Townsman, May 1977)
by Orlando E. Delogu, Professor of Law
University of Maine School of Law
There is a growing tendency to utilize zoning and other police power controls not to avoid real and immediate dangers or threats to the public's health, safety, or general welfare but to avoid the very responsibilities which municipal governments are supposed to deal with and/or to avoid changes in the character of the community which additional development would give rise. In spite of the fact that a majority of residents in a town like the town as it is they may not legislate the existing status-quo into permanent existence.
It is fundamental in a free and democratic society that people may move about as they choose, see e.g., Shapiro v. Thompson, 394 U.S. 618 (1969). Moreover, the right to use one's property should be as unfettered as possible. That is not to say reasonable police power controls may not be imposed--certainly they may. But, every control must be rationally related to and intended to accomplish some legitimate purpose of government. Government is not charged with keeping the tax rate down. Nor may government avoid building new schools, roads, sewer lines. etc. in areas where our expanding population chooses to settle, see e.g., Oakwood at Madison, Inc., vs. TP. of Madison, 283 Atlantic 2d 353 (1971); Appeal of Girsh, 263 Atlantic 2d 395 (1970); National Land and Investment Company v. Kohn, 216 Atlantic 2d 597 (1965). It is no answer to say these are costly facilities and services which cannot be afforded. Government has taxing powers which must be used and government can through a variety of special assessments, user charges, or subdivision requirements impose a large portion (but not all) of the costs of new development on those (developer and new home buyer) who give rise to and benefit from the facilities, services and improvements provided.
Finally, government may certainly avoid the harms which uncontrolled development may create. Fragile land areas may be protected, air and water pollution may be guarded against, unsafe conditions need not be tolerated and development at density levels which invite problems may be prevented. But, controls designed to achieve these objectives in most situations need not (and if they need not, they may not) go so far as to preclude or nearly preclude development within a given municipality. Finely drawn control mechanisms justified by planning data and existing physical conditions can be sustained. Controls which go beyond this, which legislate local biases or exclude certain economic groups, housing types, or development activities on the theory that we don't want them or we're better off without them, are almost certainly impermissible.
I fear that some judicial decisions, see e.g., Miller v. the Board of Public Works, 234, P. 381 (1925); Steel Hill v. Town of Sanbornton, 469 F.2d 956 (1972); Golden v. Town of Ramapo, 285 N.E. 2d 291 (1972); Construction Industry Association v. City of Petaluma, 522 Fed. 2d 897 (1975), which have sustained development moratoriums, large lot zoning, and growth controls of one sort or another may have been misunderstood by some planners and local government leaders. Cases of this sort must be read in context. It is the unique context that sometimes enables a court to sustain a stringent control measure that under any other circumstance it would almost certainly find impermissible, an overreaching exercise of police power.
.Let us look at some specific examples. A number of Maine towns have recently imposed building moratoriums. Most of these do not meet the criteria for an acceptable moratorium outlined in the Miller case over 50 years ago. Delay for delay's sake is not permitted. Nor is it permissible to ward off a particular development project by imposing a moratorium. It follows that moratoriums predicated on the theory that an existing population is large enough or that the town does not wish to bear the expense of expanding schools, sewer and water lines, etc. are also impermissible. Miller established the limited bases upon which a moratorium may be sustained. All of these factors must be present. The town must have experienced recent growth which has stressed its ability to sustain additional growth. The town must be at the point of absolute capacity in terms of its ability to meet police, fire, school, sewer and water needs. The town's existing land use controls must be shown to be inadequate to deal with the growth pressures being thrust upon them. In these circumstances a moratorium of relatively brief duration (six months to a year) may be enacted to permit the town to appropriately modify its land use control ordinances and to develop strategies to enable the town to expand necessary services (police, school, fire, sewer, water, etc.). If the town just wants some breathing room and is not in fact taking steps to deal with the problems confronting it, the moratorium is impermissible, see e.g., Metro Realty v. County of El Dorado, 35 Cal. R. 480 (1963).
Large lot zoning is another device which many Maine towns are turning to as a means of keeping overall population densities low and discouraging development activities. The Sanbornton case is often cited in support of such a strategy. But Sanbornton does not stand for such a proposition. Judge Coffin characterizes Sanbornton's planning process and controls as "crude." He suggested that they could only be sustained as temporary or interim control measures allowing the town a brief period of time in which to develop more rational controls predicated on sound and empirically verifiable planning data. He was troubled by the evidence of exclusionary motive which permeated the town's action. But, he was prepared to give them some time to put their house in order. He cautioned:
"On reviewing the record, we have serious worries whether the basic motivation of the town meeting was not simply to keep outsiders, provided they wished to come in quantity, out of the town. We cannot think that expansion of population, even a very substantial one, seasonal or permanent, is by itself a legitimate basis for permissible [government] objection."
Where physical justifications exist (poor soils, steep slopes, infeasibility of sewer construction, etc.) large lot zoning may be necessary and sustainable. But in any other circumstance, it is a suspect exclusionary device. When adequate documentation as to the need for large lot zoning is not provided, courts more recently have shifted the burden onto the town to justify such control measures rather than leaving the burden on the complaining party to show the invalidity of such measures, see e.g., Bristow v. City of Woodhaven, 192 N.W. 2d 322 (1971); Appeal of Kit Mar Builders, Inc., 268 Atlantic 2d 765 (1970).
In both the Ramapo and Petulama cases growth control mechanisms were sustained. But in both situations, the towns were able to show that they had assimilated staggering new growth in the years prior to the imposition of these controls and that the controls themselves represented not an abdication of the responsibility to assimilate still, more growth in the years ahead, but the desire to slow down the rate of growth to a high but somewhat more tolerable level. In both cases a wide range of housing types were permitted within the town. In both cases the towns were expanding all municipal facilities at a rapid rate and in both cases the courts warned that should the town fail to respond to its commitments made in the context of imposing the controls which had been sustained, the court would view sympathetically developers' suits seeking to invalidate these measures. Few, if any Maine towns, meet the criteria suggested in these cases for sustaining growth control devices.
In conclusion, towns should be encouraged to engage in the broadest possible range of comprehensive planning efforts. They may and should be encouraged to enact any and all reasonable controls which avoid harms and protect the public's health, safety or general welfare, but they must realize, as the court in the Kohn case suggested, that:
Zoning is a tool in the hands of governmental bodies which enables them to more effectively meet the demands of evolving and growing communities. It must not and cannot be used by those officials as an instrument by which they may shirk their responsibilities. Zoning is a means by which a governmental body can plan for the future--it may not be used as a means to deny the future...
Zoning provisions may not be used to avoid the increased responsibilities and economic burdens which time and natural growth invariably bring.