The modern growth management movement in the United States solidly emerged with the 1972 decision of the New York Court of Appeals, the state's highest court, in Golden v. Planning Board of Town of Ramapo. Here, the court upheld a phased development timing ordinance in which the approval of a special permit for residential development was linked to the provision of public infrastructure in accordance with an 18-year capital improvement program. This article examines how the Ramapo officials proceeded, the circumstances in which they operated, the resulting litigation, and the aftermath. It contends that, despite its influence on planning law and practice, the Ramapo system still had significant problems as an instrument of modern planning policy, creating a sprawling development pattern that is often viewed as exclusionary in places with few development options.
Golden v. Planning Board of Town of Ramapo, 30 N.Y.2d 359, 285 N.E.2d 291, 334 N.Y.S.2d 138 (1972), appeal dismissed for want of a substantial federal question, 409 U.S. 1003 (1972) (hereinafter referred to as "Ramapo decision").
2.
The methodology for this research is based on a historical analysis of the Ramapo growth management system, litigation, and its aftermath. Our research began in July 2006 with a visit to the town of Ramapo municipal offices, where we reviewed all of the town board minutes from the years 1964 to 1972 and all of the planning board meeting minutes relating to the program and the Golden property. We also retrieved copies of all of the records for the Golden site from the village of Montebello, including the records and site plans for the eventual development of the tract in 1987. Next, we searched Rockland County, New York, newspapers and the New York Times for articles related to the growth management plan and controversy surrounding it. We also reviewed documents and research about the growth management system and its impact and the four-volume plan itself. We obtained briefs from the trial court cases and appeals in the New York State court system and the U.S. Supreme Court. We conducted an analysis of the case on Westlaw, the online legal database, and located law journal articles that assessed or were related to the case. Finally, in February and March 2007, we interviewed people who were involved with development of the plan and the subsequent litigation: Robert Freilich, Manuel Emanuel, John McAlevey, John Keogh, Milton Shapiro, and Reuben Ortenberg.
3.
Julienne Marshall , "Whatever Happened to Ramapo?" Planning Magazine, December 2003, http://www.planning.org/25anniversary/planning/2003dec.htm (accessed September 14, 2006).
4.
Eric Damian Kelly, Managing Community Growth (Westport, CT: Praeger, 1993), 32.
5.
Marshall, "Whatever Happened to Ramapo?" n. 3.
6.
"Hasidic Jews Win on Forming Rockland Village; Court Bids Ramapo Yield Incorporation Papers; Sect Would Keep Its Ways in New Square Hamlet ," New York Times, July 14, 1961; also see Application of Unger, 28 Misc.2d 513, 220 N.Y.S.2d 93 (1961; proceeding to require a town clerk and a town supervisor to perform ministerial acts relating to the incorporation of a village, required by the N.Y. Village Law).
7.
Henry Fagin , "Regulating the Timing of Urban Development ," Law and Contemporary Problems20, no. 2 (1955): 298-304.
8.
Ibid., 302-3. Under Fagins proposal, the assignment of building priority expressed "the sequence of development most advantageous to the municipality for economizing on municipal services and for securing the desired character of development." The municipality would be responsible for fixing the number of development permits by broad zoning classifications using a series of multi-factor allocations and would also be responsible by statute for carrying forward programs of facility and service expansion. A developer should have the opportunity of improving the building priority of his or her land by offering to construct off-site facilities and to provide services needed for development ahead of municipal programming, Fagin wrote. Under special circumstances some form of compensation would be necessary to offset individual losses when development was not possible.
9.
Phillip P. Green Jr. , "Clinic: Development Timing," in Planning 1955 (Chicago: American Society of Planning Officials, April 1956), 81.
10.
Frederick P. Clark, "Clinic: Development Timing," in Planning 1955 (Chicago: American Society of Planning Officials, April 1956), 87-90. The system Clark developed organized the town into two priority areas: a high-priority area already served with municipal facilities and a low-priority area with no or inadequate facilities. In low-priority areas, the approval of the preliminary subdivision would be subject to a development schedule that would permit not less than 20 percent of the lots shown in the preliminary layout to be developed each year over a period not to exceed five years to permit necessary municipal facilities to be constructed at a rate commensurate with the rate of subdivision development. The developer could also elect to build the necessary municipal facilities to eliminate inadequacies, and therefore the applicable subdivision area would be reclassified from low to high priority
11.
Richard May Jr. , "Clinic: Development Timing," in Planning 1955 (Chicago: American Society of Planning Officials, April 1956), 93. Under the Clarkstown ordinance, one zoning district would normally allow residential development on a 1 acre lot, but 15,000 sq. ft. lots could be approved via a special permit; a second district allowed 15,000 sq. ft. lots, but, with a special permit, this figure could be lowered to single-family residences on 7,500 sq. ft. lots and multifamily residences at 4,000 sq. ft. per dwelling unit. The ordinance required the planning board to make findings regarding the presence of water and sewer; proximity (within 1,000 ft.) to an area already developed at a similar density; and the presence of public services, including schools, or adequate plans for them. The particular advantage of this approach, said May, is that it brought the school boards into the planning arena. "They are being officially put on notice," he commented, "as to what is coming; and under these conditions have little excuse for not making the necessary building plans." May maintained that his approach was a "preferable alternative to the exclusionist device of upzoning popular in many suburban communities," meaning the practice of dramatically increasing required minimum lot area. He observed that, from the perspective of 1955, the classic American master plan had "too loose a relationship to zoning"; he favored something akin to a British development plan with "a master plan, zoning ordinance, and capital budget all wrapped in one tidy package."
12.
Josephs v. Town Board of Clarkstown, 24 N.Y. Misc2d 36, 198 N.Y.S. 965 (Sup. Ct. 1960). In Josephs, the state supreme court (the trial court in New York) upheld the action of the Clarkstown town board in refusing to approve a special permit that would have allowed residential development on 22,500 sq. ft. lots in a district that would normally require 40,000 sq. ft. lots. The basis in this case was lack of school capacity. The court found within the state zoning enabling legislation the authority to take into account "adequate provision of schools" and that there was adequate support for the town boards denial. In any case, the applicant had no vested right to an approval of the lot size reduction.
13.
The Josephs case is discussed in Norman Williams Jr. and John M. Taylor, American Land Planning Law, Vol. 3A (Deerfield, IL : Clark Boardman Callaghan, 1988 ), sec. 73.13. The late Professor Williams, a giant in American planning law, was a consultant to Rockland County in the formulation of the ordinance. He wrote, "In view of the courts reference to schools it appears probable that the major reason for the success of the scheme was that the Clarkstown central school district was in fact proceeding to building schools in a regular schedule. The opinion noted that everything reasonably possible is being done by the local authorities to meet the urgency in the school situation; and it seems likely that this served as a major legal bulwark of the validity of the whole scheme." Ibid., 109-10 (quoting Josephs v. Town Board of Clarkstown).
14.
A number of early New York decisions invalidated schemes to manage growth, but these cases, which involved ad hoc devices, did not rise to the level of comprehensive systems. See Albrecht Realty Co. v. Town of New Castle, 8 Misc.2d 255, 167 N.Y.S.2d 843 (N.Y. Sup. Ct. 1957; holding that town zoning ordinance providing that no more than 112 residential building permits a year shall be issued for any land that the town board shall declare to be within a special residence district was a taking without just compensation and because of lack of authority under the New York Town Law); Westwood Forest Estates Inc. v. Village of South Nyack, 23 N.Y.2d 424, 297 N.Y.S.2d 129, 244 N.E.2d 700 (N.Y. 1969; holding that village zoning ordinance amendment barring new construction of multiple dwellings throughout the village for the purpose of alleviating the burden on villages sewer disposal plant and not because of any requirement of or change in comprehensive plan for development of the village was invalid as restricting plaintiffs property to a use for which it was not adaptable and because the amendment did not properly relate to zoning purposes; this opinion was written by Justice Breitel, of the New York Court of Appeals, who would write a strong dissent in the Ramapo decision); Opgal, Inc. v. Burns, 20 Misc.2d 803, 189 N.Y.S.2d 606, affd. 10 A.D.2d 977, 201 N.Y.S.2d 831 ((N.Y.A.D. 2 Dept.1960), affd. 9 N.Y.2d 659, 212 N.Y.S.2d 74, 173 N.E.2d 50 (N.Y. 1961; holding that an ordinance changing a zoning classification from residential to light industry and barring use of property for residential and for heavy industry purposes was so unreasonable and arbitrary as to constitute an invasion of property rights contrary to the constitutional due process clause; here, the purpose was to prevent an increase of school population and at the same time increase the tax income to the school district).
15.
Also see Richard Cutler, "Legal and Illegal Methods for Controlling Community Growth on the Urban Fringe," Wisconsin Law Review1961 (1961): 370-402; Henry J. Schmandt, "Municipal Control of Urban Expansion," Fordham Law Review29 (1960-1961): 637-46.
16.
Gary K.Duberstein, "The Politics of Controlled Growth in Suburbia: A Case Study of Ramapo, N.Y." (senior thesis, Princeton University, 1976), 103.
17.
Ibid., 94.
18.
Ibid., 95.
19.
Robert Freilich, interview by Rebecca Retzlaff, February 27, 2007.
20.
While Ramapo was not the first effort to control growth by an American city, it is arguably the most well known and studied. Kelly attributes its influence and popularity to several factors:
21.
First, the program was viewed as an innovation in planning in the 1960s; second, the court of appeals decision upholding the program was the first to uphold a development timing scheme; third, it had a professional-Robert Freilich-who told the story widely; and fourth, while the Clarkstown growth management program was a predecessor to Ramapo and clearly a major influence on it, that program never achieved the notoriety necessary to influence planning practice. (Kelly, Managing Community Growth, 30)
22.
Manuel Emanuel, interview by Rebecca Retzlaff, February 28, 2007.
23.
Susan Adams, Growth Control with Development Timing in Ramapo, New York (masters thesis, University of Tennessee, 1975), 10.
24.
John Keough, interview by Rebecca Retzlaff, February 27, 2007.
25.
Robert Freilich , "Editors Comments," Urban Lawyer4 (1972): xi.
26.
Robert Freilich , "Growth Management Techniques: An Overview of Systems for the New Millennium" Rocky Mountain Land Use Institute Technical Service Report13 (1997 ): 2.
27.
Robert Freilich , "Editors Comments." Also see Sylvia Lewis, "Some Little Cities Dont Want to be Big Ones," New York Times, December 22, 1974.
28.
Duberstein, Politics of Controlled Growth, 85-90.
29.
Ibid., 104.
30.
According to Duberstein, a Princeton University student who chronicled the Ramapo growth management program,
31.
He [McAlevey] then forged a new relationship between town hall and the builders. As he recalls "The most distressingly obvious thing was that it seemed the builders were running the town . Certain builders walked into town hall and they brought buns and rolls and everybody sat down and made a big celebration." McAleveys anti-builder attitude stemmed from the laudable premise that those in the construction trade, regulated through zoning and building codes established and administered by town hall personnel, should not enjoy too cozy a relationship with them. As an astute gauger of public opinion, McAlevey realized that it was politically safe to be belligerent towards builders. When some builders withdrew financial support from his campaign because of controlled growth, he said. "Thats all right; there are more homeowners than builders." (Ibid., 109-110)
32.
Town of Ramapo, New York, Town Board Minutes, "Comments by John F. McAlevey, Supervisor, Town of Ramapo on Controlled Growth Legislation," October 13, 1969.
33.
Ibid.
34.
Ibid.
35.
Keough, interview.
36.
John McAlevey, interview by Rebecca Retzlaff, March 14, 2007.
37.
Town of Ramapo, New York, Town Board Minutes, "Comments by John F. McAlevey, Supervisor, Town of Ramapo on Controlled Growth Legislation," October 13, 1969.
38.
Freilich, interview.
39.
Adams, Growth Control, 81.
40.
See Robert H. Freilich, "Interim Development Controls: Essential Tools for Implementing Flexible Planning and Zoning," Journal of Urban Law49 (1971- 1972): 65-110.
41.
Vincent Desalvo , "Ramapo Bans Building of Apartments," Rockland County Journal News, February 15, 1965.
42.
Particularly the village of Spring Valley.
43.
Desalvo, "Ramapo Bans."
44.
Emanuel, interview.
45.
Ibid.
46.
Freilich, interview.
47.
"Basically the concept of the timing of the planning was written into the plan by myself and Emanuel," Robert Freilich said. "I divided it into four volumes, and when Emanuel asked why, I said it was because a plan looked much more impressive as four volumes." Freilich noted that the decision to split the plan into four volumes helped to later give the plan legitimacy in the courts. Freilich, interview.
48.
Manuel Emanuel , "Ramapos Managed Growth Program: A Close Look at Ramapo After Five Years Experience," Planners Notebook4, no. 5 ( 1974): 2.
49.
Ramapo Planning Board, Development Plan, Town of Ramapo, N.Y (Ramapo, NY: Ramapo Planning Board and Rockland County Planning Board, July 1966), 20. Also see Emanuel, "Ramapos Managed Growth Program."
50.
The policies contained in the master plan were the following. (1) Every effort should be made to preserve those natural resources of the town that give it a pleasant, open setting and that serve as an attractive background to the more developed areas of the town. (2) The population increase provided for in the towns development plan should be kept to a moderate level so that the existing rural, semirural, and suburban character in different parts of the town can be maintained so that the existing and projected public facilities will not be overburdened. (3) Commercial development should conform with the existing pattern of development, providing for essentially local population needs. (4) Provision should be made for adequate public facilities (e.g., transportation, circulation, education, recreation, etc.) consistent with the anticipated needs of a growing population. (5) Continued efforts should be made to strengthen the tax base of the town and local employment opportunities by encouraging properly planned and located light industrial establishments, research buildings, and businesses and administrative offices. Ramapo Planning Board, Development Plan, Town of Ramapo, N.Y (Ramapo, NY: Ramapo Planning Board and Rockland County Planning Board, July 1966), 20.
51.
Ibid., 21.
52.
Ibid., 24.
53.
The plan stated, "The areas of the greatest residential densities should be those in the Villages of the town and those closest to the villages ." Ibid., 21.
54.
As with the other components of the planned growth system, the town board was met with considerable public outcry against the interim development law. At a May 16, 1966, public hearing concerning the proposed law, at least seventeen people spoke in opposition to the ordinance. People opposed to the ordinance were builders, attorneys, a real estate agent, and other residents. Three people spoke in favor of the proposed ordinance-a rabbi from the village of New Square, an attorney, and a resident. The interim development law was later extended past the initial 90-day period.
55.
The capital program and capital budget were derived from the official map of the town of Ramapo, which was originally derived from the master plan. The town also completed several studies to support these documents: a drainage study, which provided an analysis of all drainage ways based on the capacity needed if the town was developed at its maximum density; a map and plan for future sewer development; and a recreation study, which analyzed the need for public and private recreation sites. Emanuel, "Ramapos Managed Growth Program," 3.
56.
Town of Ramapo, New York , Town Board Minutes, "Summary of Proposed Capital Program, Town of Ramapo," October 27, 1969 .
57.
Ramapo Planning Board, Development Plan, Town of Ramapo, N.Y. ( Ramapo, NY: Ramapo Planning Board and Rockland County Planning Board, July 1966), 20. Also see Emanuel, "Ramapos Managed Growth Program."
58.
John McAlevey told the Association of Towns in 1970,
59.
The zoning ordinance, fortified by the official map, constitutes the realistic establishment of a passive town development policy. I call this, even after all the work of the master plan, zoning ordinance adoption or revision, and official map adoption "passive" because it presumes to predict and/or control what the character of the town will be as it develops by circumscribing the options of the private entrepreneur. Essentially, under the conventional system, whether the town develops and at what rate is a result of a multitude of decisions made in the private sector, not only outside the pale of government but unknown to it.
60.
If the town board wishes to be more proactive in the development of its plan than there is a third step available which raises its level of response out of the passive and into the active area-this is the development and adoption of a capital program under Sec. 99-G of the General Municipal Law. This is not an easy or common step. (John McAlevey, "The Town Board Role in Town Development Policy, a Speech to the Association of Towns," Town and Country Topics29, no. 9 (1970): 3-4, quoted in Adams, Growth Control, 41-42)
61.
John McAlevey, interview by Susan Adams, May 16, 1974, quoted in Adams, Growth Control, 43.
62.
"This is where the now famous Ramapo managed growth program began to the outside world. Actually, the plan was not altered. The managed growth program was additional amendments to the zoning ordinance, in conformance with the plan as required by Town Law." Emanuel, " Ramapos Managed Growth Program," 3.
63.
Ibid. John McAlevey recalled evaluating and rejecting the Clarkstown ordinance (described above) as a potential approach before settling on a point system:
64.
It [the Clarkstown ordinance] taught us one of the things that you cant do. It was an effort to try to achieve the same goals, but they did it in a way that was not workable. The plan was that as the core areas filled up, they would downzone the sparsely zoned areas to allow for more density. When it came time to do the downzoning, people did not want it, and so it fell apart. You have to anticipate what you want ahead of time, and explain it to the public, so ours worked because that is what we did. There was no subtlety or mystery to it, and so everybody could see that nobody was being paid off because of the point system. (McAlevey, interview by Adams)
65.
Gary Duberstein provides this dramatic account of the formulation of the development timing ordinance by John McAlevey and Robert Freilich:
66.
Some 400 feet above Hillburn and commanding a panoramic view of the Ramapo Valley sits the Motel on the Mountain. At the base of tis [sic] craggy slope, cars hurl by on the New York State Thruway, the highway which precipitated Ramapos growth. To the mild amusement of controlled growths detractors, that modern day Mount Sinai was where John McAlevey and Robert Freilich went for their final inspiration. As McAlevey recalls, "We decided that we were just so busy with day-to-day stuff. There was a problem in getting time to just sit down when we got to the crucial point of trying to make some policy decisions. We put out a cover story that we were going out of town. Nobody but our wives and my secretary knew that we werent going out of town. What we did is we went up to the Motel on the Mountain and took a suite up there, the two of us for three days. We just holed up there and spent two days rapping the whole thing day and night, back and forth. Then on the morning of the third day, we thought we had our concepts pretty well lined up. This is when we came up with the points system as the alternative we would settle upon because it satisfied the criteria we were looking for." (Duberstein, Politics of Controlled Growth, 131-32 quoting the authors February 27, 1976, interview with McAlevey)
67.
According to McAlevey, "The elements of the point system were principally derived from the scope of the master plan, official map, and special facility studies." Manuel Emanuel, "Ramapos Managed Growth Program," 4.
68.
The total point score of 15 was incorporated into the zoning ordinance "after a series of extensive trial and error analysis were performed. First of all, the existing undeveloped land areas in the unincorporated portion of the Town were mapped and the potential development capacity for each area then computed based upon existing zoning. The series of different overall scoring systems were tested to determine the number of lots or building units which would become eligible for approval each year, based upon the projected capital budget and capital plan. These calculations also gave the Town a measure of the probable annual rate of land consumption measured against its ultimate capacity." Emanuel, "Ramapos Managed Growth Program," 5. For details on the point system, also see Town of Ramapo, New York, "Amendments to the Town of Ramapo Building Zone Ordinance of 1969," October 13, 1969. The ordinance appeared as Section 46-13.1B of the Ramapo Zoning Ordinance.
69.
Adams, Growth Control, 38; also see Emanuel, "Ramapos Managed Growth Program."
70.
According to Emanuel, "A variance for one lot is almost always granted. Variances for two lots are usually granted, while those for three lots of more are usually denied." Emanuel, "Ramapos Managed Growth Program," 6.
71.
Marshall, "Whatever Happened to Ramapo?"
72.
In a 1974 assessment of the Development Easement Acquisition Commission (DEACOM), Emanuel wrote, "Since the first properties entered the DEACOM program in 1969, slightly more than 200 properties have taken advantage of it Of the properties which originally entered the program in 1969 for a five year period, well over half have renewed their participation on the program for a similar span of time or for a longer period. As of July, 1974, there were over 150 properties, constituting almost 1,700 acres of land, still taking advantage of the DEACOM law. These properties would normally be assessed in the aggregate at approximately $7.5 million; under DEACOM abatement their combined assessment total about $3.5 million." Emanuel, "Ramapos Managed Growth Program," 7.
73.
Fred P. Bosselman, "Can the Town of Ramapo Pass a Law to Bind the Rights of the Whole World?" Florida State University Law Review1 (1973): 234-65.
74.
Kelly, Managing Community Growth, 31.
75.
Emanuel, "Ramapos Managed Growth Program," 4.
76.
Ibid.
77.
Ibid.
78.
Emanuel, interview.
79.
Emanuel, "Ramapos Managed Growth Program," 4.
80.
Ibid.
81.
Ibid. Emanuel noted that every special permit case received all 5 points for sewers, every case had a recreational facility within 1 mile, most cases had at least 3 points under the road category, and most had a firehouse within 2 miles. However, few had more than 3 points for drainage. On the other hand, variances to allow development were denied for a number of issues, including inadequate drainage, lack of road access, and lack of fire station access. However, variances that were denied generally had more points for sewers and recreation facilities. Ibid.
82.
Ralph Blumenthal , "The Roar of Bulldozers Marks Rockland Growth ," New York Times, March 25, 1968.
83.
Town of Ramapo, New York , Town Board Minutes, Transcript of Hearing, October 11, 1968, 110.
84.
Ibid., 113.
85.
Town of Ramapo, New York , Town Board Minutes. October 13, 1969, 102.
86.
Town of Ramapo Planning Board, Minutes, August 19, 1969, 9.
87.
Town of Ramapo, Town Board Minutes, October 27, 1969, 109.
88.
Town of Ramapo Planning Board, Board Minutes, December 9, 1969, 1. An attorney, Charles McGroddy, representing one of the subdivision applicants on the boards agenda that evening "stated for the record that it was now his understanding that no land may be used under this ordinance as a matter of right; that a subdivision does not give a right of use but merely a right of sale, and if the Ramapo Zoning Ordinance is construed as a prohibition of sale, it is no longer zoning." Ibid., 2.
89.
Denial of approval "without prejudice" meant that the denial left open the possibility for an applicant to resubmit the same subdivision at a future date, after obtaining the special permit for residential development from the Ramapo Town Board.
90.
Town of Ramapo Planning Board, Minutes, December 9, 1969, 6. The Rockland County Journal News incorrectly reported that the planning board denied nineteen of twenty plans that evening, but the figure was in fact twenty denied, with action with one deferred until January 1970 because of the applicants attorneys contention that the subdivision in fact met the standards of the new development timing ordinance and required approval of the special permit by the town board before the approval of the subdivision. Ibid., 7-8. cf. Scott Webber, "Ramapo Denies 19 of 20 Plans," Rockland County Journal News, December 10, 1969.
91.
Record on Appeal, Ruth Golden and Ramapo Improvement Corporation, Petitioners-Appellants, against The Planning Board of the Town of Ramapo, Respondent-Respondent, New York Supreme Court, Appellate Division, Second Department, filed March 24, 1971 (hereinafter "Record"). The record contains all of the principal documents at the trial and intermediate appellate levels.
92.
The particular action was called an Article 78 proceeding, after Article 78 of the New Yorks Civil Practice Law and Rules. Article 78 proceedings are used to challenge action (or inaction) by agencies and officers of state and local government. In such a proceeding, a judge reviews the administrative case, scrutinizes the agencys actions and decisions, and, if necessary, reverses an agencys decisions.
93.
Petition to New York Supreme Court, in Record, 11-12.
94.
Ibid., 13.
95.
Answer and Return, in Record, 26-28.
96.
Emanuels four-page affidavit laid out the rationale for the phased growth system, concentrating on the capital improvement program itself and stressing that it was a temporary but proactive scheme at achieving planning objectives. "All professional planners and virtually all planning literature," he stated, "subscribes [sic] to the view that programmed growth is one of the prime goals to be achieved through sound comprehensive community planning." The capital budget contemplated a rate of expenditure "considerably in excess of the programmed expenditures of other comparable townships in the New York metropolitan area." Affidavit of Manuel S. Emanuel, Record, 60. Emanuel declared that Ramapo would reached "zoning saturation" by 1985, and at that time "sufficient capital works will have been constructed so that no further limitations on the development of the remaining acres need be entertained any longer." Ibid., 61.
97.
Chungs affidavit was cautiously worded. He had concluded that a controlled growth alternative would yield smaller increases in taxes over the 18-year period, but "the net savings in tax rates is something which must be weighed carefully against the problems which the introduction of a controlled growth situation could cause. The advantages which would be gained must be set against such considerations as the desirability of interfering with the free market processes." Affidavit of Hyung C. Chung, Record, 63. Any "untoward social consequences" in terms of zoning control in Ramapo that would eliminate "persons of the lower bracket from residence in the community" were, he wrote, the consequence of Ramapos 1958 zoning ordinance, which introduced large-lot zoning to the town. The development timing ordinance, he declared, "added insignificantly to the basic inhibition created as a result of the 1958 ordinance." Ibid., 64. Conventional large-lot zoning, stated Chung, "invariably results in de facto discrimination of low- and moderate-income families to be located in the Town." However, he speculated that the Ramapo "controlled growth ordinance could be part of a deliberate policy of growth control to foster the development of apartment dwellings suitable for low and moderate-income families without the undue fear of inducing rapid growth." Ibid., 65. Of course, the Ramapo zoning ordinance, as noted earlier, had been amended in 1966 to prohibit multifamily dwellings, so this policy was an unlikely initiative. It is possible that Hyung was indicating to the court that he believed that Ramapos large-lot zoning regime, which was in place prior to the enactment of the ordinance, was problematic and that the entire growth management system did not alleviate the problems potentially created by it and perhaps worsened them.
98.
McAleveys administration pushed the construction of public housing in the town and overcame court challenges to it in the early 1970s. See Deidre Carmody, "Plan for Low Cost Housing Arouses Anger in Suburban Ramapo," New York Times, August 1, 1970. Also see the related cases: Greenwald v. Town of Ramapo, 35 A.D.2d. 958 (1970); Farrelly v. Town of Ramapo, 35 A.D.2d 958, 317 N.Y.S.2d 937 (1970); Fletcher v. Romney, 323 F.Supp. 189 (S.D.N.Y.1971).
99.
Affidavit of John F. McAlevey, Record, 75.
100.
Decision of Galloway, October 26, 1970, Record, 85, quoting New York Town Law, sec. 263. This section of the Town Law, "Purposes in View," is identical to Advisory Committee on Zoning, U.S. Department of Commerce, A Standard State Zoning Enabling Act, rev. ed. (Washington, DC: U.S. Department of Commerce, 1926), sec. 3.
101.
Ibid., citing Berman v. Parker, 348 U.S. 26 (1954) and Udell v. Haas, 21 NY 2d 463, 235 NE2d 897 (1968).
102.
Ibid., 90.
103.
Ibid., 92.
104.
Ibid., 99.
105.
Petitioners-Appellants Brief, New York Supreme Court, Appellate Division-Second Department, Golden v. Planning Board of Town of Ramapo (n.d., 1970), 34.
106.
Ibid., 8 (citing reports of the National Commission on Urban Problems ["Douglas Commission"], Kaiser Commission, and Kerner Commission).
107.
Ibid., 28. The brief also contains a lengthy discussion of the regulation of mobile homes, even though the litigation had nothing to do with them. However, it observes that "a mobile home park can be built very quickly and filled soon after completion. They thus can impose a sudden and severe burden on municipal services." Ibid., 46. Of course, the same could be said for any large-scale land use that is erected and filled quickly.
108.
Ibid., 29.
109.
Ibid., 1.
110.
Ibid., 3-4, 9. The point Coral was making was that private multifamily housing, which could be a source of affordable housing, could not be built in Ramapo.
111.
Ibid., 185.
112.
Ibid., 186. Also see the concurring opinion by Justice Hopkins, 324 N.Y.S.2d 187-89 ("The problems are indeed regional, and not local; and their solution lies within the province of the Legislature rather than within the more parochial vision of the Town").
113.
Ibid., 70.
114.
Ibid., 40-45, citing Fagin, n. 3; Persico and Risse, New York State Planning Law Revision Study (Troy: New York Planning Federation Institute, 1969), 45; Williams, The Structure of Urban Zoning (New York: Buttenheim , 1966); National Committee on Urban Growth Policy, The New City ( Westport, CT: Praeger, 1968); National Commission on Urban Problems, Building the American City (Washington, DC: National Commission on Urban Problems, 1968); National Commission on Urban Problems, Alternatives to Sprawl, no. 51 (Washington, DC: National Commission on Urban Problems, 1968); U.S. Advisory Commission on Intergovernmental Relations, Urban and Rural America: Policies for Future Growth, document A-32 (Washington, DC: U.S. Advisory Commission on Intergovernmental Relations, 1968).
115.
Petitioners-Appellants Brief, New York Supreme Court, Appellate Division-Second Department, Golden v. Planning Board of Town of Ramapo (n.d., 1970), 36.
116.
Petitioners-Respondents Brief, Golden v. Planning Board of the Town of Ramapo, et al., N.Y. Court of Appeals (n.d., 1971), 9.
117.
Ibid., 10.
118.
Ibid., 27.
119.
Duberstein, Politics of Controlled Growth, 205 (quoting Carole R. Richards, "Ramapo Zoning Debated in Albany," Rockland County Journal News, November 18, 1971).
120.
Golden v. Planning Board of Town of Ramapo.
121.
Rockland County Builders Assn, Inc. v. McAlevey, 37 A.D.2d 738, 324 N.Y.S.2d 190 (N.Y.A.D. 2 Dept. Jul 23, 1971), reversed by Golden v. Planning Board of Town of Ramapo. For a discussion of this litigation, see Duberstein, Politics of Controlled Growth, 215-18. The National Association of Home Builders (NAHB) entered the case late, initially believing it would not have national implications. It provided money and legal advice. NAHB believed that the Rockland County Builders Association should have raised issues of racial and ethnic exclusion. However, these issues were not adequately developed in the original briefs and record in the state supreme court.
122.
Golden v. Planning Board of Town of Ramapo, 298.
123.
Ibid., 297.
124.
Ibid., 300.
125.
Ibid., 299.
126.
Ibid., 297, n. 6; Ibid., 299-300.
127.
Ibid., 302.
128.
Ibid., 295, n. 2:
129.
As of July, 1966, the only available figures, six residential zoning districts with varying lot size and density requirements accounted for in excess of nine tenths of the Towns unincorporated land area. Of these the RR classification (80,000 square feet minimum lot area) plus R-35 zone (35,000 square feet minimum lot area) comprise over one half of all zoned areas. The subject sites are presently zoned RR-50 (50,000 square feet minimum lot area). The reasonableness of these minimum lot requirements are not presently controverted, though we are referred to no compelling need in their behalf. Under present zoning regulations, the population of the unincorporated areas could be increased by about 14,600 families (3.5 people) when an suitable vacant land is occupied. Housing values as of 1960 in the unincorporated areas range from a modest $15,000 (approx. 30%) to higher than $25,000 (25%), with the undeveloped western tier of Town showing the highest percentage of values in excess of $25,000 (41%). Significantly, for the same year only about one half of one percent of all housing units were occupied by non-white families. Efforts at adjusting this disparity are reflected in the creation of a public housing authority and the authoritys proposal to construct biracial low-income family housing. (italics added, citations omitted)
130.
Ibid., 310 (Breitel, dissenting, joined by Jasen; citing E.F. Roberts, "The Demise of Property Law," Cornell Law Review57 (1971): 1-50).
131.
Ibid., 310-11 (Breitel, dissenting, joined by Jasen).
132.
Jurisdictional Statement and Petition of Petitioners-Appellants, Ruth Golden and Ramapo Improvement Corporation, Case No. 72-3691, U.S. Supreme Court, filed September 1, 1972.
133.
Golden v. Planning Board of Ramapo, and Rockland County Builders Association, 409 U.S. 1003 (1972).
134.
James Surkamp , "Ramapo Toasts, Critics Roast Court Decision on Zone Plan," Rockland County Journal News, May 4, 1972. Freilich was referring to Village of Euclid v. Ambler Realty, 272 U.S 365 (1926), which upheld the constitutionality of zoning.
135.
136.
137.
Rockland County Journal News, "Courts Shaping Future Of Zoning," May 5, 1972. See S. Burlington County NAACP v. Township of Mt. Laurel, 67 N.J. 151, 336 A.2d 726 (N.J. 1975), appeal dismissed, cert denied. 423 U.S. 808 (1975). For a comparison of the Ramapo and Mt. Laurel cases and the attitudes of the New York and New Jersey courts toward exclusionary zoning, see Peter Buchsbaum, "Ramapo, New York, and Mt. Laurel New Jersey: A Tale of Two Townships, A Study in Contrast," Urban Law 35 (2003): 151-56. Comments Buchsbaum,
138.
Unfortunately, the New York Court of Appeals in Ramapo did not underscore the affordable housing point emphasized by the New Jersey Supreme Court [in Mt. Laurel]. Nor did it directly address Judge Breitels dissenting comments about local parochialism in growth management. Judge Breitel objected to broad local government powers over growth management on two grounds: first, it could distort regional growth patterns and, second, it could too often become an excuse for "snob zoning" that had an exclusionary impact. (Ibid., 152)
139.
Bill Tucker, "15 Points Still Facing Rough Test," Rockland County Journal News, November 14, 1972. Observed Tucker, "The question that many critics have asked, and which envious town supervisors might also be consider, is whether another town might not put through a similar ordinance and then find it administratively inconvenient-or politically impossible to include the compensation of low and middle-income housing."
140.
"A key factor in the Ramapo situation," wrote Sy J. Schulman, one of Zoning Digests reporter-commentators, "was that the town had clean hands in that it had a successful policy of providing for affordable housing." But Schulman observed that the local reaction in the New York area tended to ignore that fact and instead "hailed the case as judicial concurrence in the right of municipalities to restrict development, by in effect, withholding the provisions of needed facilities." The decision, he said, "is clearly not the last word in New York or elsewhere, and, in this reporters opinion, should not be viewed as a new kind of suburban hunting license." Sy J. Schulman, "Reporters Comments ," Zoning Digest24, no. 3 (1972): 71.
141.
Randall W. Scott, director of the Urban Governmental Affairs Department of NAHB, contended that the Ramapo decision offered "unfortunate precedent which could encourage the adoption of unilateral policies-in pursuance of seemingly valid planning ideas-which in combined effect could severely and adversely affect the quantity, quality, cost, location, and equitable opportunities for decent housing in the country." Scott advocated a system of state and regional planning for housing, not present in the Ramapo case, and local planning that took into consideration "overall housing needs." Randall W. Scott, "Reporters Comments," Zoning Digest 24, no. 3 (1972): 80. Scotts commentary analyzed the ordinances operation, noting the difficulty with the provisions dealing with adequacy of fire service. A hypothetical developer could not negotiate with the town of Ramapo because firehouses were not within the scope of Ramapos authority. Ibid., 77.
142.
Richard May Jr., "Reporters Comments," Zoning Digest24, no. 3 (1972): 81.
143.
Robert H. Freilich, "Reporters Comments," Zoning Digest24, no. 3 (1972): 74. This same commentary by Freilich, editor of Urban Lawyer, appears as " Editors Comments: Golden v. Ramapo: Establishing a New Dimension in American Planning Law," Urban Lawyer4 (1972): xi-xvi.
144.
Fred Bosselman , "Can the Town of Ramapo Pass a Law to Bind the Rights of the Whole World?" Florida State University Law Reviews1 (1973): 234.
145.
Ibid., 250.
146.
Williams and Taylor, American Land Planning Law, sec. 73.14, 119. Williams believed that parts of the majority opinion were "turgid" and that the court of appeals majority leaned too heavily on unfinished proposals by the American Law Institute (its Model Land Development Code) and a similar study to revamp New Yorks planning and zoning laws, which the legislature had not yet passed on. To Williams, "These two sources are as confusing as they are nonauthoritative." He also observed that the entire Ramapo scheme would be a much strong stronger basis, both substantively and legally, if it had been carried out to its logical conclusion-that is, if one of the final products of the entire scheme had been a map indicating which areas were planned to be developed, with public facilities and with housing, in which years (or periods of years) so that the town could really see and evaluate the proposed growth pattern, and each landowner could tell more or less when his turn would come. No such map was prepared; in fact, the only capital programs available consisted of three sheets of paper, listing proposed improvements and their estimated costs. (Ibid., 121-22)
147.
Ibid., 121.
148.
David L. Callies, Robert H. Freilich, and Thomas E. Roberts , Cases and Materials on Land Use, 2nd ed. (St. Paul, MN: West, 1994): 585.
John McAlevey, interview by Rebecca Retzlaff, March 14, 2007.
153.
Marshall, "Whatever Happened to Ramapo?"
154.
Marcus v. Baron, 57 N.Y.2d 862, 442 N.E.2d 437, 456 N.Y.S.2d 39 (N.Y. 1982).
155.
"During the 15 years that the law was in effect, not a single new village was incorporated in Ramapo. After the law was overturned in court in 1982, the number of villages doubled, from six to twelve, by 1991." Marshall, "Whatever Happened to Ramapo?"
156.
Through incorporations and the creation of new villages, the unincorporated area of Ramapo shrunk from about 80 percent of the town in the 1960s to about 30 percent in 2003. Ibid.
157.
158.
Milton Shapiro, interview by Rebecca Retzlaff, March 9, 2007.
159.
Town of Ramapo Planning Board, Minutes, February 3, 1987, 9-13.
160.
Town of Ramapo Planning Board, Minutes, April 21, 1987, 16-17.
161.
Code of the Village of Montebello, New York (Rockland County), Part II: General Legislation, Chapter 195: Zoning, Article II: Zoning Districts and Zoning Map, as amended December 29, 2003. 152. As one analysis concludes,
162.
Neither the Ramapo plan nor the program itself worked exactly as intended. Of the facilities used by the town as the basis for the program, the town of Ramapo controlled only parks, sewage collection (not treatment), drainage, and some roads. Many roads, the proposed regional sewer system, schools, and fire protection were the responsibilities of other entities, meaning that Ramapos "plans" for construction of such facilities were more like wish lists than plans. The second problem was that the town never really followed the system, awarding unearned points because of a planning problem and approving nearly as many lots that did not meet the standards of the ordinance as it approved because they complied with it. Further, the impact of the program was probably just to reduce Ramapos share of regional growth, not to change the growth patterns. Like most economic trends, the growth pressures that temporarily overwhelmed Clarkstown, Ramapo, and Rockland County had waned by the 1980s. (Kelly, Managing Community Growth, 31)
163.
Marshall, " Whatever Happened to Ramapo?"
164.
Shapiro, interview.
165.
Robert H. Freilich , From Sprawl to Smart Growth ( Chicago: American Bar Association, 1999; describing systems Freilich developed for the Twin Cities and San Diego regions, the state of New Jersey, and Palm Beach County, Florida, among others).
166.
Edward J. Sullivan, "Ramapo Plus 30: The Changing Role of the Plan in Land Use Regulation," Urban Lawyer35 (Winter 2003): 79.
167.
Ibid., 110.
168.
Construction Industry Assn of Sonoma County v. City of Petaluma, 522 F.2d 897 (9th Cir. 1975), cert. denied, 424 U.S. 934 (1976; upholding residential building permit allocation system in which a certain number of building permits are awarded annually through an award competition).
169.
Fla. Stat. Ann. Sec. 163.3177(10)(h); Fla. Admin. Code Sec. 9-J5.0055; Wash. Rev. Code Sec. 36.070(6)(b); Wash. Admin. Code Sec. 365-195-835; Md. Code Ann. Art. 66 B, Sec. 10.1(a)(1); N.H. Rev. Stat. Ann. Secs. 675:21-22.
170.
For example, see S. Mark White, Adequate Public Facilities Ordinances and Transportation Management, Planning Advisory Service Report No. 465 (Chicago: American Planning Association, August 1996).
171.
Thomas G. Pelham , "From the Ramapo Plan to Floridas Statewide Concurrency System: Ramapos Influence on Infrastructure Planning," Urban Lawyer35 (Winter 2003): 114.
172.
Golden v. Planning Board of Town of Ramapo, 299.
173.
Reuben Ortenberg, interview by Stuart Meck, March 15, 2007.
174.
Shapiro, interview. Adds Shapiro,
175.
Politics was the motive [for the Ramapo system]. The people living here did not want the growth; they wanted a law that would keep us from growing. It was the typical not-in-my-back-yard case. The case for growth that was laid out by the town was never contested, it was assumed to be true. It was decided in the court of appeals, and was not decided on the merits, it was decided on a procedural matter-that by making a motion for summary judgment, our attorneys admitted everything that they did not absolutely contest, so the court decided that in view of the dire circumstances facing the town because of the growth, this was like emergency zoning and they approved it on that basis, but it was a phony situation. It you assume all of the growth was true, then the case has merit, but there was no emergency condition. The town grew and the town never did a thing.
176.
See Duberstein, Politics of Controlled Growth, 111-13 (describing dramatic reductions in density in 1966 zoning ordinance, including elimination of RG district, which permitted 7,500 sq. ft. lots, and removal of apartments from zoning ordinance in February 1966, a Democratic campaign promise). John McAlevey responded to this criticism in a 2007 interview:
177.
did not regard it [criticisms about the elimination of multi-family housing in the zoning ordinance] as a valid criticism. The town of Ramapo is not just the unincorporated area, it included two major villages, and within the incorporated villages, we had all the density we needed, and the town board looked at the totality of the town and concluded that the unincorporated areas did not need to supply the services that the incorporated areas were providing-why do we need to duplicate something that was already there? (McAlevey, interview by Retzlaff)
178.
Alan S. Oser, "Innovator in Suburbs Under Fire," New York Times, March 28, 1971. According to the Oser article,
179.
McAlevey was asked whether these relatively large lot sizes were tending to keep out people of moderate means looking for the suburban homes, and whether the purposes of such lot sizes was to keep out minority groups. "If I believed that were true my conscience would bother me," he said. "But builders will build to the highest market and sell to the market regardless of lot size. When you have a sellers market they can sell on any lot of any size houses that are still out of range of the common man. I dont believe that all you have to do is go from the large lot to the small lot and the housing problem will be solved." Nor does Mr. McAlevey believe that creating zones for apartment housing or cluster housing would be wise. The proper place for apartments-usually garden apartments in the suburbs-is in the already more intensely developed villages, he said. It is through public housing in some form that Mr. McAlevey believes that the suburbs must meet their social responsibility not to exclude lower income people.
180.
Herbert W. Franklin, "Control Urban Growth-But for Whom? " Zoning Digest24, no. 9 (1972): 308.
