Tuesday, February 16, 2016

Zoning’s Centennial, Part 6: The Surprising Origins of Smart Growth: A Series by John R. Nolon

Part 6


Zoning’s Centennial

John R. Nolon

Distinguished Professor of Law, Pace Law School

Counsel, Land Use Law Center


The Surprising Origins of Smart Growth

The idea that local land use law can intelligently shape settlement patterns was not a familiar concept in the late 1960s when the Town of Ramapo, New York adopted an ordinance that delayed development permits until the Town could provide needed infrastructure. Ramapo was experiencing unprecedented growth as one of the closest northern suburbs of New York City. Developers, who in some cases had to wait years for services to their land, sued; they argued that these phased development controls were intended to prohibit subdivisions and restrict population growth, which is not authorized under the state’s zoning enabling legislation.

New York’s highest court disagreed, holding that “phased growth is well within the ambit of existing enabling legislation.” Golden v. Planning Board of Ramapo (1972). The court found that Ramapo was not acting to close its borders to growth, but was trying to prevent the negative effects of uncontrolled growth. It found that Ramapo’s zoning was not in violation of the Federal or New York State Constitutions, because a rational basis for phased growth exists where “the existing physical and financial resources of the community are inadequate to furnish the essential services and facilities which a substantial increase in population requires.”

Another form of growth control, a strategy that became known as smart growth, was created 25 years later in Maryland, under Governor Parris Glendenning (now President of the Smart Growth Leadership Institute). He radically changed state budget priorities by investing state infrastructure funds in priority growth areas to foster new development and by acquiring open space in conservation areas to preserve natural resources. This approach controlled growth in order to reign in the ill effects of sprawling land use patterns. Such patterns evolve gradually, as the land use blueprint contained in the municipal zoning ordinance is built out, one project at a time.

Maryland did what the Ramapo court suggested that the New York State legislature should do. “Of course,” the court wrote, “these problems cannot be solved by Ramapo or any single municipality, but depend upon the accommodation of widely disparate interests for their ultimate resolution. To that end, Statewide or regional control of planning would insure that interests broader than that of the municipality underlie various land use policies.”

Glendenning’s strategy called for local action. If local governments are to revise their basic blueprint and accomplish smarter growth, how should they proceed? State law provides numerous planning tools for municipalities to use to accomplish growth and conservation objectives. Principal among these, of course, is the comprehensive plan, the ideal document to account for the rational allocation of land use.

Local plans, properly drafted to accomplish smart growth, call for the use of a host of land use techniques that are capable of creating smarter, less wasteful, and more economically-efficient development patterns. These include, among others, cluster zoning, performance zoning, overlay zoning, floating zones, transit oriented development, traditional neighborhood zoning, planned unit development zoning, the purchase of development rights, the imposition of conservation easements, and the transfer of development rights. In addition, comprehensive plans can guide the creation of capital budgets and the funding of water, sewer, roads, lighting, sidewalks, parks, and education infrastructure in areas where denser development is needed.

Today, priority growth areas include cities and urban villages which are out-competing suburbs for growth and its benefits. Urban neighborhoods are fueling the economy by spiking construction and retail jobs, increasing real estate sales, brokerage commissions, financing, and title coverage as well as providing urban amenities to newly formed households looking for lively places to work and live. These efforts in the cities and villages that host our colleges, hospitals, affordable housing, restaurants, and entertainment venues make both themselves and development in adjacent communities more viable. Workers and residents, for example, are attracted to a transformed mixed-use office park when they can access the shopping, night life, and services available in a nearby, rejuvenating city or village.

Smart Growth is a popular label for a growth strategy that addresses current concerns about traffic congestion, disappearing open space, non-point source pollution, the high cost of housing, increasing local property taxes, longer commutes, excessive fossil fuel and energy consumption, and the diminishing quality of community life. What was barely perceptible in the real estate market 15 years ago is rapidly becoming a booming business. Developers make it clear that they will invest in this new market, but only where local mayors and councils are champions of sustainable development, where a clear local vision and conforming zoning are in place, and where the local land use approval process works efficiently.

States are following Maryland’s example, learning how to shape spending policies to influence local action. They are adopting smart-growth infrastructure plans, new energy plans, complete street infrastructure policies, main street programs, climate-smart communities initiatives, brownfield spending budgets, and transit-oriented development policies and programs. Together, these state efforts create a clear target for local governments and developers to address.

What is smart about these policies and the projects they spawn, in addition to being sensitive to powerful new market trends and utilizing existing infrastructure, is that they also greatly reduce, on a per household basis, water consumption, energy use, building materials used, and the impervious coverage that causes storm water runoff and flooding. These developments can also be more affordable, particularly where localities offer bonus densities to developers in exchange for workforce housing, bringing office, research, retail, and service workers closer to where they work.

For more information, see John R. Nolon, Golden and Its Emanations: The Surprising Origins of Smart Growth, Urban Lawyer, vol. 35, no. 15 (2003).

Links to previous posts in the Zoning Centennial’s Series:

Part 1: The Need for Public Regulation of Land Use – The First Comprehensive Zoning Law

Part 2:  The Delegation of Legal Authority To Adopt Zoning

Part 3: Zoning Was Contagious, But Was It Constitutional?

Part 4: The Unintended Consequences of Euclidean Zoning

Part 5: The Most Appropriate Use of the Land


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