Recent developments in comprehensive planning law

Urban Lawyer

Volumn 42, Issue 3, 2010, Pages 665-676

  Sullivan, Edward J ^a  

^a ST JOHN'S UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

DECISION MAKING; LAND USE PLANNING; LEGAL SYSTEM; PLANNING LEGISLATION; TOWN PLANNING; ZONING POLICY;

CITRUS;

EID: 78249232347     PISSN: 00420905     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (145)

1. Advisory Comm. on Zoning, Standard Zoning Enabling Act (U.S. Dep't. of Commerce, rev., 1926), available at https://myapa.planning.org/growingsmart/pdf/ SZEnablingAct1926.pdf.
2. Id. at 6.
3. This categorization was first set out in Edward J. Sullivan & Lawrence Kressel, Twenty Years After: Renewed Significance of the Comprehensive Plan Requirement, 9 Urb. L. Ann. 33 (1975)
4. The "twenty years" refers to the period since the publication of the seminal article on the significance of plans by Professor Charles M. Haar. See Charles M. Haar, In Accordance with a Comprehensive Plan, 68 Harv. L. Rev. 1154 (1955) (examining the effectiveness of this statutory requirement, concluding that, notwithstanding the text, the appellate courts of most states neither required a separate plan, nor required conformity of zoning regulations to any plan that was adopted).
5. 975 A.2d 1241 (Conn. 2009).
6. Id. at 1244.
7. Id. at 1245;
8. Conn. Gen. Stat. § 8-23(d)(1) (2010) (detailing the procedure for adoption of a plan).
9. Aspetuck Valley, 975 A.2d at 1250-51;
10. Conn. Gen. Stat. § 12-107e(a) (requiring that a majority of a municipal legislative body adopt plans).
11. See Aspetuck Valley, 975 A.2d at 1250-51;
12. see also Silver Eagle Dev. Trust v. Durham Planning & Zoning Comm'n., No. CV084008446, 2009 WL 2035241, at *21 (Conn. Super. Ct., June 12, 2009) (upholding local regulations that have been adopted);
13. CMB Capital Appreciation, L.L.C. v. Town of North Haven Planning & Zoning Comm'n., Nos. HHBCV074014281S, HHBCV074013545S, 2009 WL 2035240, at *18 (Conn. Super. Ct. June 11, 2009) (requiring a zoning board to approve the plaintiff's application since there was no adopted plan).
14. No. CV074008825S, 2008 WL 5540368, at *1 (Conn. Super. Ct. Dec. 10, 2008).
15. Id. at *2.
16. Id. at *5.
17. 289 S.W.3d 90 (Ark. 2008).
18. Id. at 95.
19. 194 P.3d 1 (Kan. 2008).
20. Id. at 4. Under Kansas case law, one of the reasonableness factors was conformity of the proposed action to the city's master or comprehensive plan.
21. See Golden v. City of Overland Park, 584 P.2d 130 (Kan. 1978).
22. Manly, 194 P.3d at 11.
23. 967 A.2d 702 (Me. 2009).
24. Id. at 707-11.
25. Id. at 708.
26. Id. at 709.
27. 962 A.2d 484 (N.J. 2008).
28. Id. at 486.
29. Id. at 487.
30. N.J. Stat. Ann. § 40:55D-62(a) (West 2010).
31. Riya Finnegan L.L.C., 962 A.2d at 489
32. quoting Manalapan Realty L.P. v. Twp. Comm. of Manalapan, 658 A.2d 1230, 1239 (N.J. 1995)
33. see also Francis v. Bremer County Bd. of Supervisors, 776 N.W.2d 886 (Iowa Ct. App. 2009) (holding that consistency with plan policies did not entitle a landowner to rezoning).
34. Riya Finnegan L.L.C., 962 A.2d at 494. Two justices dissented and would have found the township's action reasonable.
35. See id. at 494-99
36. see also Capital Fitness of Arlington Heights v. Vill. of Arlington Heights, No. 1-07-0559, 2009 WL 2997942, at *13-14 (Ill. App. Ct. Sept. 17, 2009) (requiring conformity of the plan as a whole, so that not all individual parcels must be consistent).
37. Compare Friends of Williamson Valley, Inc. v. Yavapai County No. 1 CA-CV 08-0512, 2009 WL 1710270, at *1 (Ariz. Ct. App. June 18, 2009)
38. (interpreting Ariz. Rev. Stat. Ann. § 11-821(c)(2) (2010) so that an adopted comprehensive plan serves as the "official guide" for development in the area, not requiring plan consistency, and finding the plan to be a "statement of aspirations")
39. with Schaeffer v. Town of Hillsborough, 681 S.E.2d 866 (N.C. Ct. App. 2009) (holding that only the local ordinance, rather than the plan, is dispositive under the statutory consistency language)
40. 218 P.3d 816 (Mont. 2009).
41. Id. at 824
42. see also Powell County v. Country Vill. L.L.C., 217 P.3d 508 (Mont. 2009) (holding that the county governing body "must be guided by and give consideration" to the recommended growth policy).
43. 870 N.Y.S.2d 422 (App. Div. 2008).
44. Id. at 425
45. quoting N.Y. Town Law § 263 (Consol. 2010).
46. Id.
47. Id.
48. See id. at 426-27. Similarly, a New Jersey court gave little deference to a conclusory finding that the grant of a use variance was inconsistent with the Master Plan in siting a high school annex
49. See Bd. of Educ. v. Zoning Bd. of Adjustment, 977 A.2d 1050 (N.J. Super. Ct. App. Div. 2009)
50. No. L-08-1151, 2009 WL 806903, at *1-6 (Ohio Ct. App. 2009).
51. Id. at *3 (citations omitted).
52. See id. at *4-6.
53. 97 Cal. Rptr. 3d 636 (Ct. App. 2009).
54. Id. at 648.
55. Id.
56. Id. at 649.
57. Id. at 651.
58. 91 Cal. Rptr. 3d 571 (Ct. App. 2009).
59. Id. at 599. More specifically, the court said: A project is consistent with the general plan "if, considering all its aspects, it will further the objectives and policies of the general plan and not obstruct their attainment." A given project need not be in perfect conformity with each and every general plan policy. To be consistent, a subdivision development must be "compatible with" the objectives, policies, general land uses and programs specified in the general plan.
60. Id.
61. (citing Families Unafraid to Uphold Rural El Dorado County v. Bd. of Supervisors, 74 Cal. Rptr. 2d 1, 3 (Ct. App. 1998)) (citations omitted).
62. An unreported Delaware case came to the same conclusion in Brohawn v. Town of Laurel, No. 2781-CC, 2009 WL 1449109, at *1-6 (Del. Ch. May 13, 2009), in which the court observed: The State delegates zoning authority to municipalities, but this delegation comes with the condition that zoning ordinances are to be prepared and adopted consistent with comprehensive plans which are approved by the State. Once adopted, "[a] comprehensive plan shall have the force of law and no development shall be permitted except as consistent with the plan." This requirement "is, of course, no mere technicality." Indeed, the consistency requirement is a "'fundamental feature' of the scheme of delegation of zoning authority to municipalities by the State."
63. Id. at *7 (citations omitted).
64. Cal. Native Plant Soc'y, 91 Cal. Rptr. 3d at 599-601. However, the city's decision was remanded for failure to adhere to another plan policy regarding coordination with federal agencies in the mitigation of impacts.
65. Id. at 601-03.
66. 2 So. 3d 329 (Fla. Dist. Ct. App. 2008).
67. "A local comprehensive land use plan is a statutorily mandated legislative plan to control and direct the use and development of property within a county or municipality. The plan is likened to a constitution for all future development within the governmental boundary." Id. at 336
68. (quoting Machado v. Musgrove, 519 So. 2d 629, 631-32 (Fla. Dist. Ct. App. 1987)). Once a comprehensive plan has been adopted pursuant to the Local Government Comprehensive Planning and Land Development Regulation Act, "all development undertaken by, and all actions taken in regard to development orders by, governmental agencies in regard to land covered by such plan" must be consistent with that plan.
69. Id.
70. quoting Fla. Stat. § 163.3194(1)(a) (2007).
71. Id. at 336-40. A dissent found the allegations of the complaint insufficient.
72. Id. at 340-41 (Pleus, J., dissenting).
73. 8 So. 3d 413 (Fla. Dist. Ct. App. 2009).
74. Id. at 415
75. citing The Bert J. Harris, Jr. Private Property Rights Protection Act, Fla. Stat. § 70.001 (2005).
76. See id. at 421.
77. No. COA08-1087, 2009 WL 2793456, at *1-10 (N.C. Ct. App. Sept. 1, 2009).
78. The state law provides: [z]oning regulations shall be made in accordance with a comprehensive plan. When adopting or rejecting any zoning amendment, the governing board shall also approve a statement describing whether its action is consistent with an adopted comprehensive plan and any other officially adopted plan that is applicable, and briefly explaining why the board considers the action taken to be reasonable and in the public interest. That statement is not subject to judicial review. N.C. Gen. Stat. § 160A-383 (2010).
79. Coucoulas/Knight Properties, L.L.C., 2009 WL 2793456 at *7.
80. A South Dakota case, Goos RV Ctr. v. Minnehaha County Comm'n, 764 N.W.2d 704 (S.D. 2009), upheld a conditional use permit for gravel extraction as consistent with respondent's comprehensive plan, but reviewed the rezoning as a legislative matter for which there was a limited scope of review.
81. Id.
82. see also Union Twp. v. Ethan Michael, Inc., 979 A.2d 431 (Pa. Commw. Ct. 2009) (holding that the granting of the applications for special exceptions to develop a recreational motor sports park/racetrack and a commercial campground on their properties was supported by substantial evidence and met the necessary requirements).
83. No. COA08-796, 2009 WL 2367051, at *1-4 (N.C. Ct. App. Aug. 4, 2009).
84. Id. at *4 (citations omitted).
85. Id. (citations omitted).
86. Id.
87. 215 P.3d 956 (Wash. Ct. App. 2009).
88. See id. at 959-60.
89. See id. at 960-61.
90. Similarly, in City of East Wenatchee v. Wash. State Boundary Review Bd., No. 26615-0-III, 2009 WL 271242, at *1-5 (Wash. Ct. App. Feb. 5, 2009), the board's findings of consistency with local comprehensive plans to support an annexation were found not to be consistent with applicable comprehensive plans and state law, which imposed an obligation to protect agricultural lands designated in such plans.
91. Id. at *5
92. The board found that the lands at issue were of "marginal productivity and minimal long-term agricultural use." Id. at *3
93. However, the court concluded that the board was not authorized to make its own land use decisions, but was required to follow the applicable plans. Id. at *5.
94. Fla. Hometown Democracy, Inc., Referenda Required For Adoption And Amendment of Local Government Comprehensive Land Use Plans (2010), http://www.floridahometowndemocracy.com/questions.htm#amendmentfourwhat. The proposal would amend Fla. Const. art. II, § 7 and was presented by Florida Hometown Democracy, Inc. PAC.
95. See Burns Holdings L.L.C. v. Madison County Bd. of County Comm'rs, 214 P.3d 646, 649-50 (Idaho 2009)
96. citing Giltner Dairy L.L.C. v. Jerome County, 181 P.3d 1238 (2008).
97. 210 P.3d 532 (Idaho 2009).
98. Id. at 545-47. In doing so, the court noted that the land use map was one element of the comprehensive plan and that ambiguities over the location of uses were not necessarily fatal to an application if it were otherwise found consistent with the policies and other elements of the plan.
99. Id.
100. 978 A.2d 622 (Md. 2009).
101. Id. at 641.
102. The ordinance may well have been a response to the court's decision in Trail v. Terrapin Run L.L.C., 943 A.2d 1192, 1194-95 (Md. 2008) which did not strictly enforce the conformity requirement. In Trail, the question was whether the ordinance was a change in substantive law, immediately applicable or not.
103. Id. at 1194-95.
104. Grasslands Plantation, Inc., 978 A.2d at 643-44. However, the court declined to determine whether the ordinance improved the challengers' position on plan conformity, because the issue was not preserved.
105. Id. at 644-45.
106. In Bruggeman Constr. Co. v. City of Stillwater, No. A08-1747, 2009 WL 2226068, at *1-3 (Minn. Ct. App. July 28, 2009), the court declined to reach an applicant's challenge to a plan amendment, rezoning and annexation of land because it determined respondent correctly found that transportation facilities were inadequate.
107. 213 P.3d 1259 (Or. Ct. App. 2009).
108. Johnson v. Jefferson County, 56 L.U.B.A. 25, 51-57, (Feb. 11, 2008)
109. aff'd, 189 P.3d 34 (Or. Ct. App. 2008). Petitioners in Friends of Metolious also participated in Johnson.
110. Id. at 28.
111. See Friends of the Metolious, 213 P.3d at 1261.
112. Id, at 1262.
113. However, in GMK Developments, L.L.C. v. City of Madras, 199 P.3d 882 (Or. Ct. App. 2008), the same court determined that a city was not required to amend its urban growth boundary immediately in the light of new data added to its comprehensive plan to accommodate growth over a twenty to fifty year period.
114. Id. at 884-85
115. That subsequent amendment, and challenges thereto, could be left to another day. See id.
116. 201 P.3d 210 (Or. Ct. App. 2009).
117. Or. Admin. R. 660-012-0010 (2010).
118. Woodward, 201 P.3d at 214.
119. 671 S.E.2d 794 (W. Va. 2008).
120. Id. at 796.
121. But see Jefferson County Citizens for Econ. Pres. v. County Comm'n, 686 S.E.2d 16 (W. Va. 2009) (finding that respondent violated no statutory procedure for adoption of zoning amendments for conformity with the local comprehensive plan and reversing a trial court decision that held the amendments invalid).
122. 193 P.3d 1077 (Wash. 2008).
123. Id. at 1091;
124. see also Futurewise v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 150 Wash. App. 1041 (Ct. App. 2009) (holding that the complainant did not provide support for its argument that the board erroneously interpreted the act's requirement for housing development as purely optional and as a result affirming the dismissal of the complainant's petition).
125. Id. at 1091.
126. 87 Cal. Rptr. 3d 365 (Ct. App. 2009).
127. Id. at 396-97. However, the interpretation of the plan could be erroneous and challenged on that basis.
128. 13 So. 3d 115 (Fla. Dist. Ct. App. 2009).
129. Id. at 120. Additionally, the court noted that it construed silence with regard to a particular land use to be equivalent with intent not to authorize that use.
130. Id. at 118
131. see also Viet USA, Inc. v. Sherburne County, No. A08-0581, 2009 WL 605722, at *1-4 (Minn. Ct. App. 2009) (holding that the county cannot rely on interpretation of "irrelevant" city plan to deny gravel extraction permit).
132. 760 N.W.2d 108 (N.D. 2009).
133. Id. at 114-15 (noting that the city's Land Development Code, as a whole, formulates a comprehensive plan to inform landowners of permissible uses).
134. 903 N.E.2d 1236 (Ohio Ct. App. 2008).
135. Id. at 1241.
136. 964 A.2d 1141 (R.I. 2009).
137. Id. at 1147. In fact, the sale may have been consistent with the plan's goal of creating additional affordable housing
138. See also In re N.J. Meadowlands Comm'n Resolution, No. 08-30, 2009 WL 1887163, at *1-2 (N.J. Super. Ct. App. Div. July 6, 2009) (upholding location of a commuter parking and bus facility for a rail station as consistent with its plan).
139. No. 03-08-00226-CV, 2008 WL 4603569, at *1-10 (Tex. Comm'n App. Oct. 16, 2008).
140. Id. at *10. Austin provided in its code that all land uses must be consistent with the city's plans.
141. See Austin, Tex. Ordinance 030327-11b (2010).
142. On the other hand, in SP Star Enterprises, Inc. v. City of Los Angeles, 93 Cal. Rptr. 3d 152 (Ct. App. 2009), a conditional use permit standard which included "harmony with the various elements and objectives of the General Plan" could be used as a basis for denial of an adult nude entertainment club where alcohol consumption would be permitted.
143. Id. at 168.
144. 201 P.3d 1096 (Wash. Ct. App. 2009).
145. Id. at 1102-03.