Maine Townsman, May 1977)
by Randall Arendt, Town Planner,
Southern Maine Regional Planning Commission
Many local taxpayers and town officials in southern Maine and southeastern New Hampshire are realizing that zoning ordinances and subdivision review procedures do not solve, or even address, one of the most significant aspects of land development: the scale and rate of population growth. Growth is a significant issue because new residents increase the demand for municipal services, which almost always strains town budgets, causing everyone's property tax to rise, because tax revenues from typical single-family homes do not pay the full cost of providing public services and facilities for the new residents. This is especially true of new development which is located at some distance from these facilities, necessitating longer trips for school buses, snowplows, firemen, police, etc. A current analysis relating municipal expenditures to population growth has shown that towns of 1,000 or fewer persons are particularly vulnerable to tax increases as a result of residential subdivision development. (An article in the June issue of MAINE TOWNSMAN will detail the findings of this study, and will present a method to enable town officials to estimate the net cost to their town which new subdivisions would impose, after property taxes are paid).
The Cost of Growth
Several recent studies in this country and in England have demonstrated that suburban, and especially rural, "sprawl" development is the most expensive land-use pattern for towns to service. This finding has great significance for towns which have attempted to slow their growth through "large-lot zoning," in which the minimum lot size in "Farm and Forest" zones is typically three, five or ten acres. Although this technique can sometimes be effective in reducing the scale or rate of population growth, the cost of servicing these new houses is higher on a per dwelling basis, and potential savings to the town are lost. In addition, large-lot zoning increases the cost of new homes (thereby limiting access to higher income groups), and also suburbanizes the countryside (except where setbacks are very deep and tree cutting is minimized between houses and the road).
Appreciation of the problems arising from rapid residential growth, and growing awareness that zoning and subdivision review procedures do not deal effectively with the growth issue, have let a number of towns in southern Maine and southeastern New Hampshire to consider and adopt the relatively simple technique of limiting the number of residential building permits issued in any one year. This approach has survived numerous court challenges and has been found to be a legitimate exercise of the local police power to regulate development in the public interest, provided that:
1) The permitted rate of growth approximates the regional growth rate over the past five or ten years.
2) Economic or racial discrimination does not result.
3) The selection method for determining which applicants will receive building permits is fair and rational, preventing discretionary application.
Because the regional growth rate is likely to change over time, each town employing the growth-management technique must review its permitted growth rate periodically. An exception to the basic rule that towns may not adopt a growth rate below the regional average would most likely be justified only if the lower rate were necessitated due to a small spare capacity in certain essential public facilities (such as sewage treatment works, or schools). However, adoption of a lower rate should be limited in time, and related to a Capital Improvement Program to expand the inadequate capacity.
One phrase which recurs frequently in court cases on this subject is the "rational relationship to legitimate state interests." Growth management regulations must bear such a relationship. Protection of the public welfare constitutes a legitimate state interest, and "the city's interest in preserving its small town character and in avoiding uncontrolled and rapid growth falls within the broad concept of the 'public welfare'." Const. Industry Assn v. City of Petaluma, 522 F.2d, 897, 1975. The court in the Petaluma case stated that it would not act as a "super zoning board" to determine the wisdom of the regulation: "The reasonableness, not the wisdom, of the Petaluma Plan is at issue in this suit." In upholding the growth ordinance, the court found that local zoning authorities may "restrict uncontrolled growth," and that it (the court) should "afford zoning authorities considerable latitude in choosing the means by which to implement such purposes." Although the court may have been pleased that the Petaluma Plan specified that 8 percent to 12 percent of new dwelling units shall be for low and moderate income families, it had previously upheld growth ordinances elsewhere which contained no such provision. Ybarra v. City of/Town of Los Altos Hills, 503 F.2d 250, 1974, and Village of Belle Terre v. Boreas, 39 L.Ed.2d 797, 1974. In these cases, "The preservation of the town's rural environment" was found to be a legitimate governmental interest.
Although such an objective might not be judged as significant in Maine as it was in southern California (where these cases occurred), another decision from New Hampshire demonstrates a sympathetic judicial attitude toward the efforts of a small rural town to protect itself from substantial development which would "pose substantial financial burdens on the town for police, fire, sewer and road service" Steel Hill Dev't Inc. v. Town of Sanbornton, 469 F.2d 956. However, the Court also made it clear that towns such as Sanbornton "Should begin to plan with more precision for the future, taking advantage of numerous federal or state grants" to assist them to expand their facilities and services so that they could accommodate population growth in an orderly manner. Any town adopting this growth management technique should therefore update its Comprehensive Plan and devise a Capital Improvements Program to demonstrate its willingness to accept continued growth at a reasonable rate.
The Arundel Growth-Management Ordinance was enacted to help establish a predictable growth rate in the town. The photographs, scenic open space [photo included in printed version only], and a development lot for sale [photo included in printed version only], illustrate the point of contention addressed by the Arundel growth ordinance.
Arundel: First in Maine
Arundel is the first and, as yet, only town in Maine to have adopted a growth-management ordinance, although several other towns in York County and the Greater Portland area are actively considering this option. Some of these towns do not yet experience excessive growth pressure but want to protect themselves from such situations. (Hiram recently adopted an ordinance establishing "quotas" for construction within subdivisions, but setting no limit for house-building on individual lots; therefore, it cannot be described as a true "growth-management" technique). Specific aspects of the Arundel ordinance are discussed toward the end of this article.
For the record here, suffice it to say that Arundel's population increased by 46 percent, to 1,925 persons, during the 1970-75 period, compared with growth rates of 19 percent in the SMRPC region and 30 percent in the five-town sub-region. If the maximum permitted number of houses were built in Arundel during the next five years, the town's growth rate would be about 30 percent. This is a significant reduction of recent growth trends, and represents a relatively predictable growth rate which enables the town to plan for an appropriate level of provision in municipal services.
This growth-management technique also possesses the merits of being both simple to administer and easily adaptable to the different needs of individual towns. Although originally employed to assist large towns which were fast becoming small cities, the approach has since been simplified and refined for use by small, rural communities. It has especially great potential as a tool to encourage the realization of a number of important planning objectives, which would otherwise be very difficult to accomplish, including: (1) preservation of open space; (2) location of new housing in areas where town services can be most easily provided; (3) location of new housing on the most appropriate soils for building and sewage disposal; and (4) provision of variety in the housing market.
Development which accomplishes these objectives can be encouraged through a building permit selection procedure which awards points on the basis of land area protected by conservation easements, the zone in which the development is proposed, soil ratings, and the size or type of dwelling proposed. (Some towns use the tool to encourage houses with fewer bedrooms, or, in exempting multi-family dwellings from the selection procedure, to encourage condominiums or garden apartments. Other towns may use it to do the reverse). It can also be used to give limited preference to local residents who have owned and paid taxes on a particular piece of land for many years. A typical points system is described in the accompanying table:
Typically, the growth-management system is administered by the Planning Board, which issues a limited number of "provisional building permits" every year, selecting applications on the basis of agreed criteria. Holders of these "provisional" permits then apply for a plumbing permit from the plumbing inspector and a "final" building permit from the Building Inspector. If his proposed construction does not meet the standards of the plumbing code or the building ordinance, his "provisional" building permit is returned to the Planning Board which may then issue it to another applicant.
Arundel: Case Study
In very small rural towns where there is no population nucleus or central facilities, building permits could be issued on a "first-come, first-served" basis. Indeed, in Arundel, a variation of this system was felt to be the most appropriate. That town is also using the technique to maintain the existing balance between speculative houses and those built for known customers intending to reside there. Of the 36 provisional building permits available in any one year, nine are for "spec" houses and 27 are for "custom" homes. Permits for dwellings in the second category are being issued on a first-come, first-served basis. In order to avoid a "stampede," a provision has been introduced whereby such permits will expire within three months if construction has not started, i.e., foundations must be completed within three months of application unless other conditions have not permitted such construction. This provision should discourage people from applying for provisional building permits until they are ready and able to start building. In the event that applications exceed available permits, the several applicants competing for the last permit will be selected by giving preference to those who have paid taxes longest on the land in question.
On the other hand, applications for speculation houses are being selected only once a month, with a maximum of three building permits being issued in any single month and no more than two being granted in that month to any one person or firm (unless only one person or firm applies). Applications are selected on the basis of a point system relating to the number of years which the applicant has paid taxes on the subject property (four points per year, with three more points for every year he has paid taxes on the property as subdivided land) and the number of months which the applicant has had his application "in process" with the Planning Board (two points for each month). "This point-earning schedule recognizes the valuable contributions of long-time residents but also gives newer developers in town the opportunity to gain points and so not be locked forever at the bottom of the permit application pile."
In order to allow developers time to collect several permits for speculation houses (thereby enabling them to build a group of houses simultaneously, lowering construction costs), provisional permits for such houses have a three-year life before expiry. Another unique provision of the Arundel ordinance is that it allows "special exceptions" to be made, whereby the Board of Appeals may grant a provisional building permit to a town resident who wishes to move from his present dwelling into a new one which he proposes to build within the town. This exception was incorporated to avoid hardship for residents who could otherwise not be assured of obtaining provisional building permits immediately after selling their own houses.
The unusual provisions of the Arundel growth-management ordinance reflect local considerations and the give-and-take of the democratic political process. The ordinance went through five drafts before it was adopted, and at every stage public input was solicited and incorporated. It is probably fair to say that Arundel (which as yet has no zoning) would not have the protection of a growth-management ordinance today if the planners had not been as interested in hearing everyone's concerns and eliminating all potential unfairnesses. Although officially adopted, the ordinance will be reviewed after not more than nine months of operation, in order to remedy any problems in its implementation.
The growth-management techniques discussed above are based on principles established by several landmark court decisions; they are the simplest and most effective tools yet devised for regulating population growth; and they are completely adaptable to suit the needs of any particular town. They also provide a unique opportunity to encourage growth in the most suitable locations and improve the ability of towns to shape their own futures, so that their futures will not necessarily be shaped for them by narrow commercial interests and unpredictable market forces.