Agenda - Planning Commission - 06/03/1997

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One obvious issue affecting antiquated subdivisions is vested rights. Precisely because state court rulings vary with regard to the point' at which landowners acquire the right to develop, that question is somewhat beyond the scope of this article. But it is definitely an issue local planners must consider when examining the fate of substandard lots in relation to zoning changes subsequent to subdivision approval. At what point have they induced the landowner to rely on a governmental action to undertake expensive obligations that create a right to continue with planned development? As a general rule, however, zoning alone is not a governmental act that establishes vested rights or permits equitable estoppel. Zoning, by its nature as a generally applicable legislative act, does not give specific final approval for building or development on an individual lot or sire. It merely establishes the parameters for what will be permissible. When and Where The old adage concerning profitable real estate development is "location, location, location." For local governments, however, the better slogan might be "timing, timing, timing." Antiquated subdivisions are the continuing evidence of platting that often rook place far ahead of the development curve. Ever since the . N ew York Court of Appeals sanctioned the phasing of development in Golden v. Planning Board of Ramapo, 285 N.E.2d 291 (N.Y. 1972), a variety oflocal governments have been devising means to impose some rationality on the timing of their development. Ramapo enacted a series of three six-year plans to ensure that public physical and financial resources would be able to keep pace with rapid population growth. Other jurisdictions have developed variations on that simple scheme, all in an effort to manage growth. Antiquated subdivisions have posed a special problem because they involve preexisting lots, some of whose owners will want to build even as others are content to defer such plans or to speculate. Thus, tools generally calibrated to achieve growth management often require some recalibration for these special circumstances, with unique refinements for particular local s~tuations. Adequate public facilities ordinances (APFOs). Combined with strict controls related to such matters as septic tanks and lot coverage, APFOs (see "Adequate Public Facilities Ordinances," May 1991, and Adequate Public Facilities OrdinanceS and Transportation Management by Mark S. White, PAS Report No. 465) may cause developers or individual landowners to defer building plans until the local government is ready to extend public infrastructure in the form of water and sewer lines to the locations they own. Theit alternative, if they wish to build sooner, is to build and pay for it themselves. These measures essentially let the market do most of the work of steering development by making dispersed or leapfrog development considerably more expensive. Impact fees based on distance. It unquestionably costs local government more to extend infrastructure and public services to locations further removed from the center of current development patterns. In the 1983 article, Schnidman and Baker proposed basing some impact fees on distance to reflect these costs. It appears that Florida officials are listening because that same recommendation recurs, specifically with reference to transportation, in a July 1996 report by the South Florida Regional Planning Council (SFRPC) on its Eastward Ho! initiative. SFRPC is administering Eastward Ho! in cooperation with the Florida Department ofCommuniry Affairs as an outgrowth of the 1995 report of the Governor's Commission t::::O ! " f for a Sustainable South Florida. It is a comprehensive program 't aimed at shifting development from western areas of the three SFRPC counties (Broward, Dade, and Palm Beach) to more densely developed easterly areas, in part to reduce environmental pressures on the threatened Everglades ecosystem. Information on Eastward Ho! is available on the SFRPC World Wide Web site, www.sfrpc.com. Like APFOs, this concept relies on a government-created market mechanism to force landowners to reassess the desirability of developing now rather than waiting until development reaches their doorstep, thus lowering the cost of extending necessary public services. In light particularly of recent U.S. Supreme Court cases, however, this mechanism faces potential problems of "rough proportionality" for evaluating the necessary "nexus" between these fees and the public need created by the proposed land use (see Dolan v.City of Tigard, 114 S. Ct. 2309 [1994]). r;' " y, u .:; t " ~'. The road signs in this Colorado subdivision offer mute testimony to the need for better controls on the timing of subdivision approvals. Transfer of development rights. Many lots in antiquated subdivisions are simply unbuildable according to current zoning and environmental standards. Where ownership is dispersed, however, many people feel they have a stake in building anyway, maybe not now, but some day. It is a tricky business for planners to help them realize thanhat day may never come. To resolve this problem, some jurisdictions have turned to TOR programs as a means of helping such landowners reclaim some value from their investments. By establishing some development values for the lots and then allowing the owners to sell these rights to others holding land in more desirable locations, governments can ameliorate the potential takings problems they might orherwise encounter. These exchanges may take place direcdy from seller to buyer or may occur through a government-managed brokerage of development rights. We will conclude by briefly reviewing two programs and the legal challenge that threatens one of them. ".'.!.., "-".:;"1 .};~ .. '~'::(' . ~~~~ .;.;.. .~:-~... '. ~ . }.- ~ .' ':~-.', 3 ....