Controlled Growth as a Planning Alternative: An Overview

Controlled Growth as a Planning Alternative: An Overview¹

Ann E. Prezyna

Growth as an American ideal is a fundamental component of the expansive pioneer spirit. It is vital to the maintenance of class mobility. But it is a truism whose hold upon the American approach to land use planning, or lack thereof, is being challenged for the first time in courts throughout the nation. Too long neglected as a potentially manageable area of environmental quality control, land use planning is gaining increasing recognition as the key to eliminating or controlling all environmental evils — that is, if one manages the land properly, the problems of air and water pollution, solid waste, noise and energy shortages will be avoided, or their effects significantly lessened.

Local governments, however, have traditionally sidestepped the issue of comprehensive land use planning. Unhappily, the absence of effective planning is reflected in the leap-frog developments, the sprawl, the 'Denverization' so distastefully characteristic of the majority of our urban regions. Because of the crisis orientation of our governmental response mechanisms, however, many political entities have abruptly about-faced from "GNP — Full Throttle" to "STOP GROWTH."

The fact that "no-growth" is as undesirable and as unreachable a goal as an ever-bloating economy is reinforced by continued court rejection of this approach as a planning alternative. In Construction Industry Association v. City of Petaluma,² for example, a California city ordinance limiting growth to 500 new housing units per year (a figure substantially below the estimated new housing demand in the community) was struck down by a federal district court as a violation of the constitutional right to travel since no compelling governmental interest was shown. Defendants' arguments that such exclusionary zoning measures were necessary to deal with sewage problems, assure an adequate water supply and preserve the "small town character" of Petaluma were rejected as an invalid use of the local police power: such a plan merely shifts the burden of providing housing to other cities within the San Francisco region. Rather, the court held that a municipality capable of supporting a natural population expansion may not limit growth simply because it does not see fit to grow at the rate that would be determined by the prevailing market demand.

In light of the controversial nature of controlled growth policies, but recognizing the need to control or manage growth, Fairfax County, Virginia, on January 5 of this year, passed an interim development ordinance which bans the processing of plans for new construction within the county. The building ban was imposed to allow the county time in which to develop a new Planning and Land Use System (PLUS Program) without the pressures for new rezonings and construction permits based upon outmoded plans. It should be emphasized that this plan does not call for "no-growth" but rather for "controlled growth," the difference between the two policies being not merely semantic, but a substantive, significant one. Furthermore, the Fairfax ordinance provided for a land release program whereby exceptions to the ban could be granted in cases where they would not result in environmental damage, conflict with existing development, or interfere with the successful planning of the PLUS program.³

Although the PLUS program has received wide acclaim and has drawn interested parties from all over the world to study its program of rezoning to control growth, certain local groups were far from pleased. Developers and private landowners filed suit in the Fairfax Circuit Court in July, 1974 challenging the validity of the interim development ordinance. The suit represents the basic conflict between the notion that people have the right to do with their land as they please and the need to implement the ordered transition of rural Virginia to suburban Washington.⁴ The judge has recently declared the ordinance invalid, and his ruling is being appealed. The implications of the case are discussed infra.

The remainder of this paper will address itself to the issue of whether a government body can legally manage and control growth. It will discuss the no-growth philosophy as a planning alternative, provide a brief survey of the techniques most commonly used to limit growth, elaborate upon the constitutional limitations of controlled growth policies, examine briefly the implications of the Fairfax case (being the most recent and significant [4 ELR 50077] judicial decision in this area), and propose some recommendations to communities attempting to develop a comprehensive growth policy.

The Raisons D'Etre of the No-Growth Philosophy

To understand the growth-no-growth dichotomy, one must understand the motivations of those on each side of the question. No-growth advocates in land-use planning cases generally offer some combination of the following three reasons for their policy position.⁵

(1) The desire to preserve environmental amenities.

(2) An attempt to avoid unwanted additional financial burdens on the tax base.

(3) An exclusionary motive.⁶

Prevention of continued environmental degradation, that is, a "quality of life" factor, is gaining increasing judicial acceptance as a permissible criterion for limiting growth. Aspects like the quality of municipal services, density of residences, quality of housing, mobility of urban populations outwards (filtration), and price and location of housing (proximity to "infrastructure links," etc.) may reasonably be offered by municipal defendants in defense of alleged exclusionary zoning ordinances.

The Ramapo case,⁷ the first major U.S. growth controls case, supports this position. The court ruled that zoning may regulate growth rate by keeping it in phase with the public and institutional resources of the community (sewer facilities, drainage capacity, parks, schools, roads, fire protection facilities), the so-called "phased growth" solution.⁸

In general, the courts have held that the environmental component of the no-growth rationale requires the balancing of a town's duty to accommodate growth with the general community welfare.⁹ In construing the general welfare clause, the court in Steel Hill Development, Inc. v. Town of Sanbornton noted the following:

"We recognize, as within the general welfare, concerns relating to the construction and integration of hundreds of new homes which would have an irreversible effect on the area's ecological balance, destroy scenic values, decrease open space, significantly change the rural character of this small town, pose substantial financial burdens on the town for police, fire, sewer, and road service, and open the way for the tides of weekend 'visitors' who would own second homes."

The economic component of the argument for no-growth, i.e., a desire to avoid unwanted additional financial burdens on the municipal tax base, was a key factor in the passage of a 6-month moratorium on subdivision approvals on Fauquier County, Virginia.¹¹ The ordinance was passed in order to provide a "pause for planning," time in which to establish a capital improvement program and to amend existing zoning laws. The Fauquier supervisors foresaw the need to review future subdivision applications in light of the tax burden, among other factors. Unlike industrial developments which expand the tax base, residential development increases taxation costs per capita by creating an increased burden on existing municipal services. One way around this problem would be for the town to require adequate public facilities as a precondition to development. In Aunt Hack Ridge Estates, Inc. v. Planning Commission of the City of Danbury,¹² the court upheld the validity of a local ordinance requiring the developer to set aside an area for a park or playground where the increased demand for these facilities is exclusively or largely attributable to the developer's own activities.

The third rationale for no-growth, the desire to stop the social mobility of minority groups, is the least defensible. This attempt at maintaining the status quo, once ill-disguised, is now being well hidden. An exclusionary motive is prima facie evidence of a violation of the equal protection clause of the Constitution. For example, the city of Delray Beach, Florida, prevented a United Farmworkers Housing Project from hooking up with the municipal sewer system, claiming that the present system already was in violation of water pollution standards.New developments for whites, however, were granted exceptions and allowed to tie in. The Housing Project challenged those practices in federal court, and the court held that although a city may have no obligation in the first instance to provide water and sewer services to persons outside its geographical limits, once it has done so, it must continue to do so in a racially nondiscriminatory manner.¹³ The court also ruled irrelevant evidence that the present municipal sewer system was inadequate because [4 ELR 50078] state policy allowed low-income housing to be exempt from interim sewer bans.

One tack by which a town may attempt to circumvent the equal protection obstacle is by alleging that its sole motive for a particular zoning ordinance is to preserve its rural character. Indeed, this desire is oten a legitimate one. Even so, a four-acre minimum lot requirement passed pursuant to a town's "We have a nice little town here, see, and we'd like to keep it that way" attitude did not withstand judicial scrutiny in the National Land case.¹⁴ Distinguishing between a purely private preference and a reasonable purpose based upon the general welfare, the court ruled that a municipality may base a minimum lot requirement on the sewage capacity of the town, for example, but not solely on the town's preference for maintaining its low density character.¹⁵

Techniques Used to Limit Growth: An Evaluation

The following five techniques are those most commonly employed by governmental units to ensure proper use of the land: retention of a reversionary interest in the land, acquisition with public funds, use of the zoning power, elimination of development pressures by means of manipulation of the property tax, and passage of restrictive covenants between private land owners and the particular government entity involved.¹⁶

The possibility of reverter is that future interest retained by the grantor after conveying a determinable fee in land.¹⁷ Such a technique was used by the State of California in granting certain state-owned tidelands to the nearby city of Albany by legislation amended in 1961 to provide that such lands were to be used for various enumerated public purposes for which the land could be improved. These amendments further stipulate that should the State Lands Commission determine after a period of ten years that the City has failed to "substantially improve" the granted lands "for purposes in which there is a general statewide interest," the authorization to use the land for such purposes will automatically terminate and lapse.¹⁸

A task force report¹⁹ sponsored by the Rockefeller Brothers Fund recommends that a combination of federal, state and local land purchases be maintained at levels commensurate with the public demand for open space, particularly where urban growth is anticipated. The study warns, however, that no such program of open space acquisition is likely to satisfy the ever-increasing need for recreational lands, and that other techniques must be used in tandem.²⁰

The zoning power is perhaps the most widely applied of all growth controls, but it is also the most disputed. Its exercise is generally allowed wide latitude by the courts, subject only to the test that the regulation in question bear a "rational relationship" to a legitimate government purpose, except where the result in deemed exclusionary.²¹

Zoning techniques used to control the density of residential areas and to preserve open space include minimum lot requirements, limitations on the percentage of a lot to be constructed upon (so-called "grounds restrictions"), height limitations, limitations on the number of rooms (most commonly bedrooms) per building, and minimum floor space requirements.²² This use of the zoning power to restrain population densities was upheld as properly within the local police power in Ramapo so long as the restrictions are limited over time and are not shown to impede natural growth.

Although it has often proved an inadequate incentive, the property tax may, to some extent, be used to alleviate development pressures. The carrot alternative allows preferential taxation for open space land and is also used to encourage forestry. The stick alternative imposes extractive taxes to discourage mining or denies accelerated depreciation rights to developers seeking to build in areas desirable for preservation purposes.²³

A major disadvantage of tax incentives, however, is that they impose an additional burden on public tax revenues. At a time when environmentalists are being singled out as aggravating influences on an already dangerously inflationary economic situation, manipulation of the property tax may not afford the best solution to the problem of growth control.

An example of the last technique, passage of restrictive covenants between owners of private property and government, is the separation of ownership from urbanization rights.²⁴ Such "restrictive covenants" recognize the need and the reality, in terms of ever-increasing enforcement and expansion, of continued public circumspection [4 ELR 50079] of the once sacrosanct rights of private property owners to develop their land as and when they see fit.

Constitutional Limitations on Regulations

What should a town do if it wants to limit or control growth? What kind of ordinance would withstand Supreme Court scrutiny? These questions have been asked in the courts of Ramapo, New York; Petaluma, California; and Fairfax County, Virginia, among others. Seemingly conflicting decisions in these cases, however, have left little definitive precedent upon which future city or regional planners might rely. This section will attempt to examine the major constitutional limitations on land use regulation with the intent of presenting recommendations as to how those persons or groups interested in controlled growth might proceed without treading significantly on constitutional toes.

Since 1900, local governments have controlled land use by passing zoning ordinances, requiring public referenda to approve public housing, and establishing admission procedures in order to control the size of communities, avoid additional municipal costs resulting from the extension of public services and facilities, and exclude "undesirable" population groups.²⁵ The three guarantees of the United States Constitution with which these schemes of controlled growth might collide are:

(1) The right to travel

(2) The equal protection clause, and

(3) The taking clause of the Fifth Amendment.

The modern right of travel doctrine was first delineated by the Supreme Court in Edwards v. California.²⁶ Whereas Edwards and its progency had addressed themselves only to state and federal infringement of the right, United States v. Guest,²⁷ extended this interpretation to interference by private individuals as well. The right was further defined by Shapiro v. Thompson,²⁸ which applied the compelling state interest test requiring proof that government classifications which in any way burden the right to travel are essential to the promotion of a compelling governmental interest.

Since Shapiro, the travel doctrine has been further extended to intrastate travel and to admission procedures for public housing.²⁹ The right has more recently been applied to restrictive zoning and referendum laws, thereby becoming, in essence, a "mobility of the population" doctrine.³⁰

National Land and Investment Company v. Kohn,³¹ furthermore, discussed the applicability of this doctrine to zoning in the following dictum:

"Zoning … may not be used … to avoid the increased responsibilities and economic burdens which time and natural growth invariably bring."³²

With respect to the issue of the township's responsibility to potential residents, the court concluded that:

"… the township can [not] stand in the way of the natural forces which send our growing population into hitherto underdeveloped areas in search of a comfortable place to live. A zoning ordinance whose primary purpose is to prevent the entrance of newcomers … cannot be held valid."³³

With respect to the application of the right to travel doctrine to restrictive housing laws, one author concludes that the right is, in actuality, "… a unique guarantee of population mobility … [whose] … future will depend on the nature of the restrictions … and the imagination of the courts in constructively applying it to new situations."³⁴

The extent to which the right of travel is involved in controlled growth cases may be affected by the availability of shelter. Although the Supreme Court has recognized the tie between the right to travel and shelter, application of the principle depends largely on the facts of the case, including mobility rates, rates of family formation, and what is happening in surrounding communities.

One view is that while the right to travel may spell the end to no-growth or limited growth ordinances, it does not affect the zoning power. Ramapo was upheld only because it set no fixed limits. Petaluma was struck down because it did fix a limit of 500 new units per year.

An undercurrent of the above-discussed controlled growth decisions is the extent of a community's duty to assume its fair share of an area's low cost housing needs. But what is its "fair share," and within what area? In the Madison township (New Jersey) decisions,³⁵ Judge Furman held that a community cannot use the municipal zoning power to create an elitist community of high-income families with few children. On the contrary, he voiced a concern for the municipal duty to share in providing land for housing for the region's low and moderate income groups. Such a responsibility would extend not only to present needs, but would accommodate future population shifts on a regional basis as well. "Region" was defined as that area from which people would be drawn to [4 ELR 50080] a township in view of available employment opportunities and transportation facilities.³⁶

The extent of a community's "fair share" also is influenced by any history of prior exclusionary tactics. In this respect, the court's determination is not unlike that utilized in deciding whether a particular community is subject to discriminatory practices.

The fact that a community has a duty to provide facilities which will allow for growth (sewers, etc.) was alluded to in the Farmworkers Housing Project case (supra). Thus, the growth of the "Plymouth Rock Syndrome" — telling the Mayflower settlers they have to turn their ship around because, sorry, there are no facilities — will undoubtedly be subjected to increasingly unfavorable judicial scrutiny in the near future.

The current status of a local government's obligation under the Fourteenth Amendment and the Federal Fair Housing Law to remedy the housing problems of its low income and minority groups is best illustrated by Acevedo v. Nassau County.³⁷ This case also dealt with the issue of the legality of a public decision reversing plans to build needed housing on publicly owned land where such action has the clear and immediate effect of prolonging residential segregation by denying housing to low-income-minority citizens living in deteriorating buildings. According to the Suburban Action Institute of Yonkers, N.Y., "The Michel Field litigation (Acevedo) is extremely important because it tests the reach of the Equal Protection Clause in controlling local governmental prerogatives which interfere with low-cost housing opportunities."³⁸

The district court in January rejected the plaintiff's argument that the reversal was illegal, and this decision was upheld by a three-judge panel of the Second Circuit Court of Appeals in July. On July 30, 1974, SAI attorneys filed a petition requesting a rehearing en banc on the ground that the Second Circuit ruling is overly restrictive in its interpretation of the scope of the Equal Protection Clause. A final decision on the petition is pending.

Exploration of the "taking clause" of the Fifth Amendment, that private property shall not be taken for public use without just compensation, is popularly termed "the taking issue." The notion that government must compensate the private landowner in certain situations originated under circumstances of outright appropriation. The purpose of requiring compensation was primarily to erect a safeguard against arbitrary or tyrannical government conduct.

Concern over governmental regulation of land as requiring compensation, on the other hand, is a relatively recent phenomenon. Only since the turn of the century has the distinction between actual appropriation and mere regulation, long consistently maintained, become blurred. It has been suggested that this recent judicial innovation, that regulation which "goes too far" can amount to a taking, may reflect an historical progression toward the accelerated use of regulatory devices with a substantial "consequential" impact on property values.³⁹

The fact that it has never been the law that title confers the right to use land as one chooses is amply confirmed by the bounty or nuisance litigation, both public and private, and the existence of abatement statutes. Because property rights traditionally have not been deemed to be in conflict with quite extensive governmental regulation of the uses to which property can be put, therefore, there is no readily available judicial formula for determining when a regulation becomes a taking for Fifth Amendment purposes.⁴⁰ Such a determination, of course, must be made on an ad hoc basis, but four formulas have been proposed for deciding when a particular regulation requires compensation. The four theories are as follows:

(1) The physical invasion theory.

(2) The nuisance abatement theory,

(3) The balancing test, and

(4) The diminution of value theory.

The physical invasion theory is not concerned with the actual transfer of title but rather with the physical appropriation or invasion of the right to use and enjoy property.

Exemplary of the nuisance abatement theory is Hadacheck v. Sebastion,⁴¹ in which a use originally in-offensive and lawful became a "nuisance" because of changed conditions resulting from new growth and land use patterns in the surrounding area. Residential encroachment on a previously isolated factory is an example.

The balancing test weighs the extent of governmental intrusion (physically or in terms of the loss to the individual) against the public benefit to be derived from such action. The advantage of this theory is that it can accommodate almost any alleged taking. The disadvantage is scored by the observation that the theory is based on an essentially questionable doctrine, viz, that the public benefit is not relevant to whether compensation is required. On the contrary, "… it is precisely because private property is being taken 'for a public purpose' that the Fifth [amendment] requires compensation."⁴²

The diminution of value theory, as first defined by Justice Holmes in Pennsylvania Coal v. Mahon,⁴³ is the most prevalent theory for the demarcation of the compensation/no [4 ELR 50081] compensation boundary. The theory is based on a determination of how much economic loss government action has caused a private property owner to endure.

It is generally agreed that a significant decrease in purely speculative value is not a sufficient taking to require compensation. That is, it is usually conceded that an otherwise valid exercise of the police power is not unconstitutional merely because it deprives the owner of the land's most beneficial use.⁴⁴ This position is symptomatic of a recent judicial softening of the essentially hard-line approach espoused by Holmes' original statement of the theory.

The "reasonable remaining use" theory is a further step toward undermining a strict application of the diminution in value principle. Under the former theory, compensation will be rewarded or denied depending upon whether any reasonable use of the property remains in the face of restrictive legislation, "reasonable use" being any economically profitable (as opposed to any possible) use.⁴⁵

A more dramatic departure from the original Holmes position is seen in Candlestick Properties, Inc. v. San Francisco Bay Conservation and Development Commission,⁴⁶ a wetlands case. The court there held that refusal to allow the appellant, Candlestick Properties, Inc., to fill its bay did not necessarily amount to an undue restriction on the use of such property, although no economic use remained!

The most definitive work⁴⁷ to date on the taking issue concludes that the problem is one of conflict between the pursuit of a livable environment and the preservation, intact, of private property rights. Therefore, the authors advocate that Pennsylvannia Coal be overruled, cautioning, however, that if the purpose of a regulation is not perfectly clear on its face, the judge's sense of "reasonableness" will be tempered by the extent of individual losses.

The Fairfax Case

On August 12, 1974, Judge William G. Plummer of the Fairfax County Circuit Court ruled invalid the County's seven-month-old ban on processing plans for new construction in Fairfax.⁴⁸ In his memorandum opinion, the judge held that the Interim Development Ordinance (IDO), under which county officials had hoped to gain time to design a comprehesive plan to govern land use in the county over the next ten years, is inconsistent with the statutory and constitutional law of Virginia. In his view, the DIO operated to deprive property owners and developers attempting "… such use for periods of up to eighteen months."⁴⁹ Plummer stated, that the Board of Supervisors lacked both statutory authority and the necessary evidence to impose a "building ban."⁵⁰

Unfortunately, the judge negelected to address himself to many of the issues raised in the defendants' brief. The opinion did not even consider the fact that the present planning process is in need of improvement or the undeniable need to accommodate effectively and efficiently the long-range growth pressures on the County. The judge did not attempt either to distinguish or compare the Ramapo or Petaluma decisions and the crucial policy issues therein presented. For example, he did not take into account the holding of prior cases that a regulation is not unconstitutional if reasonably limited in time. Compare the Ramapo case in which the provisions are for a period of 18 years and hence, in the language of the court, of "definite duration" and therefore acceptable. In the Fairfax case, on the other hand, an 18-month provision is deemed unconstitutional.

In this author's view the Fairfax court missed an opportunity to clarify many growth issues. and the decision served only to perpetuate the "legal labyrinth" into which the courts have thrown such efforts at planning, be they good or bad. The resulting legal chaos can serve only to stifle any attempts at rational planning in an area dramatically in need of determined guidance.

Suggestions and Conclusions

While courts are still far from offering consistent rules of law affecting efforts to limit or control growth, it is possible to indicate steps which will serve to minimize the chances that controlled growth efforts will be overturned in court.

At the local and regional levels, the techniques available to control growth are: public acquisition of private property, taxation, and zoning and regulation under the police power. The trick is to determine which techniques, or combinations and variations thereof, will be effective and yet avoid transgressing the three constitutional limitations of the right to travel, the equal protection clause, and the taking clause.

The combination of techniques which a local or regional government chooses will depend upon what it wants to achieve. Of the three reasons underlying the motivation to adopt a no-growth stance (supra), only the desire to ensure a quality environment will survive a vigorous challenge in court.

What constitutes a "quality environment" will, of course, differ with the individual expectations of the community. A rural community may want to preserve its "character." such a desire, however, will not withstand court scrutiny unless a general welfare argument is presented to the court as opposed to one founded upon a purely private preference. Should the community be located [4 ELR 50082] near a unique conservation area, for example, it is likely that the court will listen to arguments based upon a potential threat to that area rather than a parochial "We have a nice little town here, see, and we'd like to keep it that way" approach.

The more urbanized community, on the other hand, may want to avoid the increased noise and air pollution levels, traffic congestion, and unsightliness that accompany unplanned development. Sewer moratoria frequently are imposed, but such an approach may be declared unconstitutional if not part of a positive commitment to a sewage treatment capital improvements program.

Zoning represents the more traditional approach to the control of development within an urbanized area. Outlying regions without such controls should be aware of the encroachment of the urbanized area before zoning laws are passed, since it is far more difficult to impose a zoning plan once developers have acquired land and made plans than at the point when the land is being subdivided. The cry of "taking" is much more prevalent in the former situation after capital has been committed and the new owners have acquired vested rights to develop.

The transfer of development rights is a useful concept where zoning does result in the deprivation of a land-owner's right to develop his/her land. For example, where a community so restricts construction in an estuarine area as to result in its owner taking the government to court because no reasonable economic use for the land remains, community officials should allow the property owner to sell his/her right to develop in the open market to an adjacent owner. The transfer of this right to a developer wishing to increase the density of a project on the adjacent land previously limited by minimum lot requirements might thus satisfy both parties and save the wetland. In effect, this technique allows the marketplace to compensate for a police power restriction.

Of particular usefulness to the urbanizing area is the Ramapo approach employing timing and sequential controls based upon an eighteen-year program of capital improvements in municipal services. In contrast to the Petaluma concept of numerical restrictions upon growth, the Ramapo plan allows growth to proceed in conjunction with an ongoing comprehensive community plan and capital budget program.⁵¹ "They seek not to freeze population at present levels but to maximize growth by the efficient use of the land, and in so doing testify to this community's continuing role in population assimilation."⁵² (Emphasis added).

The taxing power is of more limited usefulness. The Ramapo Plan includes tax relief provisions as a form of compensation for land blocked from development. Such tax relief provisions, however, contribute to the depletion of municipal coffers, which results in less money being available for land acquisition programs, and for municipal services in general.

Land acquisition programs provide the means by which the public sector buys up private property which is suitable for preservation purposes. Public purchase also is a method by which an area that has been repeatedly subdivided may be brought under one umbrella and resold to a developer. The advantage of this latter technique is that it makes possible a much larger scale of development, and the larger the scale, the greater the potential for clustering and setting aside open space areas.

Ecological and social factors also help determine the mix of land use techniques best suited to the needs of a particular locality or region. Stricter controls over, say, coastal development may increase housing pressures on other areas of critical environmental concern. The energy implications of larger lot or exclusive sorts of zoning may include higher rates of energy consumption the more dispersed the population becomes. For example, transportation costs will increase as more people commute over longer distances and more children are bused farther to school. Density credits or bonuses awarded for clustered development could serve as an incentive toward the lowered energy demands characteristics of high density developments.

First surveying the land with respect to its suitability for development and then implementing land use categories will serve to further encourage the amelioration of any negative environmental side effects stemming from use of the land.⁵³ The longer a comprehensive land use plan has been in effect, and the less it appears a hasty ad hoc solution, the more likely courts will be to find a legitimate use of the police power in the locality's attempt to limit its growth to its environmental carrying capacity.

Concerning the social repercussions of controlled growth policies, implementation of a regional tax base, increased revenue sharing, development of alternatives to the property tax as a means of financing educational and other public services, or awarding points to industry employing local residents will help to ensure that limited growth ordinances do not favor the wealthy at the expense pense of the poor. Public housing bonds included in bonds for public acquisition of open space can contribute to compensating the poor for increased suburban rents and land costs resulting from the decrease in construction of new housing units. It is noteworthy that the Ramapo plan includes provisions for a low-income housing program.

Despite the accommodation of such social and environmental factors into the municipal land use plan, however, in the face of substantial housing needs or demands — in the case of a growth corridor, for example — [4 ELR 50083] it becomes increasingly difficult for a locality to limit population growth since the complaints of those seeking admittance that they have nowhere else to go become increasingly valid. Under such circumstances, city fathers might have to resort to more subtle means of discouraging potential residents - by refusing to appropriate funds for amenities which might attract new residents, for example.

So where are we now? Confused.⁵⁴ There are certain mechanisms which local governments may utilize to limit or control growth with a fair degree of assurance that their actions will survive judicial review. But the precise limitations on the growth control powers of local governments are still not discernible. In light of the controlled growth decisions to date — Ramapo, Petaluma, Fairfax County — it remains for a definitive Supreme Court decision, hopefully, to provide a way out of the labyrinth in which localities, beset by developmental pressures and uncertain how to maintain control of their destinies, now find themselves.

1. It should be noted at the outset that the spirit and ideas of Professor Robert H. Freilich of the University of Missouri, Kansas City Law School pervade this discussion, although he is nowhere specifically cited. Nicknamed by his opponents the "Johnny Appleseed of No-Growth," he has contributed much effort to catapulting what the author terms the controlled growth approach to land use planning into the minds and onto the drawing boards of planners throughout the nation. He has served for instance, as counsel in the drafting of both the Ramapo Plan and the Fairfax County PLUS Program.

2. 4 ELR 20454 (N.D. Cal. Apr. 26, 1974). On July 12, Supreme Court Justice William O. Douglas, acting in his capacity as Circuit Justice, temporarily stayed the District Court decision on Petaluma's growth control program pending an appeal on the merits to the Ninth Circuit.

3. Nicol, "Building Ban May Be Eased in Fairfax," The Washington Post, June 15, 1974 at D-1.

4. Nicol, "Land-Use Plan Draws Wide Interest," The Washington Post, September 1, 1974 at D-1.

5. "Perspectives on Environmental Quality," The Fourth Annual Report of the Council on Environmental Quality (1973) at 220; M. Agelasto, "No-Growth and the Poor — Equity Considerations in Controlled Growth Policies," Department of City and Regional Planning, The University of California at Berkeley (Draft, March 1973) at 1.

6. For example, the State of Oregon has launched an advertising campaign to the effect that, "Oregon is a nice place to visit but you certainly wouldn't want to live here." Similarly, pressure from Colorado bureaucrats is being used to quell John Denver's vocal enthuriasm for their state.

7. Golden v. Planning Board of the Town of Ramapo, 2 ELR 20296 (N.Y. Ct. App. 1972).

8. See also Josephs v. Town Board of Clardstown, 24 Misc. 2d 366, 198 N.Y.S.2d 695 (1960) and Padover v. Township of Farmington, 132 NW..2d 687, 374 Mich. 622, (1965), in which the courts recognized the right of a municipality to restrict development in accordance with the ability of the town to provide essential services.

9. See National Land and Investment Co. v. Easttown Township Board of Adjustment, 215 A.2d 597, 419 Pa. 504 (1965) and Girsh Appeal, 263 A.2d 395, 437 Pa. 237 (1970).

11. Fauquier County, Va., Emergency Ord. for 60 days (later extended for four additional months) (March 8, 1973).

12. 273 A.2d 880 (Conn. 1970).

13. United Farmworkers of Florida Housing Project, Inc. v. Delray Beach, 4 ELR 20497 (5th Cir. Apr. 12, 1974).

14. National Land and Investment Co. v. Easttown Township Board of Adjustment, 215 A.2d 597, 419 Pa. 504 (1965).

15. But see Steel Hill Development, Inc. v. Town of Sanbornton, 465 F.2d 956 (1st Cir. 1972), in which the court upheld the town's desire to preserve its rural character when faced with unnatural growth pressures, such as second home developments.

16. R. Hildreth, "Summary of Land Use Regulation in the State of California," prepared for the Environmental Quality Committee of the Young Lawyers Section of the American Bar Association (October 1, 1973).

17. Smith & Boyer, Survey of the Law of Property (1971) at 21.

18. Cal. Stat. Ch. 211 (1919) as amended by Cal. Stat. Ch. 1763 (1961).

19. The Use of Land: A Citizens' Policy Guide to Urban Growth (W. Reilly, ed. 1973).

20. Id. at 15.

21. Howard, "The Population Density Crisis," 10 Cal. L. Rev. 147, 154 (1973).

22. R. Lamm & S. Davison, "The Legal Control of Population Growth and Distribution in a Quality Environment: The Land Use Alternatives," 49 Denver L.J. 1 (1972).

23. Reitze, Environmental Planning: Law of Land and Resources (1974) at 68.

24. Hildreth, supra n. 16 at 22.

25. "The Right to Travel and Its Application to Restrictive Housing Laws," 66 Nw. U.L. Rev. 635, 636 (1971).

26. 314 U.S. 160 (1941).

27. 383 U.S. 745 (1966).

28. 394 U.S. 618 (1969).

29. See, for example, Cole v. Housing Authority of City of Newport, 312 F. Supp. 692 (D.R.I. 1970), aff'd. 435 F.2d 807 (1st Cir. 1970).

30. "The Right to Travel and Its Application to Restrictive Housing Laws," supra, n. 25 at 659.

31. 215 A.2d 597, 419 Pa. 504 (1965).

32. Id. at 610 and 528.

33. Id. at 612 and 532.

34. "The Right to Travel…," supra, n. 25 at 668.

35. Oakwood at Madison, Inc. v. Township of Madison, 117 N.J. Super. 1 (Law Div. 1971); 128 N.J. Super. 438 (Law Div. 1974).

36. Peracchio, "Court Rejects 'Elite' Zoning," Bergen New Jersey Record, April 30, 1974.

37. __ F.2d __ (2d Cir. July 2, 1974).

38. Suburban Action Institute, Summary of Litigation Program, September 10, 1973 at 2.

39. "Perspectives on Environmental Quality," supra, n. 5 at 128.

40. Goldbaltt v. Hempstead, 369 U.S. 590, 594 (1962).

41. 239 U.S. 394 (1915).

42. "Perspectives on Environmental Quality," supra, n. 5 at 219.

43. 260 U.S. 393 (1922).

44. Goldblatt v. Hempstead, 369 U.S. 590, 594 (1962).

45. Morris County Land Improvement Co. v. Parsippany Troy Hills, 193 A.2d 232, 242 (N.J. 1963).

46. 3 ELR 20446 (Cal. Ct. App. 1970).

47. Bosselman, Callies & Banton, The Taking Issue (1973).

48. Horne v. Board of Supervisors of Fairfax County, No. 31309 (Va. Cir. Ct. Fairfax Cty. Aug. 12, 1974).

49. Id., Memorandum Opinion at 5.

50. Id.

51. Open letter from Professor Freilich published in Land Use Planning Reports (Feb. 25, 1974).

52. Golden v. Planning Board of the Town of Ramapo, 2 ELR 20296, 20300 (N.Y. Ct. App. 1972).

53. See Schnidman, "Growth Management in Ramapo and Petaluma," Land Use Planning Report 3 (Aug. 1974).

54. See Schindman, "Growth Management in Ramapo and Petaluma," Land Use Planning Report 3 (Aug. 1974).

Controlled Growth as a Planning Alternative: An Overview1

Controlled Growth as a Planning Alternative: An Overview¹