Subdivision controls as a means of preserving suburban open space: The Aunt Hack and Associated Home Builders cases.

Programs for open space preservation have traditionally been justified on aesthetic grounds or have stressed regional planning needs. Husbanding the amount of surviving open space was thought to preserve planning options and to provide needed recreational space for entire metropolitan regions. Only recently has the importance of open space for the quality of suburban community life begun to be recognized. As a report to the California State Assembly put it, "It is perhaps the visual impact of thousands upon thousands of houses built row upon row without relief which has been most responsible for stimulating burgeoning citizen interest in the problem of providing for recreation areas in subdivision developments . … Families who have moved to suburbia in the hope of finding escape from urban congestion have found instead that their children may there be forced into the streets in their natural pursuit of recreation space. These people turn to the community as a whole for aid inproviding the desired parks."¹

The problem has been aggravated by the generally strained financial conditions of suburban communities, which are already burdened with staggering school budgets. Few suburbs seem to have either the financial resources or the political will to sanction bond issues for open space acquisition, and thus their governing bodies are confined to the use of regulatory powers in their attempts to provide the desired park space.

Zoning, the oldest and most prevalent regulatory mechanism, has been of little use for this purpose. Its administration is, of course, notoriously uneven and susceptible to pressure. More importantly, even with effective and consistent administration, standard zoning (which sets minimum acreage requirements for each housing unit) fails — by definition — to preserve communal open space; a patchwork series of individually-owned lots emerges, instead of public land reserved for the use of the general community.

Perceiving the failure of zoning, suburban planning bodies have begun to turn to a new device in their efforts to preserve communal open space. This new measure requires subdivision developers either to set aside a specified amount of open land within their developments or to pay a fee to the community for the purpose of open space acquisition as a condition for subdivision plat approval. This device has previously been sustained in a few jurisdictions,² but has not been widely litigated. Two recent cases, however, have served to re-focus judicial attention on its legitimacy.

In Aunt Hack Ridge Estates, Inc. v. Planning Commission of the City of Danbury, 1 ELR 20192 (Conn. Sup. Ct., Dec. 15, 1970), a developer who was not permitted to subdivide because he failed to provide for recreational open space challenged both the regulation which authorized the Danbury Planning Commission to deny a permit on such grounds and the legislative enactment on which the regulation was based. The court found the statute authorizing the Planning Commission's requirement to be a valid exercise of state police power:

In these days of burgeoning population, critical housing problems and the incentive which they create for the activity of land developers, the need for parks, recreational areas and open space for the welfare of the people looms large. Planning commission recommendations for recreational purposes, for controlling the density of population and for parks and playgrounds would be of little value if, as open spaces are built upon, reasonable provision to accomplish these purposes could not be required . … 1 ELR 20193

In examining this particular application of the police power, the court inquired "whether the burden cast upon the subdivider is specifically and uniquely attributable to his own activity," and determined that "where the requirement is uniquely attributable to the [1 ELR 10112] subdivider's activity, it has been held to be a permissible exercise of the police power." 1 ELR at 20194. The court found that such was the case here, as the open space required by the Planning Commission was intended primarily to service the needs of the future subdivision.

In the recent case of Associated Home Builders v. City of Walnut Creek, 1 ELR 20223 (Sup. Ct. Cal. April 26, 1971), the California Supreme Court went even further, extending the Connecticut court's position and holding that a subdivider could be required to provide recreational open space even when the need for such space could not be directly attributed to his development.

It has been estimated that by the year 2000 the metropolitan population of the United States will increase by 110 to 145 million, that 57 to 75 million of this increase will occur in areas which are now unincorporated open land encircling metropolitan centers, and that the demand for outdoor recreation will increase tenfold over 1956.³ We see no persuasive reason in the face of these urgent needs caused by present and anticipated future population growth on the one hand and the disappearance of open land on the other to hold that a statute requiring the dedication of land by a subdivider may be justified only upon the ground that the particular subdivider upon whom an exaction has been imposed will, solely by the development of his subdivision, increase the need for recreational facilities to such an extent that additional land for such facilities will be required. 1 ELR at 20224.

The court went on to say that the extent and location of the land dedicated or the amount of alternative fees required of the developer need bear only a reasonable relationship to the projected future use of open space by the residents of the subdivision, and that the constitutionality of the requirement "is not dependent on the exclusive use of the facilities by those who will occupy the subdivision." 1 ELR at 20224 (fn. 5) The court implied that a municipality might even require a subdivider whose proposed development was close to or contiguous with existing open space to contribute to the purchase of recreational facilities in another, perhaps distant, part of the community. The court did not feel that the present case required the resolution of this issue but commented (in a footnote):

It is difficult to see why, in the light of the need for recreational facilities described above and the increasing mobility of our population, a subdivider's fee in lieu of dedication may not be used to purchase or develop land some distance from the subdivision but which would also be available for use by subdivision residents. If, for example, the governing body of a city has determined that a specific amount of park land is required for a stated number of inhabitants, if this determination is reasonable, and there is a park already developed close to the subdivision to meet the needs of the residents, it seems reasonable to employ the fee to purchase land in another area of the city for park purposes to maintain the proper balance between the number of persons in the community and the amount of park land available. The subdivider who deliberately or fortuitously develops land close to an already completed park diminishes the supply of open land and adds residents who require park space within the city as a whole . … 1 ELR at 20224 (fn. 6)

The court rejected the argument that this rationale could be applied to hold subdivision residents responsible for the increase in the cost of other government services likely to result from their entry into the community on the ground that such a:

… proposition overlooks the unique problem involved in utilization of raw land. Undeveloped land in a community is a limited resource which is difficult to conserve in a period of increased population pressure. The development of a new subdivision in and of itself has the counterprotective effect of consuming a substantial supply of this precious commodity, while at the same time increasing the need for park and recreational land. In terms of economics, subdivisions diminish supply and increase demand . … 1 ELR at 20225

The court found another reason for refusing to hold subdivisions responsible for the increased cost of other government services in the wording of the statute which authorizes the municipality to require the dedication of open space as a condition for approval of the subdivision map. Section 11546 of the California Business and Professions Code requires that the dedicated land or the in-lieu fees be used for the recreation needs of the subdivision which renders the payment. "Since the increase in residents creates the needs for additional park land and the land or fees are used for facilities for the new residents, although not to the exclusion of others, the circumstances may be distinguished from a more general or diffuse need created for such areawide services as fire and police protection." 1 ELR at 20225

The court's position here does not seem entirely consistent with the arguments it advanced earlier on behalf of its position that, given the existence of a certain number of preconditions, a subdivider's fees might be used to purchase recreational space which would not directly benefit his subdivision (see discussion, supra). The court had argued that in such cases the extent or location of the land dedicated or the amount of the fee required might be determined by an objective ratio of aggregate open space and total community population, and not necessarily with reference to the direct benefits from the dedication accruing to the subdivision. The court, in other words, seemed to be recognizing the diffuse nature of open space requirements. Yet here, at least insofar as statutory interpretation is concerned, the court is [1 ELR 10113] predicating its distinction between the cost burden for open space and the cost burden for other community services on the more diffuse nature of the latter.

The court also rejected the developer's proposed analogy between a subdivider who is required to dedicate land or pay fees for open space purposes and an apartment building developer on whom no such requirement is imposed. The court found that while the apartment building might contain as many residential units as the subdivision — and might thus place an identical strain on the existing recreational facilities — the legislature might reasonably have assumed that an apartment house would not diminish the supply of open space to the extent that it would be decreased by the development of a subdivision.This "significant distinction," the court felt, justified separate legislative treatment. It is the confluence of increasing population and decreasing open space which presents the problem, and not merely population pressures alone. An apartment building, which contributes to only one part of the equation, need not be subject to the requirements of a subdivision, which affects both.

The developers had contended that the dedication requirement in effect imposed a double tax on the future residents of the subdivision by obliging them to pay for both the initial cost of the park (in the form of higher purchase prices on their houses) and for its continued maintenance (in the form of annual property taxes, which are higher due to the inflated purchase price). The court disposed of the argument by saying: (1) that if the developers did not actually pay for the dedication but in fact passed its cost on to their customers, a "serious question" would arise as to their standing, as they could not be shown to have suffered any economic detriment and were not authorized to represent their future customers, (2) that the two levies did not amount to double taxation,⁵ and (3) that if the rationale behind their argument were to be accepted, the prior residents of the community could also claim double taxation, as it was they who had paid for the acquisition and maintenance of the facilities which the residents of the subdivision would now enjoy.

The foregoing legal analysis is unlikely to help determine who will bear the economic costs imposed by the use of the dedication technique discussed in this comment. The importance of this issue corresponds directly to the importance of the dedication technique itself as a means of preserving suburban open space. High costs may prove a very real obstacle to the technique's widespread use, because it seems inevitable that developers will pass the cost of open space dedication on to their customers, and that this shifting of the incidence of costs will further contribute to the already wide disparity between subdivision costs. The most desirable subdivisions (i.e. those with the most open space) are likely to be the most expensive. Indirectly, this may be an emerging area of conflict between "environmental" and "social" objectives, as the land thus spared may also be placed forever beyond the reach of the inner city poor.

While enforced dedication may have the effect of inflating the cost of suburban home ownership at the expense of the less affluent consumer, the payment of fees in lieu of dedication may weight the scales in a different direction. To the extent that (1) fees paid by the residents of a wealthy subdivision contribute to a parks and recreation fund serving the entire community and (2) the community has poor (or poorer) people, the fees may be regarded as a progressive tax paid by subdivision residents which can be used to subsidize the recreation costs of their poorer neighbors. The problem with this analysis, however, is its presupposition that the community contains a sufficiently wide spectrum of income groups. While there are some suburbs which contain both very rich and very poor residents, they tend to be the older suburbs, located close to the urban center. Most subdivision is presently taking place on the urban-rural fringe, however, and communities on the urban periphery tend to be more economically homogeneous. Their need is to preserve land from development. The use of fees as a progressive tax in which richer people subsidize poorer ones, therefore, will have importance only insofar as the body to whom the fees are paid has regional planning responsibilities, and can use money derived from one community for solving open space needs in another.

1. 21 Assembly Interim Com. Report, Municipal and County Government 33-34, cited in Associated Home Builders of the Greater East Bay, Inc. v. City of Walnut Creek, S.F. 22787 (Sup. Ct. Cal. April 26, 1971), 1 ELR 20224 (fn. 4)

2. Billings Properties, Inc. v. Yellowstone County, 394 P2d 182 (Mont. 1964); Jenad, Inc. v. Village of Scarsdale, 271 N.Y.S.2d 955 (New York 1966); Jordan v. Village of Menomenee Falls, 137 N.W.2d 442 (Wis. 1965); but see Pioneer Trust & Savings Bank v. Village of Mount Prospect, 176 N.E.2d 799 (Ill. 1961).

3. Zilavy, Comment, 1961 Wis. L. Rev. 310, fns. 1 and 2

4. "The parties have stipulated that if a subdivision is located within three-fourths of a mile from elementary school grounds or a neighborhood or community park, the city uses the fees provided by the subdivider for improving such recreation areas rather than for the purchase of additional park land." 1 ELR at 20226, fn. 16

5. The court adopted the definition of double taxation as "two taxes of the same character, imposed on the same property, for the same purpose, by the same taxing authority within the same jurisdiction during the same taxing period." (Rhyne, Municipal Law, p. 673) 1 ELR 20225. It is hard to conceive of any two taxes falling within the purview of that definition.