuedbytheTownBoardmnless the residential development has available fifteen (15) development points on the following scale of values: (1) Sewers (a) Public sewers available in RR-SO, districts.. ..... ......... 5 points (b) Package SewerPlants........ ........ ....3 points (c) Counnty approved septic systen in an RR-80 district .................. .......3 points (6) All others ............................. 0 points (2) Drainage Percentage of Required Drainage Capacity Available (at) 100% or nore .............. . ....... .....5 points (b) 90% to 99.9% ........................... 4 points 110 (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 (3) Improved Public Park or Recreation Facility Inclnrling 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 (4) State, County, or Town Major, Secondary or Collector Road(s) Improved with Curbs and Sidewalks (a) Direct Access .......................... 5 points . (b) Within 1/2 mile ........................ 3 points 0:) Within 1 mile .......................... 1 point (d) Further than 1 mile .................... 0 points (5) Fire House (a) Within 1 mile ....................... .. ..3 points, (b) Within 2 miles ......................... 1 point (c) leflner than 2 miles .................... 0 points .“.All distances shall be omputed from the proposed location of each separate lot or plot capable of being improved with a residential dwelling and not from the boundaries of the entire parcel. The Town Board shall issue the special permit specifying the number of dwelling units that meet the standards set forth herein. E. Vested Approvals and Relief (1) Vested Approval of Special Permit (a) The Tom Board shall issue an approval of the applica- tion for special permit vesting a present right for the residential developer to proceed with residential development use of the land for such year as the proposed development meets the required points as irndicated in the scheduled corpletion dates of the capital budget and capital plan as amended or failing to meet such points then for the final year of the capital plan as amended. Any improverent 111 scheduled in the capital budget for conpletion within one year from the date of application for the special permit shall be credited as though in existence on the date of application. Any improvenent scheduled in the capital budget or capital plan more than-one year from date of application shall be credited as though in existence as of the date of the scheduled cotpletion. (b) A developer may advance the date of authorization by agreeing to provide such improvenents as will bring the development within the required number of points for earlier or immediate develop- ment. Such agrereent shall be secured by either a cash deposit or surety bond sufficient to cover tlne cost of the proposed improvenent, the form, sufficiency, and amount of which bond shall be determined by the Town Board. (c) All approved special permits vesting a present right to future development shall be fully assignable without restriction. (d) Nothing herein contained shall prevent such land frcm being immediately used for all other uses other than residential development use, as is authroized by the zoning ordinance. (2) Relief Any residential developer or development agent who has applied for a special permit from the Town Board pursuant to $46-13.1 shall be entitled as of right, to appeal within one year from the Town Board's determination granting the vested approval to the De- velopment Easenent Acquisition Commission, pursuant to Chapter 11 of the Code of the Town of Ramapo, for a determination pursuant to 112 $ll-4 (B) of the Development Easerent Acquisition Law as to the extent to which the temporary restriction on residential development use of the land shall affect the assessed valuation placed on such land for purposes of real estate taxation and such assessed valuation on such land shall be reduced as provided in the Development Easenent Acquisi- tion Law as compensation for the tenporary restriction placed on the larnd. F. Variances (l) ‘I‘he'IownBoardshallhavethepowertovaryormodify the application of any provision of $46-13..l of this ordinance upon its determination in its legislative discretion, that such variance or modification is consistent with corprehensive planning for proper land use including the master plan, official map, capital budget, andcapital planuponwhichthisordinance isbasedandwiththehealth. safety, and general welfare of the Town and its inhabitants. (2) Upon receiving any application for such variance or modification, such application shall be referred to the Planning Boardofthe'lownofRamapoforareportandrecomendationofsaid Planning Board with respect to the effect of the proposed variance or modification upon the conprehensive planning of‘ the Town including the master plan, official map, capital bnrlget and plan, existing ordi- nances, laws and regulations and the health, safety, and general welfare of the Town and its inhabitants. ( 3) All applications for variance or modification shall be filed with the Administrative Assistant to the Boards and Connie- sions who shall forward same within two weeks after receipt to the 113 Fleming Board for its report. Such report shall be made in writing and shall be returned by the Planning Board to the said Administrative Assistant within 30 days of such reference. The said Administrative Assistant shall forward said report to the Town Board and the Town Clerk shall proceed to notice the application for public hearing at the firstreg'ularmeetingofthe'lownBoardnot less thantwoweeks after submission of the written report by the Planning Board. The Town Board shall render its determination within thirty (30) days after conclusion of the public hearing. G. Fees (1) me fee for each special permit application pursuant to $46—13.1(c) to the Town Board shall be Twenty-Five Dollars ($25.00) plus Ten Dollars ($10.00) for each proposed dwelling unit, payable at the time of said application and are not refundable. (2) line fee for each application for a variance pursuant to $46-13.l(f) to the. Town Board shall be Twenty-Five Dollars ($25.00) plus Ten Dollars ($10.00) for each proposed dwelling unit payable at the time of the application and are not refundable. APPENDIX B Criteria Used For Rating Developnent Applications Unnder the Petaluma Plan]- 1. Utilities and Public Services: (a) The capacity of the water system to provide for theneedsoftheproposed developnentvdthout systemextensionsbeyond those normally installed by the developer; 2 (b) ‘The capacity of. the sanitary sewers to dispose of -the.wastes of theproposeddeveloptent without systemextensionbeyond those normally installed by the developer; (c) The capacity of the drainage facilities to olequately dispose of the surface run-off of the proposed developnent without system extensions beyond those normally installed by the developer: ((1) 'lheabilityoftheFireDepartmentoftheCityto provide fire protection according to the established response stanndards of the City without the necessity of establishing a new station or re- quiring addition of major equipment to an existing station; (6) The capacity of the appropriate school to absorb the children expected to inhabit a proposed developnent without necessi- tating adding double sessions or other unusual scheduling or classroom overcrowding; 1. Taken from Frank B. Gray, "The City of Petaluma: Residential De- velognent Control", in Nanagement and Control of Growth - Issues- Techniques-Problems—Trends, Volume II (Washington, D.C. : The Urban land Institute, 1975), pp. 149-159. 111+ 115 (f) 'The capacity of major street linkage to provide for the needs of tlne proposed development without substantially altering existing traffic patterns or overloading the existing street system, and the availability of other public facilities (such as parks and play- grounnds) to meet the additional demands for vital public services without extensionofservicesbeyondthoseprovidedbythedeveloper. 2. Quality of Design and Contribution to Public Welfare and Amenity: (a) Site and architectural design quality which may be indicatedbytheharmonyoftheproposedbuildingsintermsof size, Insight, color, annd location with respect to existing neighboring de- veloprent; (b) Site and architectural design quality which may be indicated by the amount arnd character of landscaping and screening; (c) Site and architectural design quality which may be indicated by the arrangenent of the site for efficiency of circulation , on- and -off—site traffic safety, privacy, etc.; (d) The provision of public and/or private usable open space and/or pathways along the Petaluma River or any creek; (e) Contributions to and extensions of existing system of foot or bicycle paths, equestrian trails and the greenbelt provided for in the Environmental Design Plans; (f) The provision of needed public facilities, such as critical linkages in the major street system, school rooms, or other vital public facilities ; 116 (g) The extent to which the proposed development ac- complished an orderly and contiguous extension of existing developrent as against " leapfrog" developnent; (h) The provision of units to meet the City's policy goalof 8percentt012percent lowandmoderate incone dwellingunits annnually. EachofthecriteriaintheformercategoryisratedcnascaleofOto 5;. in the latter each of the criteria is rated on a scale of 0 to 10. No developnent can be approved unless it receives at least 25 points in the first category (e.g., it meets five of the six criteria) and 50 points in the second. After evaluation, the ratings are published and an appeal hearing is provided for applicants who disagree with the rating given their proposal. Final ratings are sent to the city council, which allots permitsonthebasisofthequotaforeachsectoroftlnecityandthe ratings of the proposals within each sector. If a developer fails to begin construction within six months, his allotted number of units may bewithdramandeitrergiventothenexthighestapplicant,oradded tothequotafortheensuingyear. BIBLIOGRAPHY BIBLIOGRAPHY American Society of Planning Officials. "Problems of Zoning and Land Use~Regu1ation." In Land Use Controls: jgresent -Problems and Future Reform. David Listokin, ed. Rutgers University: Center for Urban Policy Research, 1974. Pp. 35-37. . Attorneys for Appellants (City of Petaluma). "The Petaluma Decision: On Appeal to the Ninth Circuit." In Management and Control of Growth: Issues-Techniques-Problems-Trends. Volume II. Randall W. Scott, ed. Washington, D.C.: The Urban Land Institute, 1975. Pp. 160-172. Bosselman, Fred P. "Can the Town of Ramapo Pass a Law to Bind the Rights of the Whole World?" Florida State University Law Review, Volume 1 (1973), Pp. 234-265. Bosselman, Fred P. "The Right to Move: The Need to Grow." Planning, the ASPO Magazine, Volume 39, No. 8 (September 1973), Bosselman, Fred P. and David Callies. The Quiet Revolution in Land Use Control. Washington, D.C.: The Council on Environ- mental Quality, 1971. Court of Appeals of New York. "Ramapo: The Case Decision." In Management and Control of Growth: Issues-Techniques- Problems-Trends. Volume II. Randalliw. Scott, ed. Wash- ington, D.C.: The Urban Land Institute, 1975. Pp. 14-31. Delafons, John. Land Use Controls in the United States. Cam- bridge, Massachussetts: The MIT Press, 1969. Emanuel, Manuel S. "Ramapo's.Managed Growth Program: A Close Look at Ramapo After Five Years Experience." Planners Notebook, Volume 4, No. 5 (October, 1974). Finkler, Earl and David L. Peterson. Nongrowth Planning Strate- gies-The Developi_g Power of TownsL Cities, and Regions. New York. Praeger Publishers, 1974. Finkler, Earl; William J. Toner and Frank J. Popper. Urban Non- growth: City Planning for People. New York: Praeger Publishers, 1976. ll? 118 Franklin, Herbert M. "Controlling Urban Growth: But For Whom? The Social Implications of Development Timing Controls." In Management and Control of GrOWth: Issues-Techniques- Problems-Trends. Volume II. Randall W. Scott, ed. Wash- ington, D.C.:‘The Urban Land Institute, 1975. Pp. 78-101. Franklin, Herbert M. "Legal Dimensions to Controlling Urban Growth. " In Management and Control of Growth. Issues- Techniques-Problems-Trends. 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(July, 1974), Pp. 243-254. Scott, Randall W. "Court Finds Municipalities Must Act in Context of Regional General Welfare." AIP Newsletter, VOlume 10, No. 6 (June, 1975), Pp. 11-12.‘ Scott, Randall W. Management and Contrglof Growth: Issues- Iechniques:Problems-Trends. Volume I. Washington, D.C.: The Urban Land InStitute, 1975. Scott, Randall W. "The Petaluma Decision: Another Sign That Federal Courts Don't Want To Get Into Land Use." AIP News- letter, Volume 10, No. 10 (October, 1975), Pp. 7-10. Scott, Randall W. "The Ramapo Case: Five Zoning Digest Commentaries“. In Management and Control of Growth: Issues-Techniques-Problems- Trends. Volume II. Randall W. Scott, ed. Washington, D.C.: The Urban Land Institute, 1975. Pp. 32-51. 120 Silverman, David W. "A Return to the Walled Cities: Ramapo as an Imperium in Imperio." In Magagement and Control of ' Growth: IssueseTechniques-PrqblemseTrends. Volume II. Randall W. Scott, ed. Washington, D.C.: The Urban Land Institute, 1975. Pp. 52-61. .- Stollman, Israel. "Ramapo: An Editorial and the Ordinance as Amended." In Management and Control of Growth: Issues- Techniuqes-Problems-Trends. Volume II. Randall W. Scott, ed. Washington, D.C.: The Urban Land Institute, 1975. Pp. 5-13. Sussna, Stephen. Land Use Control...§gre Effectivg Approaches. Washington, D.C.: The Urban Land Institute, I§70. -United States Court of Appeals, Ninth Circuit. "Construction Industry Association of Sonoma County v. The City of Peta- luma, Case Decision." 522 Federal Reporter, 2d Series (August, 1975), Pp. 897-909. United States District Court, N.D. California. "Petaluma: The Case Decision." in Management and Control of Growth: Isages-Techniuges-Problems-Trends. Volume II. Randall W. Scott, ed. Washington, D.C.: The Urban Land Institute, 1975. Pp. 135-148. Williams, Jr., Norman. American Planning Law: Land Use and the Police Powag. Volume I. Chicago, Illinois: Callaghan and Company, 1974. Williams, Jr., Norman. 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In New Dimensions of Urban Planning: Growth Controls. James W. Hughes, ed. Rutgers University?fldenter for Urban Policy Research, 1974. Pp. 31-61. International City Management Association. "Strategies for Controlling Growth: A Collection of 13 Articles." In Man- agement and Control of Growth: Issues-Technigpes-Probleme- Trends. Volume III. Randall W. Scott, ed. Washington, D.C.: The Urban Land Institute, 1975. Pp. 250-283. O'Keefe, Thomas C. "Time Controls on Land Use: Prophylactic Law for Planners." In Management and Control of Growth: Issues- Techniques- -Prob1ems- Trends. Volume II. Randall W. Scott, ed. Washington, D. C.: The Urban Land Institute, 1975. Pp. 62-77. Real Estate Research Corporation. The Costs of Sprawl - Environmental and: Economic Costs of Alternatlve Residen- tial Development Patterns at the Urban Fringe. Washington, D. C.: Council on Environmental Quality, 1974. "Time Runs Out on Exclusionary Zoning." Planning, the ASPO Magazine, Volume 42, No. 7 (Augues, 1976), P. 6. Williams, David and Earl Finkler. "Containing Growth Does Save Money." Planning, the ASPO Magazine, Volume 41, No. 1 (January, 1975), Pp. 9-12. 121