March 21, 2005
COMMENTARY: Room to grow | York County towns struggle with the legality of residential growth caps
By David Versel
Senior planner, Southern Maine Regional Planning Commission
Here's the scene: You just bought your dream building lot in York County ˆ a beautiful parcel in a wonderful new subdivision just two miles from the ocean. You go down to town hall to apply for a building permit. The code enforcement officer tells you, "Sorry, you have to get a growth permit first, and our waiting list for subdivision lots is two years long. I'll see you in 2007."
This story has become all too common in York County. As of this month, 17 of the 29 municipalities in the region have a limit on the number of new housing units that may be built in any one year. In many towns, the wait to obtain a growth permit is now, in fact, as long as two years.
The reason why so many towns have turned to growth caps is the unrelenting wave of residential growth pressure that has hit the region since the mid-1990s ˆ a wave that has gotten larger and stronger since 2000. From 1990 to 1999, there were an average of 939 permits for new housing units issued each year in York County. From 2000 through 2003, the annual average has been 1,509 units. In other words, the amount of new housing units built each year has gone up 60% this decade.
With the demand for new housing showing no signs of letting up, slowing the pace of growth has become a politically popular move for many towns to make. Citing a variety of reasons ˆ fiscal limitations, concerns about overcrowded schools, the potential loss of character ˆ municipal leaders have no problem selling their citizens on the need to slow growth. Whenever growth cap ordinances show up on local ballots, they tend to pass by margins of 80-20 or greater.
Though growth caps remain popular with municipal government leaders, many critics have emerged in state government, as well as in the private sector. Critics of growth caps argue that slowing the rate of growth has two major negative effects. First, by limiting the amount of new housing that can be built, growth caps reduce the availability of affordable housing. Second, by artificially stifling demand, they shift development to other jurisdictions that do not have growth caps, thus contributing to regional sprawl.
The Maine State Planning Office is leading the effort at the state level to combat the negative effects of growth caps through its oversight of local comprehensive plans. The state's growth management laws stipulate that any municipality seeking to regulate land use must have local plans and ordinances that comply with the state's goals for growth management. Thus, SPO has the authority to determine whether or not a town's growth management strategies, including growth caps, comply with state law.
SPO's policy on determining the validity of growth caps is clear: If a town wants to permanently limit its rate of growth, it must thoroughly document the fiscal reasons why it simply cannot grow faster than a certain pace. The effect of this policy is to set the bar extremely high for towns that wish to keep their growth caps in place for the long term.
The new reality in York County is this: Towns that have growth caps today are unlikely to be able to retain them for very long. In 2004, the town of Wells found this out the hard way. A developer with an approved subdivision sued the town on the grounds that its growth cap was illegal because its comprehensive plan was not consistent with Maine's growth management laws. Though the town ultimately settled out of court with the plaintiff, a letter from Superior Court Justice Paul Fritzsche written during the proceedings stated, "There is a serious question regarding the validity of the town's growth ordinance. The town is advised to carefully and expeditiously consider whether it wishes to amend its ordinances rather than risk a decision from a court striking down its ordinance."
In other words, the court made it clear that the town of Wells was treading on thin ice by enforcing a growth cap without having a comprehensive plan that is consistent with the state growth management statute. The town responded by laying out a strategy in its comprehensive plan to phase out its growth cap over the next three years and replace it with a more equitable system of managing growth. The State Planning Office recently endorsed this approach, and ruled in early March that the town's comprehensive plan was consistent with state law.
Though permanent, town-wide growth caps are not likely to be legally sustainable for the long term, towns do have many options at their disposal for managing growth. These include:
ˆ A differential growth cap that allows unlimited growth in areas designated in the local comprehensive plan as growth areas, but limits growth in other parts of town.
ˆ Stronger zoning incentives to direct development to areas with public infrastructure in place.
ˆ Impact fees that force new development to finance the additional public capital investments necessitated by growth.
ˆ Requiring new subdivisions to be phased so that no more than a specified number of units may be built in one development in any one year. This system was recently enacted by the town of Berwick to replace its growth cap.
Moving beyond growth caps may prove difficult for many towns. But the end result will hopefully be a more equitable and predictable way of managing growth, one that better serves all parties.
Here's the scene: You just bought your dream building lot in York County ˆ a beautiful parcel in a wonderful new subdivision just two miles from the ocean. You go down to town hall to apply for a building permit. The code enforcement officer tells you, "Sorry, you have to get a growth permit first, and our waiting list for subdivision lots is two years long. I'll see you in 2007."
This story has become all too common in York County. As of this month, 17 of the 29 municipalities in the region have a limit on the number of new housing units that may be built in any one year. In many towns, the wait to obtain a growth permit is now, in fact, as long as two years.
The reason why so many towns have turned to growth caps is the unrelenting wave of residential growth pressure that has hit the region since the mid-1990s ˆ a wave that has gotten larger and stronger since 2000. From 1990 to 1999, there were an average of 939 permits for new housing units issued each year in York County. From 2000 through 2003, the annual average has been 1,509 units. In other words, the amount of new housing units built each year has gone up 60% this decade.
With the demand for new housing showing no signs of letting up, slowing the pace of growth has become a politically popular move for many towns to make. Citing a variety of reasons ˆ fiscal limitations, concerns about overcrowded schools, the potential loss of character ˆ municipal leaders have no problem selling their citizens on the need to slow growth. Whenever growth cap ordinances show up on local ballots, they tend to pass by margins of 80-20 or greater.
Though growth caps remain popular with municipal government leaders, many critics have emerged in state government, as well as in the private sector. Critics of growth caps argue that slowing the rate of growth has two major negative effects. First, by limiting the amount of new housing that can be built, growth caps reduce the availability of affordable housing. Second, by artificially stifling demand, they shift development to other jurisdictions that do not have growth caps, thus contributing to regional sprawl.
The Maine State Planning Office is leading the effort at the state level to combat the negative effects of growth caps through its oversight of local comprehensive plans. The state's growth management laws stipulate that any municipality seeking to regulate land use must have local plans and ordinances that comply with the state's goals for growth management. Thus, SPO has the authority to determine whether or not a town's growth management strategies, including growth caps, comply with state law.
SPO's policy on determining the validity of growth caps is clear: If a town wants to permanently limit its rate of growth, it must thoroughly document the fiscal reasons why it simply cannot grow faster than a certain pace. The effect of this policy is to set the bar extremely high for towns that wish to keep their growth caps in place for the long term.
The new reality in York County is this: Towns that have growth caps today are unlikely to be able to retain them for very long. In 2004, the town of Wells found this out the hard way. A developer with an approved subdivision sued the town on the grounds that its growth cap was illegal because its comprehensive plan was not consistent with Maine's growth management laws. Though the town ultimately settled out of court with the plaintiff, a letter from Superior Court Justice Paul Fritzsche written during the proceedings stated, "There is a serious question regarding the validity of the town's growth ordinance. The town is advised to carefully and expeditiously consider whether it wishes to amend its ordinances rather than risk a decision from a court striking down its ordinance."
In other words, the court made it clear that the town of Wells was treading on thin ice by enforcing a growth cap without having a comprehensive plan that is consistent with the state growth management statute. The town responded by laying out a strategy in its comprehensive plan to phase out its growth cap over the next three years and replace it with a more equitable system of managing growth. The State Planning Office recently endorsed this approach, and ruled in early March that the town's comprehensive plan was consistent with state law.
Though permanent, town-wide growth caps are not likely to be legally sustainable for the long term, towns do have many options at their disposal for managing growth. These include:
ˆ A differential growth cap that allows unlimited growth in areas designated in the local comprehensive plan as growth areas, but limits growth in other parts of town.
ˆ Stronger zoning incentives to direct development to areas with public infrastructure in place.
ˆ Impact fees that force new development to finance the additional public capital investments necessitated by growth.
ˆ Requiring new subdivisions to be phased so that no more than a specified number of units may be built in one development in any one year. This system was recently enacted by the town of Berwick to replace its growth cap.
Moving beyond growth caps may prove difficult for many towns. But the end result will hopefully be a more equitable and predictable way of managing growth, one that better serves all parties.
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