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PROBLEM
GROWTH MANAGEMENT
AN INTRODUCTION TO GROWTH MANAGEMENT
E. KELLY, PLANNING, GROWTH, AND PUBLIC FACILITIES: A PRIMER FOR LOCAL
OFFICIALS 16
NOTES AND QUESTIONS
Add to Note 2, p. 770:
A recent report by Smart Growth America finds that smart growth brings the following savings:
• In general, smart growth development costs one-third less for upfront infrastructure.
• Smart growth development saves an average of 10 percent on ongoing delivery of services.
• Smart growth development generates 10 times more tax revenue per acre than
conventional suburban development.
Smart Growth America, Building Better Budgets: A National Examination of the Fiscal Benefits of Smart Growth Development (May 2013), available at http://www.smartgrowthamerica.org/documents/building-better-budgets.pdf. The report points out:
In 2010, local governments in the United States raised and spent $1.6 trillion, representing more than 10 percent of the U.S. gross national product. Of that, approximately one-third—$525 billion—was expended on projects and activities that are heavily affected by local development patterns That means future decisions about where to build will have implications for one-third of a typical municipality’s budget. [Id. at 1.]
Add to Note 5 “Growth management and market monopoly” at p. 772
Article
Russell-Evans & Hacker, Expanding Waistlines and Expanding Cities: Urban Srawl and its Impact on Obesity, How the Adoption of Smart Growth Statutes Can Build Healthier and More Active Communities. 29 Va. Envtl. L.J. 63 (2011).
The Urban Lawyer published by the American Bar Association devoted a double issue to infrastructure: The Urban Lawyer, Vol. 42, No. 4/Vol 43, No. 1, Fall/Winter 2010/2011; http://www.americanbar.org/publications/urban_lawyer_home.html
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Add to Note 7, p. 772:
Articles
Anderson, Sprawl's Shepherd: The Rural County. 100 Cal. L. Rev. 365 (2012), Recent Development, Growing Pains: Maryland's Struggle to Introduce Smart Growth to a Growing Population, 18 U. Balt. J. Envtl. L. 79 (2010). For a symposium on growth management see 78 J. Am. Plan. Ass'n 5-103 (2012), especially an introductory article by Professor Chapin on an emerging fourth wave.
Russell-Evans & Hacker, Expanding Waistlines and Expanding Cities: Urban Srawl and its Impact on Obesity, How the Adoption of Smart Growth Statutes Can Build Healthier and More Active Communities. 29 Va. Envtl. L.J. 63 (2011).
The Urban Lawyer published by the American Bar Association devoted a double issue to infrastructure: The Urban Lawyer, Vol. 42, No. 4/Vol 43, No. 1, Fall/Winter 2010/2011, available at http://www.americanbar.org/publications/urban_lawyer_home.html
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PROBLEM
GROWTH MANAGEMENT STRATEGIES
Quota Programs
How These Programs Work
Takings and Other Constitutional Issues: The Petaluma Case
NOTES AND QUESTIONS
Zuckerman v. Town Of Hadley
NOTES AND QUESTIONS
Facility-Related Programs
Phased Growth Programs
Golden v. Ramapo Planning Board
NOTES AND QUESTIONS
Adequate Public Facility Ordinances and Concurrency Requirements
Adequate Public Facilities Ordinances
NOTES AND QUESTIONS
Maryland-National Capital Park And Planning
Commission v. Rosenberg
NOTES AND QUESTIONS
Adequate Public Facilities Ordinances
Add to Note 1 “Making APF ordinances work,” p. 803
For a case in which the court held the city failed to follow the requirements in its own ordinance and failed to make adequate findings of fact see Anselmo v. Mayor of Rockville, 7 A.3d 710 (Md. App. 2010).
Add new Note 4, p. 804
4. New York State Smart Growth Public Infrastructure Policy Act N.Y. Envtl. Conserv. L. § 6-0101 et seq.
Recently adopted legislation in New York provides that “no state infrastructure agency shall approve, undertake, support or finance a public infrastructure project” unless it is consistent with criteria provided by the Act. N.Y . Envtl. Conserv. L. § 6-0107. These are some of the statutory criteria:
●To advance projects in developed areas or areas designated for concentrated infill development in a municipally approved comprehensive land use plan, local waterfront revitalization plan and/or brownfield opportunity area plan
●To foster mixed land uses and compact development, downtown revitalization, brownfield redevelopment, the enhancement of beauty in public spaces, the diversity and affordability of housing in proximity to places of employment, recreation and commercial development and the integration of all income and age groups
●To promote sustainability by strengthening existing and creating new communities which reduce greenhouse gas emissions and do not compromise the needs of future generations, by among other means encouraging broad based public involvement in developing and implementing a community plan and ensuring the governance structure is adequate to sustain its implementation.
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Concurrency
PROBLEM
Tier Systems and Urban Service Areas
Growth Management in Oregon: The Urban Growth Boundary Strategy
Mandelker, Managing Space to Manage Growth
NOTES AND QUESTIONS
Add to Note 7, p. 814:
Adler, Oregon Plans: The Making of an Unquiet Land-Use Revolution (2012); Walker & Hurley, Planning Paradise: Politics and Visioning of Land Use in Oregon (2011) (discusses problems with urban growth boundary expansions and other state planning goals implementation problems, and identifies issues to be considered that are challenging the program); Sullivan, The Quiet Revolution Goes West: The Oregon Planning Program 1961-2011, 45 J. Marshall L. Rev. 357 (2012).
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Hildebrand v. City Of Adair Village
NOTES AND QUESTIONS
Add to Note 1, p. 819:
1000 Friends v. Land Conservation & Dev. Comm'n, 259 P.3d 1021 (Or. App. 2011), reaffirmed the rules for boundary expansions.
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Growth Management Programs in Other States
Washington
Add to Urban growth areas paragraph, p. 822:
Add to Rural areas paragraph p. 822:
Kittitas County v. Eastern Wash. Growth Mgmt. Hearings Bd., 256 P.3d 1193 (Wash. 2011) held the rural areas element of the county's comprehensive plan was inadequate. Some of the problems were that it did not contain policies that adequately protected rural areas, included non-rural densities and uses, did not provide for a variety of uses, and allowed impermissible uses.
Density Limits: The court reversed the Growth Management Hearings Board’s approval of a county’s comprehensive plan under the Growth Management Act in Suquamish Tribe v. Central Puget Sound Growth Mgmt. Hearings Bd., 235 P.3d 812 (Wash. App. 2010). It rejected the county’s use of “bright line” density rules and held, in part, that the county improperly used a bright line density of four units to the acre in deciding whether an Urban Growth Areas should be expanded. On remand, the Board was “to consider the current, specific local circumstances before resolving the issue of appropriate densities to be used in the County's revisions to its comprehensive plan,” and to decide whether four units to the acre was an appropriate urban density for the county. The court also rejected aspirational design standards the county adopted to preserve rural character.
The Department of Commerce has published a new Urban Growth Area Guidebook (Nov. 2012), available at http://www.commerce.wa.gov/Documents/GMS-UGA-Guidebook-Final-2012.pdf. The Department of Community, Trade & Economic Development was renamed the Department of Commerce, which oversees the growth management program. Futurewise is supporting legislation to provide "new tools to facilitate affordable and sustainable infill development – like Value Capture Financing."
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Vermont
The growth centers legislation was amended in 2013. It is available at http://leg.state.vt.us/docs/2014/Acts/ACT059.pdf . The law revises designation criteria for downtowns and village centers. It designates areas appropriate for development based on their connection to a village or downtown, with a special emphasis on walkability. Communities that are "development ready" recieve certaian exemptions, such as exemption from Act 250 for bcenefits of a certain size. Revitalization is linked to local planning. The Department of Housing and Community Development is to review the growth center and new town designation programs to decide whether they should be amended and continued. The amendments state: “A large percentage of future growth should occur within duly designated growth centers that have been planned by municipalities in accordance with smart growth principles and Vermont’s planning and development goals....”
Smart Growth Vermont has now become part of the Vermont Natural Resources Council, vnrc.org
Hawaii
Add at end of section:
For a review of the program see Callies, It All Began in Hawai'i, 45 J. Marshall L. Rev. 317 (2012).
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Add new “[d.] Florida” on p. 826:
[d.] Florida
Drastic Changes in Florida’s Growth Management Program
Legislation adopted in 2011 made drastic changes in the state’s growth management program. Here are some of the highlights:
● The Department of Community Affairs (DCA), which was responsible for the growth management program, has been eliminated and its state land planning agency functions included as a division in the new Department of Economic Opportunity. The number of planners assigned to the planning function has been substantially reduced.
●The critical DCA rule specifying requirements for complying with the growth management program has been repealed, though many of its provisions are now incorporated into legislation. This includes its definition of urban sprawl, and the requirement for an urban sprawl analysis in comprehensive plans.
● The periodic Evaluation and Appraisal Report is no longer mandatory; but local governments must notify the state whether they will choose to conduct it.
● Provisions for energy efficiency and greenhouse gas reduction have been eliminated.
●The requirement, that a comprehensive plan may only be amended twice a year, has been eliminated.
●The state concurrency requirement for transportation, schools, parks and recreation facilities is made optional with local governments.
●The burden of proof in cases challenging the compliance of a comprehensive plan or plan amendment with statutory requirements has been weakened. For example, in challenges in private litigation, a plan or plan amendment it will be enough if a local government’s determination of compliance is fairly debatable.
The legislation also prohibits local referenda for development orders and comprehensive plan amendments. For a powerpoint presentation on the amendments see http://www.dca.state.fl.us/fdcp/dcp/compplanning/Files/DCAGrowthManagementWorkshopPresentation.pdf. For the text of the bill see http://laws.flrules.org/2011/139. See http://www.dca.state.fl.us/fdcp/dcp/compplanning/Files/7207FAQs.pdf, for FAQS on the legislation. The governor vetoed funding for the regional planning agencies.
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For discussion see Stroud, A History and New Turns in Florida's Growth Management Reform, 45 J. Marshall L. Rev. 397 (2012).
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An Evaluation of Growth Management Programs
Add to Sources, p. 827:
Mandelker, Implementing State Growth Management Programs: Alternatives and Recommendations, 45 J. Marshall L. Rev. 307 (2012).
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CONTROLLING GROWTH THROUGH PUBLIC SERVICES AND FACILITIES
Limiting the Availability of Public Services
Dateline Builders, Inc. v. City Of Santa Rosa
NOTES AND QUESTIONS
Corridor Preservation
NOTES AND QUESTIONS
Add to Note 2, p. 834:
Chevere v. City of New York, 920 N.Y.S.2d 572, reviews the New York cases. See Comment, Official Maps and the Regulatory Takings Problem: A Legislative Solution. 2011 BYU L. Rev. 2251 (2011).
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AESTHETICS: DESIGN REVIEW, SIGN REGULATION AND HISTORIC PRESERVATION
AESTHETICS AS A REGULATORY PURPOSE
NOTES AND QUESTIONS
OUTDOOR ADVERTISING REGULATION
PROBLEM
In the State Courts
Metromedia, Inc. v. City Of San Diego
NOTES AND QUESTIONS
A NOTE ON THE FEDERAL HIGHWAY BEAUTIFICATION ACT
Free Speech Issues
Metromedia, Inc. v. City Of San Diego
NOTES AND QUESTIONS
Add to Note on p. 863 immediately before “Sources”:
Sign Regulation and Free Speech.
Exemptions, Content Neutrality: Brown v. Town of Cary, 706 F.3d 294 (4th Cir. 2013) took a lenient view of the content neutrality requirement in a case in which it upheld exemptions of holiday displays and public art in a sign ordinance. The court held that "the Sign Ordinance's exemptions reasonably advance the legislative interests of traffic safety and aesthetics." It adopted the pragmatic view it took of content neutrality it took in Wag More Dogs, noted below, disagreed with "sister circuits" that had taken a formalistic view, and held an ordinance is not content-based simply because it is necessary to read a sign's content to decide whether an ordinance applies. It also upheld size, color and positioning restrictions. For a case taking a similar view of content neutrality see Reed v. Town of Gilbert, 707 F.3d 1057 (9th Cir. 2013). The court also rejected the "need to read" rule and upheld an exemption for temporary signs.
Special Use Permit; Vagueness: CBS Outdoor, Inc. v. City of Kentwood, 2010 U.S. Dist. LEXIS 107172 (W.D. Mich. Oct. 6, 2010), upheld a special use permit provision in a sign ordinance as a time, place and manner regulation. It regulated “the location and physical characteristics of signs and their compatibility with existing structures and facilities,” and so established standards that related to the significant interests of the city in regulating billboards. However, the court held that several standards for special uses were unconstitutional because they were not objective and definite. These included standards requiring that the special use must “"[b]e designed, constructed, operated and maintained so as to be harmonious and appropriate in appearance, with the existing or intended character of the general vicinity," and that "The construction or maintenance of a billboard may not act as a detriment to adjoining property, act as an undue distraction to traffic on nearby streets, or detract from the aesthetics of the surrounding area."
Political Signs: Kolbe v. Baltimore County, 730 F. Supp. 2d 478 (D. Md. 2010), upheld an eight-foot square size limit that was applied to prohibit a campaign sign that was regulated as part of a provision regulating “temporary” signs. The requirement was content-neutral because it applied regardless of the content of the sign and advanced legitimate aesthetic and traffic safety interests of the county. Ample alternative means of communication existed, because the county does not limit the number of signs and is not enforcing durational limits.
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Murals; Vagueness: Wag More Dogs, LLC v. Artman, 680 F.3d 359 (4th Cir. 2012), held that a 960-square-foot cartoon mural of dogs, bones, and paw prints on the rear wall of a canine day care business facing a park used by dog owners violated a 60-square-foot size limit. The ordinance was content-neutral because it regulated land use, and did not regulate speech because of a disagreement of message. Neither did the varying treatment of signs convert the ordinance into a content-based regulation. The county properly adopted the ordinance to advance its traffic safety and aesthetic interests. The cartoon dogs were properly classified as commercial speech. Dogs were included from the business logo, and the cartoon was economically motivated. The definition of a sign as "any word, numeral, [or] figure . . . [that] is used to direct, identify, or inform the public” was not unconstitutionally vague. Standards in the ordinance for granting exemptions were adequate and not an unconstitutional prior restraint on speech.
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A NOTE ON FREE SPEECH PROBLEMS WITH OTHER TYPES OF SIGN
REGULATIONS
Add to “Sources” on p. 863
Book:
Mandelker, Free Speech Law for On Premise Signs (2012), provides a comprehensive review of free speech law as applied to on premise sign regulation. It is available for download on the course web site and at www.ussc.org.
Articles:
Miller, Historic Signs, Commercial Speech, and the Limits of Preservation, 25 J. Land Use & Envtl. L. 227 (2010).
Sharpe, "Between Beauty and Beer Signs": Why Digital Billboards Violate the Letter and Spirit of the Highway Beautification Act of 1965, 64 Rutgers L. Rev. 515 (2012); Note, Something's Brewing Within the Commercial Speech Doctrine, 46 Val. U.L. Rev. 607 (2012); Note, Environmental Aesthetics and Free Speech: Toward a Consistent Content Neutrality Standard for Outdoor Sign Regulation, 2 Mich. J. Envtl. & Admin. L. 185 (2012).
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Comment, "Hey! Look at Me!": A Glance at Texas's Billboard Regulation and Why All Roads Lead to Compromise, 44 Tex. Tech. L. Rev. 429 (2012).
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URBAN DESIGN
Appearance Codes
State Ex Rel. Stoyanoff v. Berkeley
NOTES AND QUESTIONS
Design Review
In re Pierce Subdivision Application
NOTES AND QUESTIONS
Add to Note 5, p. 877:
E. Talen, City Rules: How Regulations Affect Urban Form (2012).
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A NOTE ON DESIGN GUIDELINES AND MANUALS
Urban Design Plans
A NOTE ON VIEW PROTECTION
HISTORIC PRESERVATION
NOTES AND QUESTIONS
Historic Districts
Figarsky v. Historic District Commission
NOTES AND QUESTIONS
Add immediately before Notes and Questions, p. 895
Historic Preservation
[3]. Due Process, Equal Protection, Spot Zoning: In Ely v. City Council, 2010 Iowa App. LEXIS 673 (Iowa App. June 30, 2010), the court upheld the designation of a home as an historic landmark that had been used to house African-American students at the university when they were denied housing elsewhere. It is also an example of the Craftsman architectural style. The court held that neighbors do not have a protected property interest in the historic landmark status of adjoining properties sufficient for a procedural due process claim. There was no equal protection violation because “Promoting preservation of historical and cultural lands has been found to be a legitimate government interest to support the differing treatment of properties.” Neither was there a spot zoning because the historic and cultural significance of the property was a reason for distinguishing it from the surrounding area. See also Baltimore St. Parking Co., LLC v. Mayor & Balt., 5 A.3d 695 (Md. 2010) (rejecting claim of procedural due process violations).
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Historic Landmarks
NOTES AND QUESTIONS
Add to Sources, p. 898
Articles
Note: Post-Kelo Eminent Domain Reform: A Double-Edged Sword for Historic Preservation, 63 Fla. L. Rev. 985 (2011).
Note, Smash or Save: The New York City Landmarks Preservation Act and New Challenges to Historic Preservation, 19 J.L. & Pol'y 271 (2010).
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Brindell, "Improving the Standards and Process of Historic Designation," 44 Urb. Law. 265 (2012); Byrne, Historic Preservation and its Cultered Despisers: Reflections on the Contemporary Role of Preservation Law in Urban Development, 19 Geo. Mason L. Rev. 665 (2012); Note, Improving Tax Incentives for Historic Preservation, 90 Tex. L. Rev. 1041 (2012); Note: Post-Kelo Eminent Domain Reform: A Double-Edged Sword for Historic Preservation, 63 Fla. L. Rev. 985 (2011);Note, Smash or Save: The New York City Landmarks Preservation Act and New Challenges to Historic Preservation, 19 J.L. & Pol'y 271 (2010); New York City's Landmarks Law at Forty-Five: Perpetually Young or Showing Its Age?, 18 Widener L. Rev. 267 (2012); Baccash, The New York City Landmarks Law: Embracing Litigation and Moving Toward a Proactive Enforcement Philosophy, 18 Widener L. Rev. 159 (2012).
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A NOTE ON FEDERAL HISTORIC PRESERVATION PROGRAMS
Transfer of Development Rights as a Historic Preservation Technique
NOTES AND QUESTIONS
Fred F. French Investing Co. v. City Of New York
NOTES AND QUESTIONS
A NOTE ON MAKING TDR WORK
Table of Cases
Index
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