Ensuring Continuing Community Amenities Through Golf Course Redevelopment

19 Pages·2016·0.32 MB·English

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Scholarly Works Faculty Scholarship
2007
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Patricia E. Salkin
Touro Law Center, [email protected]
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35 Real Est. L.J. 628 (2007)
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sameyear,2golfcoursesstarted
atthesametimetobecomeless
Zoning and
pro(cid:2)table. Combined with the
Land Use attractiveness of large tracts of
land to developers and increas-
Planning ingpropertyvalues,golfcourse
owners have found themselves
underpressuretoselltheirland
P E. S *
ATRICIA ALKIN for more pro(cid:2)table uses.3 In-
deed, between 2000 and 2005,
golf course closings rose from
a rate of twenty-three per year
Ensuring Continuing
to more than ninety.4 In 2005,
Community Amenities
theAmericangolfindustrysaw
Through Golf Course
its (cid:2)rst overall decline in the
Redevelopment
numberofcoursessince1945.5
The golf courses most often
I. Introduction
under strain are older courses,
The rate of golf course con- which are typically in need of
struction grew dramatically in costly repairs or renovations.6
the 1990s, reaching a peak in Additionally,itisoftenthecase
2000 with nearly four hundred that the once rural areas in
course openings in the United which these courses were built
States.1 However, with the havebecomesuburbanizedand
number of golfers peaking the built up, thereby increasing the
*PatriciaE.SalkinisAssociateDeanandDirectoroftheGovernmentLaw
CenterofAlbanyLawSchool.DeanSalkinisgratefulfortheresearchassis-
tanceofAlbanyLawSchoolstudentsAmyLavineandTonyLi.
1DennisCauchon,BackninemaysoonbecomeaStarbucks—orasubdivi-
sion,USAToday,Sep.1,2006(measuringclosuresin18-holeequivalents).
2See National Golf Foundation, Frequent Questions, http://www.ngf.org/
cgi/whofaqgolfers.asp?(lastvisitedJan.27,2007).
3SeeCauchon,supranote1.
4Id.
5Id.(countingtemporaryclosures).
6AlanBlondin,OverbuiltMyrtleBeachleadstocoursesales,TheMyrtle
BeachSunNews(SouthCarolina),Feb.4,2005.Theaveragelifeofagolf
courseisbetweentwentyandthirtyyears,afterwhichpointcoursesbeginto
physically settle and require often extensive irrigation repairs, restructuring
anddrainageimprovements.Id.
628
ZONINGANDLANDUSEPLANNING 629
value and the demand for the communityresidentsasprovid-
property to be put to other ing important areas of open
uses.7 Public golf courses also spaceandrecreationalopportu-
tendtobelesseconomicallyvi- nities, and neighboring land
able than private or semi- owners often rue the possibil-
private clubs, and shorter ity that housing complexes or
courses tend to be less popular mixed-use developments will
than longer ones.8 Courses lo- replace their once pastoral
cated in over-saturated gol(cid:2)ng views and lower their property
resort areas have also been values.11 Additionally, the de-
heavily a(cid:3)ected by the slow- velopments that replace golf
downinindustrygrowth.9 courses often place increased
While the closure of such burdensonessentialinfrastruc-
outdated or otherwise unpro(cid:2)t- ture and municipal services.12
able courses may be bene(cid:2)cial Counties and municipalities
to the golf industry as whole,10 mayfavortheapprovalofthese
the decision to close a golf redevelopments because they
courseinordertoredevelopthe will add to the tax base13 and
land often raises di(cid:1)cult land because of a desire to avoid lit-
use planning and community igation over property rights
development issues. Golf issues. From an industry per-
courses are viewed by many spective, in areas where golf
7Id.
8YelenySuarez,KeepingtheGreens,SouthFloridaCEO,Dec.2006,at
53,54.
9SeeBlondin,supranote6.
10Redevelopmentisoftensupportedinresortareaswithhighconcentrations
ofgolfcourses.Inthesesettingsconvertinggolfcoursestootherusesmaybe
seen as a method of diversifying tourist attractions and making remaining
coursesmoreviablebydecreasingcompetition.Forexample,inMyrtleBeach,
aSouthCarolinaresortdestinationwithmorethan120golfcourses,theequiv-
alent of 18.5 courses have closed since 2001. Of these properties, develop-
ment plans have included several malls and shopping centers, resort hotels,
andamarina,inadditiontothemixed-useresidentialandretailcommunities
thatcommonlyreplacegolfcourses.SeeBlondin,supranote6.
11Homes located next to golf courses can be worth up to three times the
amount of comparable properties not situated near golf courses. Roger M.
Showley, Fore better or worse; Could golf course land help ease housing,
budget crises?, The San Diego Union-Tribune, Aug. 17, 2003, at I-1.See
alsoBlondin,supranote6.
12SeeBlondin,supranote6.
13SeeCauchon,supranote1.
630 REALESTATELAWJOURNAL[VOL.35:6282007]
courses have been overbuilt, commercial development, oth-
the redevelopment of certain ersaremorerestrictivelyzoned
courses may also be viewed as as agricultural, recreational, or
a natural consequence of open space.15 While such re-
healthy competition and bene- strictive zoning may curtail
(cid:2)cial to surviving courses.14 At developmente(cid:3)ortstoacertain
the same time, prepared mu- extent, eventually requests for
nicipalities may view golf rezoning are made after all of
courseredevelopmentasanop- the surrounding properties
portunity to plan for and nego- have been developed and the
tiate for new community golf courses are no longer as
bene(cid:2)ts. pro(cid:2)table as initially
This column examines some anticipated. Municipalities
of the issues faced by munici- may choose to grant rezoning
palitieshopingtopreservetheir requests in order to allow for
golf courses or to ensure their golf course redevelopment, but
strategic redevelopment, con- community interests in pre-
sistent with local community serving open space and retain-
development goals. The col- ing recreational facilities often
umnfocusesonhowlocalgov- leadmunicipalitiestorejectap-
ernments can most e(cid:3)ectively plications for wholesale rezon-
employ planning and zoning ingoftheselands.
techniques to ensure that com-
A. The Comprehensive
munityamenities,includingaf-
Plan
fordable housing and recre-
ational areas, are an important
Most state statutes require
componentofgolfcourserede-
that zoning regulations be de-
velopmentprojects.
veloped and implemented in
accordance with the compre-
II. Conventional Zoning
hensivelanduseplan.Thetypi-
and Land Use
cal comprehensive plan is the
Regulations
articulation of a shared vision
While many golf courses forthefuturegrowthanddevel-
may be zoned to allow for a opment of the municipality. It
certainamountofresidentialor often contains a series of ele-
14SeeSuarez,supranote8,at53.
15SeeAlanBlondin,Coursesfallpreytodevelopment:Closuresrisedespite
housing glut, irritating many residents, The Myrtle Beach Sun News
(SouthCarolina),Sep.30,2006(describinggolfcourseszonedasgeneralres-
identialandforest/agricultural)[hereinafterCoursesfallprey].
ZONINGANDLANDUSEPLANNING 631
ments which may or may not allyzonedforresidentialdevel-
be required by statute. These opment, the Supreme Court of
elements may include: demo- Minnesota found that the com-
graphic trends; housing stock prehensive plan was control-
and future housing needs; an ling, (cid:2)nding that the city did
inventory of public infrastruc- not act arbitrarily in denying
ture and anticipated future in- the development permits. The
frastructureneeds;existingrec- court explained that ‘‘[a] mu-
reational facilities and nicipality has legitimate inter-
anticipated needs; transporta- estsinprotectingopenandrec-
tion infrastructure; economic reational space, as well as
development goals; open rea(cid:1)rming historical land use
space; and lands dedicated for designations.’’17 However, the
agricultural use. Municipalities court also emphasized that its
who have developed and decision did not permanently
adopted comprehensive plans prohibitthedevelopmentofthe
and then enact land use regula- parcel,astheownerwasfreeto
tionstoimplementtheplanele- negotiate with the city.18 Fur-
ments usually (cid:2)nd court sup- thermore, the court speci(cid:2)cally
port for their decisions when stated that its judgment would
theiractionsareconsistentwith not prevent the golf course
theplan. owner from initiating a regula-
For example, the city of torytakingschallenge.19
Mendota Heights, a suburb of The regulatory takings ques-
St. Paul, justi(cid:2)ed its refusal of tion was raised several months
plans to convert the Mendota later in a similar case, involv-
HeightsGolfCourseintoares- ing the Carriage Hills Golf
idential development by refer- Course in Eagan, another Twin
encetoitscomprehensiveplan, Cities suburb.20 As in Mendota
which recommended that the Golf, the court found that the
golf course be retained as open ‘‘historicuseofthepropertyas
space.16 Regardless of the fact a golf course, the recent update
that the golf course was actu- ofthecomprehensiveplan,and
16See Mendota Golf, LLP v. City of Mendota Heights, 708 N.W.2d 162
(Minn.2006).
17Id.at181.
18Id.at182.
19Id.
20See Wensmann Realty, Inc. v. City of Eagan, 2006 WL 1390278 (Minn.
Ct.App.2006),reviewgranted,(Aug.15,2006).
632 REALESTATELAWJOURNAL[VOL.35:6282007]
the public hearing comments property’s value on ‘‘[v]arious
indicating that citizens valued other factors . . . including
theopenspaceandrecreational nationaltrends,overbuildingin
opportunities provided by a thearea,andthesizeofthegolf
golf course’’ constituted legiti- course.’’23 Secondly, the court
mate justi(cid:2)cations for the de- found that the denial of the ap-
nialoftheapplicationtoamend plication to amend the compre-
the land use plan.21 In response hensive plan did not interfere
to the developer’s assertion with investment-backed expec-
that these justi(cid:2)cations were tations, as the owner had
vague, the court noted that the bought the property with the
cityhadalsoreliedonconcerns intent of operating a golf
that the proposed mixed-use course.24 Finally, because the
residential development and character of the regulation was
the accompanying population to support ‘‘broad and substan-
growth would aggravate tra(cid:1)c tial interests,’’ the court held
congestion and overcrowd city thataregulatorytakinghadnot
schools.22 Concerning the tak- occurred.25 Like the preceding
ings claim, the court applied Minnesota case, the court here
the Penn Central test, taking also stressed that its decision
into consideration the eco- did not permanently bar devel-
nomic impact of the govern- opmentontheproperty.
mentaction,theinterferenceof New York’s highest court
that action with investment- has also recognized the preser-
backed expectations, and the vationofopenspaceandrecre-
character of the contested gov- ationalareasaslegitimateplan-
ernment action. The court ning interests supporting
found(cid:2)rstthatthecity’srefusal municipal land use decisions
to amend the comprehensive favoring the retention of golf
plan did not diminish the prop- courses.InBonnieBriarSyndi-
erty’s value, as it merely main- catev.TownofMamoroneck,a
tained the ‘‘existing long-term Westchester County golf
use of the property[.]’’ Rather, course owner challenged as an
it attributed impacts to the unconstitutional taking the
21Id.at5.
22Id.at6.
23Id.at9.
24Id.
25Id.at12.
ZONINGANDLANDUSEPLANNING 633
down-zoning of its property designations would further the
fromresidentialtorecreational, sameinterests.29
just months after it had (cid:2)led a Not all courts have been re-
plan to construct a residential ceptive to the restrictive zon-
subdivision on the property.26 ingofgolfcourses,particularly
As it had been conceded that where a proposed redevelop-
thezoninglawdidnotdenythe ment appears to be consistent
plainti(cid:3)ofallviableusesofthe with the community plan. The
property, the court found that Pennsylvania Supreme Court,
‘‘[b]ecause zoning plainti(cid:3)’s for example, overruled a mu-
property for solely recreational nicipal refusal to rezone the
usebearsareasonablerelation- Valley Forge Golf Club prop-
ship to the legitimate objec- erty in order to permit the con-
tives stated within the law (to struction of a mixed-use resi-
furtheropenspace,recreational dential complex.30 The Valley
opportunities, and (cid:4)ood con- Forge case, however, di(cid:3)ered
trol), the regulatory action here signi(cid:2)cantly from the Minne-
substantially advances those sota and New York cases. Per-
purposes.’’27Inmakingthisde- haps the most striking di(cid:3)er-
termination, the court stressed ence was that the golf course
that the zoning change had was located immediately adja-
beenthesubjectofseveralland cent to the Court and the Plaza
use studies and had been rec- at King of Prussia, the largest
ommended repeatedly.28 Ad- mall in the United States.31 Be-
ditionally, the court disagreed cause the golf course was sur-
with the owner’s contention roundedbyhigh-densitydevel-
that the zoning law was invalid opment,makingitsagricultural
because less restrictive zoning zoning seem particularly aber-
26BonnieBriarSyndicate,Inc.v.TownofMamaroneck,94N.Y.2d96(N.Y.
1999).
27Id.at108.
28Id.Restrictingtheusesofthegolfcoursewas(cid:2)rstrecommendedin1966.
Id.at102.
29Id.at108.
30SeeInreAppealofRealenValleyForgeGreenesAssociates,576Pa.115
(Pa.2003).
31Id. The King of Prussia mall wins this title only for square footage; the
MallofAmerica,incidentallylocatedwithindrivingrangeofthetwoMinne-
sotagolfcoursesdetailedabove,hasmorestores.SeeLargestShoppingMalls
in the United States, http://www.easternct.edu/depts/amerst/MallsLarge.htm
(lastvisitedJan.24,2007).
634 REALESTATELAWJOURNAL[VOL.35:6282007]
rant, the zoning board’s denial a factor taken into account by
of the rezoning request did not the zoning board,35 it did not
emphasize its intentions to pre- explain whether that particular
serve open space and recre- justi(cid:2)cation was unreasonable
ational opportunities for the or arbitrary. This aspect of the
community.32 Using the stan- decision did not go unnoticed
dard that ‘‘a zoning ordinance by the dissenting judge, how-
mustbepresumedconstitution- ever, who pointed out that the
majority did not consider the
ally valid unless a challenging
factthatthepropertywasmain-
party shows that it is unreason-
tained as a golf course—pro-
able, arbitrary, or not substan-
viding open space and recre-
tially related to the police
ational opportunities—in its
power interest that the ordi-
determination that the property
nance purports to serve,’’ the
was not unique. Under the spot
court held the retention of the
zoning analysis, such a (cid:2)nding
agricultural designation was
of uniqueness would have jus-
unreasonable and constituted
ti(cid:2)ed the anomalous zoning of
reverse spot zoning.33 As the
the property in relation to the
courtexplained,‘‘nocharacter-
surrounding parcels.36 Addi-
istic of the Golf Club’s prop-
tionally,thedissentpointedout
erty justi(cid:2)es the degree of its
that the majority also ignored
developmental restriction by
the zoning board’s reliance on
zoning as compared to the dis- other public interests including
trict designation and use of all the ‘‘prevention of overcrowd-
of the surrounding lands. . . . ing of land and congestion in
Thisisspotzoning.’’34 travel and transportation.
Although the Valley Forge . . . ’’37
court did recognize that the Although the most telling
preservation of open space was di(cid:3)erence between the Valley
32InreAppealofRealenValleyForgeGreenesAssociates,576Pa.at129.
33Id.at135-38.
34Id. at 135-36. The term ‘‘reverse spot zoning’’ describes those circum-
stancesinwhichtheinconsistentzoningdesignationisproducedovertimeas
neighboringpropertiesarerezonedratherthanbyadirectactionsinglingout
thepropertyfordissimilartreatment.
35Id.at130.
36Id.at141.
37Id. at 145. Following the judgment, the municipality (cid:2)led a request to
havethedecisionwithdrawnduetoanallegedcon(cid:4)ictofinterestbetweenthe
judgewhowrotethemajorityopinionandtheplainti(cid:3)developer.LarryRuli-
ZONINGANDLANDUSEPLANNING 635
Forge case and the cases in low-density residential areas,
which restrictive land use des- and the interests in preserving
ignations were upheld may be openspaceandrecreationalop-
the fact that the Pennsylvania portunities were based on ac-
municipality did not expressly tualpublicinput.Otherconsid-
base its zoning decision on erations,suchasenvironmental
goals in the comprehensive impacts and the e(cid:3)ects of de-
plansuchasthepreservationof velopment on infrastructures
open space and the availability and community services were
of recreational facilities, the also taken into account when
cases suggest that courts con- citedbyplanningboardsasjus-
fronted with such scenarios ti(cid:2)cations for their decisions.
will be in(cid:4)uenced by a number Furthermore, the courts have
of considerations. In the cases emphasized that restrictive
in which restrictive land use land use laws must retain a de-
regulations were sustained, the gree of (cid:4)exibility in order to
decisions to retain the proper- remain valid. These consider-
ties as golf courses were based ationshavealsobeentakeninto
on extensive land use planning account by cities and towns
processes and were recom- across the country that have
mended in recent comprehen- chosen to reject applications to
sive plan updates or land use modify land use designations38
planning reports. Additionally, ortorezonegolfcoursesbefore
these courses were located in they become the subjects of
son,Townclubsgolfcoursedevelopment,ThePhiladelphiaBusinessJour-
nal, Jan. 9, 2004. However, negotiations between the township and the
developer have seemed to remove the need for litigation. See Keith Phucas,
Par for the course, The Philadelphia Times Herald, Apr. 20, 2006. Ac-
cordingly, the ‘‘Village at Valley Forge’’ is likely to open in 2008, despite
continuedprotestsfromthecommunityconcerningdrainageandenvironmen-
tal problems. Id.; Anne Pickering, Glenhardie residents fear water runo(cid:4)
fromproposeddevelopment,TheSuburbanandWayneTimes(Pennsylva-
nia), Aug. 3, 2006, available at http://www.zwire.com/site/
news.cfm?newsid}17001897&BRD}1677&PAG}461&dept–id}82745
&r(cid:2)}6.Accordingtothedevelopmentplan,nosigni(cid:2)cantareasofopenspace
willbepreserved.DivarisRealEstate,Thebestlocationinthecountry!,http://
www.mypinwheel.com/accounts/pw 05132001/links/ValleyForge-11x17.pdf
–
(lastvisitedJan.24,2007).
38See, e.g., Laura McCandlish, Westminster Housing Complex Rejected;
While growth is e(cid:4)ectively shut down due to water de(cid:3)cit, project met with
protests,TheBaltimoreSun,Dec.12,2006,at3B(cityrejectingdevelop-
mentplanandrezoningrequestduetowater,openspaceandtra(cid:1)cconcerns);
The City of Hanahan, Resident outcry dooms golf course rezoning: Eagle
636 REALESTATELAWJOURNAL[VOL.35:6282007]
proposed redevelopments in Supreme Court’s Nollan and
order to ensure their retention Dolan cases so long as there is
asopenspaces.39 an‘‘essentialnexus’’40between
the exaction and the negative
B. Exactions and Impact e(cid:3)ects of the proposed devel-
Fees opmentandtheexactionisalso
‘‘roughly proportional’’41 to
Exactions and impact fees those e(cid:3)ects. Impact fees may
havelongbeenusedbymunici- be levied in lieu of exactions,
palities to obtain community in order to (cid:2)nance the mitiga-
amenities from developers tion of negative development
seeking rezoning or develop- e(cid:3)ects. Although nationally
mentpermits.Exactions,which there is some debate as to
place certain conditions on the whether the nexus and propor-
granting of such requests (such tionality tests apply to impact
asthepaymentofmoneyorthe fees, the Supreme Court re-
dedication of easements and/or manded an exactions case with
land), have faced many consti- directions to review it under
tutional challenges, but they Dolan, suggesting that impact
remain permissible under the fees are subject to similar con-
Landing owner could (cid:2)le appeal, http://www.cityofhanahan.info/
newsi.asp?newsid}62(citydenyingarezoningrequestinresponsetopublic
opinion expressing a desire to preserve green space) (last visited Jan. 24,
2007).
39See, e.g., Eric Kurhi, San Ramon adopts plan on golf course land-use,
OaklandTribune(California),Oct.14,2006(adoptinggeneralplanamend-
ment to create a golf course designation in response to public opposition of
earlier‘‘commercialrecreation’’designation);BruceC.Smith,Carmelscores
a hole-in-one: City purchases Brookshire Golf Club, preserving it for its
intendeduse,TheIndianapolisStar,Jan.6,2007(notingthatcityrezoned
the golf course as a park in 2002 in order to preserve green space); Jenna
Ross, City’s plan to preserve golf course stirs debate: The primary owner of
an Eden Prairie golf course wants to sell, but the city and neighbors say he
can’t—a stance that could cost him millions, Minneapolis Star Tribune,
Dec. 13, 2006 (city council considering the creation of a speci(cid:2)c golf course
zoning designation); Editorial, Out of Balance: Deer Track rezoning gave
residents rights they don’t really have, Myrtle Beach Sun News (South
Carolina), Nov. 21, 2006 (reducing zoning density allowance in response to
publicoppositiontohigh-densitydevelopment);KyleStock,GreenAcres:As
golf industry retrenches, more course owners seek to cash out, The Post and
Courier(Charleston,SC),Nov.20,2006,atE18(describingproposaltorezone
golfcoursesasconservationopenspace).
40Nollanv.CaliforniaCoastalCommission,483U.S.825,836-37(1987).
41Dolanv.CityofTigard,512U.S.374,384-86(1994).