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7-203 Issues and Opportunities Element (1) A local comprehensive plan shall contain an issues and opportunities element that shall serve as a source of direction in preparing other required and/or optional elements of the plan. (2) The purposes of the issues and opportunities element are to:
(3) In preparing the issues and opportunities element, the local planning
agency shall identify its primary characteristics (such as geography,
natural resource base, susceptibility to natural hazards, population,
demographics, major employers, labor force, political and community
institutions, housing, transportation, educational resources, and cultural
and recreational resources) and shall conduct research and data collection
to determine current and projected trends and their potential impacts.
The local planning agency may also conduct surveys, form task forces,
undertake visioning activities with citizens, and/or hold public workshops
to identify issues and opportunities, tangible and intangible assets
that make the local government unique and desirable,[138]
liabilities and potential threats to the quality of life of the local
government,[139] and other indications of significant
trends and forces affecting the local government and its citizens.
(5) Examples of topics that may be specifically addressed in the issues and opportunities element include: employment opportunities; technological change; housing; education; and recreational resources. (6) The issues and opportunities element [may or shall] also contain an alternate vision statement that documents any visions that were considered and rejected by the local government in the formulation of its local comprehensive plan. Commentary: Land-Use Element[40] The land-use element is a fundamental component of the local comprehensive plan, one that shows general distribution, location, and characteristics of current and future land uses and urban form.[141] The contents of and approach to the contemporary land-use element have been shaped by a number of writings and concepts. (1) Chapin, Urban Land Use Planning. In its four editions beginning in 1957, F. Stuart Chapin, Jr.'s Urban Land Use Planning framed the general techniques that many planners use in formulating the land-use plan. While the four editions differ to the extent that they reflect the increasing use of computer technology in plan making through data collection and modeling, the central contribution of this book (now coauthored with Edward Kaiser and David Godschalk) to the land-use design process defined a methodology of five tasks for developing a land-use plan:
The planner may go through this sequence several times and the tasks may be approached in different order as well as concurrently for different uses, with feedback between the tasks until an acceptable land-use design is reached that may be gauged against a set of objectives. Together, these five tasks emphasize documenting the basis on which land uses are forecast and located through the articulation of principles and standards. They are intended to establish a structure and a rationality for the planning process, one in which various assumptions could be tested and retested against planning goals. The resulting design is to be a match of locational criteria and projected space needs for different users of land with land supply. Other plans, such as transportation or community facilities, as well as regulations are to be based on the land-use design. (2) McHarg, Design with Nature. Landscape Architect Ian McHarg's Design with Nature (1969) added to the techniques of land-use planning the organization and interpretation of environmental information (e.g., soil characteristics, geologic features, existing vegetation, wildlife habitats, slope, etc.) into a series of graphic map overlays to determine whether the land was compatible for broad categories of land uses. In the McHarg approach, the land is analyzed for its intrinsic suitability; areas with development constraints or having high resource values (e.g., significant forests, areas of steep slopes, aquifer recharge areas, prime agricultural land) are first eliminated as candidates for urbanization. Other land areas without critical environmental or resource protection qualities are set aside for urbanization.[143] McHarg's approach was later incorporated by Kaiser, Godschalk, and Chapin under the term "land classification" planning which "concentrates future development into a few well-defined areas and delineates other areas where development should not occur"[144] (see below). (3) American Law Institute, A Model Land Development Code. In contrast to Kaiser, Godschalk, and Chapin and McHarg, the ALI Code (1976) did not prescribe a land-use planning technique. Instead, the Code addressed the question of how to define a land use element in a statute, which the Code called a "local land development plan." Under the Code, such a plan was to be a statement of objectives and programs to guide the public and private development of land within the local government's planning jurisdiction. The statement could be in the form of words, maps, illustrations or other media of communication. The land development plan was to be based on a series of problem-oriented planning studies that addressed such factors as population, geology, housing, natural resources, and the amount, general location, and interrelationship of different categories of land use. The plan was to project trends based on those studies. Finally, the plan had to contain a short-term program of public actions to be taken within a period of one to five years in order to achieve objectives, policies, and standards stated in the plan. The short-term program was also to indicate the types of future programs to be undertaken after that period.[145] The ALI Code emphatically rejected mandatory planning as a prerequisite for exercising land development control powers.[146] Instead, local governments that adopted plans received certain supplemental powers such as special procedures for regulating planned unit developments, and the reservation of land for future acquisition by public agencies. Also, the ALI Code did not require that the land development plan take into account the plans of adjoining local governments or of the state or regional planning agencies. Land-use Plan Prototype In addition to these conceptual influences on the land-use element, planning practice in the U.S. produced a number of different prototypes since the 1970s, characterized by Edward Kaiser and David Godschalk in an article in the Journal of the American Planning Association.[147] They note that these four plan styles are not mutually exclusive and that communities often combine aspects of each into a hybrid plan. Land-use design plan. The land-use design plan is the most common of the four prototypes and is a direct descendent of the Section 701 plans of the 1950s and 1960s, described above. Shaped by the writings of F. Stuart Chapin and T.J. Kent, the key component of such plans are land-use maps that depict present and future land uses according to traditional land use categories. Modern versions also contain mixed use and environmental land-use categories and explicitly address contemporary issues such as affordable housing, environmental conservation, and public facility needs. The award-winning Howard County, Maryland, General Plan (1990), provides a prime example of this planning prototype.[148] The land-use map in this plan divides the county into residential, commercial, office, industrial, mixed use, institutional, rural residential, rural conservation, and environmental protection areas. The land classification plan. The land classification plan, like the design plan, is spatially specific and map oriented. Unlike the design plan, however, the land classification plan focuses less on development type than on development timing; it is less precise about the pattern of land uses within areas designated for development, which results in a kind of silhouette of urban form. This type of plan was influenced by McHarg's Design with Nature, as noted above, and was institutionalized in the Hawaii state land use management program, which dates from 1961, Oregon's 1973 statewide land-use planning act, and Washington's growth management acts of 1990 and 1991. Under this approach:
The Hawaii land-use law divides the state into four categories: urban, rural, conservation, and agriculture; amendments to these boundaries are left to a state land-use commission. For each class of land there are state regulations prohibiting certain uses and proscribing certain development practices. Counties, as opposed to the state, control land use in the "urban district," which constitutes about five percent of the land area in Hawaii.[150] The Hawaii system is a form of broad-brush state zoning. A central organizing tool of the Oregon and Washington systems, urban growth areas, are also a form of land classification planning. They indicate where urban development may and may not take place, usually for a 10- to 20-year period. More complex versions of the urban growth area may include short- and long-range growth contours or boundaries. Urban growth areas are designated most appropriately on a regional basis; they are addressed extensively in a research note at the end of Chapter 6. The verbal policy plan. The verbal (or written) policy plan, unlike the design and classification plans, has a policy rather than a spatial orientation. Such plans feature a set of policy statements and typically do not contain a future land-use map. Policy statements written in such plans typically specify conditions under which development may occur,[151] rather than the locations that development may occur. Although used by a variety of governments, the verbal policy plan is most commonly used by regional and state governments where the geographic scope of the plan precludes detailed mapping of land uses and where development policies tend not to be parcel specific. The award-winning Calvert County, Maryland comprehensive plan (1983) provides a good example of a verbal policy plan.[152] Although the plan explicitly addresses the physical development of specific areas of the county, it does not contain a land-use map. The development management plan. The development management plan is the most detailed and intricate of the four prototypes. Such plans often contain coordinated programs of action for specific agencies, and usually for short-term periods. Because development and administrative regulations are included, as in the Sanibel, Florida Plan (1981), development management plans are more like zoning ordinances than traditional land-use plans.[153] Unlike policy plans which specify conditions under which development can take place, management plans specify when and where government actions will take place. Such plans combine policy, spatial, and time-related actions of government in a proactive way. By specifying when and where specific infrastructure investment will occur, for example, the plan provides a framework for development decision making and closely links plans with plan implementation. Kaiser and Godschalk classify the 1976 ALI Code proposal discussed above as a form of development management planning because it consciously retains an emphasis on physical development but stresses a short-term program of action, rather than a long-term, mapped goal form. Beginning in the 1970s and extending to 1990s, note Kaiser, Godschalk, and Chapin, contemporary land-use planning experienced other influences that did not affect the form of plan-making as much as the substance. Among them:
A Hybrid Approach for a Land-Use Element The model statute for a land use element below contains aspects of both the land-use design plan and the land classification plan. It calls for a land-use element that is based on a variety of studies, such as analyses of population, economic activity, natural resources, and inventories of existing land uses. A plan map is to show future land uses and, where designated in the regional comprehensive plan, urban growth areas. The future land-use allocations on the plan map must be supported by land-use projections that are either: (a) linked to population and economic forecasts made in the context of the surrounding region or (b) tied to assumptions contained in the regional comprehensive plan. The intent is to ensure that the plan is realistic and takes into account demographic and economic trends affecting the local government and the region around it. The element must state the assumptions (in terms of net density, intensity, other standards or ratios, or other spatial requirements or physical determinants) used in the land-use forecasts. It must also show lands that have development constraints, such as those subject to natural hazards (e.g., flooding, unstable soils) or that either have been designated as an area of critical state concern or nominated as such in a regional comprehensive plan (see Section 5-201 et. seq.), where such a plan and process exists. The land-use element is also to contain a description of various other alternative land-use designs that were considered and rejected in its preparation. As conceived here, the land-use element, in conjunction with the issues and opportunities element are really the keystones of the local comprehensive plan, with other required and optional elements integrated into both the vision of what the local government wants to be and the means by which to do it. For example, a local government that determines, through a visioning process, that it hopes to become a regional development center in a metropolitan area, will need to make decisions to allocate land uses of sufficient density and intensity to make that occur. It must provide supporting systems for vehicles and mass transit, provide community facilities to service the land uses and make the area attractive. It must also initiate programs so that a desired mix of housing that meshes with the type of jobs that it expects will locate there. Finally, it must undertake economic development measures (e.g., job training, tax abatement, tax increment financing, establishment of economic development agencies) that will put the community on the road to achieve that vision. 7-204 Land-Use Element (1) A land-use element shall be included in the local comprehensive plan. (2) The purposes of the land-use element are to:
(3) The land-use element shall be in both textual and map form. (4) In preparing the land-use element, the local planning agency shall undertake supporting studies. In undertaking these studies. the local planning agency may use studies conducted by others. The supporting studies shall concern factors affecting existing and future land uses that are located:
(5) These supporting studies shall include, but shall not be limited to, inventories, analyses, and projections of:
— Residential, commercial, industrial, and many public facility land uses can be projected so that the forecast results in relatively finite numbers of additional acres needed. However, as Kaiser, Godschalk, and Chapin observe in the 1995 edition of Urban Land Use Planning, space standards (such as number of acres per household or per person) are generally not relevant for open space that is intended to protect natural processes, avoid exposing development to natural hazards, or shape urban form: "The amount of open space required for those conservation purposes is primarily the result of the pattern of physical determinants (e.g., how much land is in floodplains, or wetlands) coupled with the particular standards to be applied (e.g., more land would be in a hundred year floodplain than in a fifty-year floodplain."[155] For environmentally sensitive areas, they comment, ecological principles may also suggest minimum acreage for certain wildlife and plant communities or in certain patterns of open space, such as arranging the space in corridors "so that wildlife can move within and between territories."[156] — It is important that the land-use element not only statistically projects land-use needs (especially residential, commercial, and industrial uses) that are sufficient for the recommended 20-year period, but also designates them as well on the future land-use plan map (see subparagraph (6)(c) below). Adopting a "wait-and-see" posture by not designating developable areas in excess of actual demand creates problems in the effectuation of the plan. For example, if the local government has failed to map needed land uses, then there may be difficulty in determining whether applications for zoning changes for uses that the plan recognizes will be needed are consistent in terms of location and character with what the land-use plan map shows. Further, if the land-use plan map (as well as the zoning map) fails to show adequate areas for the projected land uses, then when the local land market heats up during economic booms and increases demand for certain land use categories, land supply will not have expanded in response and land price inflation may occur. Moreover, when the plan only partially maps projected future land-uses, the owners of the properties in the designated areas may enjoy a publicly-created land monopoly with attendant higher prices; one consequence is that they may keep the land off the market to bid up the price. If the plan only designates one area for a regional shopping center and that area is clearly a property under a single ownership, then the value of that land will increase as there are no alternative sites. Full or substantial designation of projected future land uses should ensure diversity of land holdings so that land ownership monopolies do not result in undue land price increases. (6) Based on the studies undertaken pursuant to paragraphs (4) and (5) above, the land-use element shall provide for, address, and include, but need not be limited to, the following:
— The intent is that the land-use element address both developing communities and fully developed communities, such as central cities and suburbs. Consequently, the element must address "areas that may be redeveloped." Section 7-303 describes a redevelopment area plan that would provide details for such areas.
— The phrase "general locations of future land uses . . ." in subparagraph (c)1 above is important to retain. The depiction of land uses should be general in order to avoid what Professor Daniel R. Mandelker has called "the holdout problem" in zoning decisions.[157] When a future land use plan map designates specific sites for certain uses (e.g., a shopping center or apartments), it will confer on the owners of those sites a distinct monopoly-like benefit. If a developer secures a substantial zoning change where the plan precisely shows an intense land use, the local government will be hard put in the interim to decide how to treat additional applications for similar developments. The developer may keep that land off the market in the hope of significant appreciation of the property. Some developers, Mandelker points out, may be willing to wait longer than others because they have different expectations of return on their investment. Therefore, it is important that the plan map be much less specific than a zoning map in order to give the local government flexibility so that no one land owner can gain a monopoly over the development of projected land uses through holdouts. It may also be desirable to have locational policies and criteria in the plan text itself to provide guidance in such situations.
— The exact language of subparagraph (f) above will depend on which type of environmental analysis option is selected. At a minimum, a statement of alternative development patterns examined in the plan's preparation should be set forth in the plan. The first example, a description in textual and/or map form of the various other alternative future land use design schematics or concepts and assumptions that were considered" is one basic approach. The second, "an environmental evaluation," described in Chapter 12, Integrating State Environmental Policy Acts With Local Planning, is still another. Chapter 12 also offers two other alternatives of increasing technical and procedural rigor. (7) The land-use element shall set forth in the long-range program of implementation required by Section [7-211] below, those actions that may be needed to achieve the selected future land-use pattern and the goals, policies, and guidelines contained therein. Commentary: Monitoring Land Markets[158] Land supply and demand information is the missing link in many critical local development decisions made by public policymakers and development interests. Public policies regulating the amount of land available for development made without the benefit of an accurate land inventory can have disastrous effects on the price of raw land if public policy regulates growth too rigidly. In addition, the government pays more for public facilities when infrastructure is not properly sized due to uncertain knowledge about the actual supply of buildable land. At the same time, imperfect information concerning land supply and availability multiplies the risk of private development decisions. Such risk and uncertainty make development more expensive because greater risk projects require higher investor returns. Market uncertainty limits competition as fewer developers are willing to invest time and money in the process. As each decision maker adds safety factors to compensate for missing information, consumers pay more for housing and affordable housing possibilities shrink. Government planning policies, in influencing the location, timing, and amount of growth within their jurisdictions, influence a land market rather than simply propose an end-state spatial plan. Government interests in managing land markets focus on the achievement of public goals, but the public sector must also work in constructive partnership with the private sector to assure the availability of sites and facilities needed for a healthy economy. Good land management can assure public and private economies. Poor land management, in contrast, can result in unacceptable public costs involving infrastructure and environmental damage and private costs in the form of rapid residential land price inflation, which may affect the ability to purchase or rent housing when it outpaces the growth in personal income. Public policies must seek to balance market supply-and-demand dynamics. Such balancing can occur only if government monitors land markets so that it can periodically adjust its forecasts of urban space and facility needs. Unless policymakers understand market dynamics, governments can cause land supply shortages by adopting excessive development regulations, causing needless delays in reviewing development proposals, and setting overly tight restrictions (such as through urban growth areas) on the size of areas designated for urban development. When land supply is constrained, development is redirected to less-restrictive markets or land price is inflated. As a result, local housing prices tend to rise and/or development patterns are distorted. Advantages of access to accurate and timely land market information include:
While some local governments have initiated the creation of land market monitoring systems voluntarily, others have been prompted by state statute to do so. California, for example, requires a housing element in local general plans that must include "an inventory of land suitable for residential development, including vacant sites and sites having potential for redevelopment, and an analysis of the relationship of zoning and public facilities and services to these sites."[159] Oregon calls for all local governments to "inventory the supply of buildable lands within the urban growth areas" as part of a periodic review of the local comprehensive plan and conduct an analysis of whether there are sufficient residential lands to meet long term housing needs.[160] In 1997, the state of Washington amended its growth management laws to require a county-level "review and evaluation program" to "determine whether a county and its cities are achieving urban densities within urban growth areas by comparing growth and development assumptions, targets, and objectives contained in the countywide planning policies and the county and city comprehensive plans with actual growth and development that has occurred in the county and its cities."[161] The review is aimed at determining whether there is sufficient suitable land to accommodate the projected population for the county. The statute calls for an analysis of the actual density of housing that has been constructed and the actual amount of land developed for commercial and industrial uses within the urban growth area since the adoption of the comprehensive plan or the last periodic evaluation of the plan. If the evaluation demonstrates an inconsistency between what has occurred since the adoption of countywide planning policies and the county and city comprehensive plans and development regulations and what was envisioned in those policies and plans, as well as state planning goals and requirements, the county and its cities are to adopt and reasonably implement measures that are reasonably likely to increase consistency.[162] The program is to occur every five years and is to encompass land uses and activities both within and outside of urban growth areas through the annual collection of data on urban and rural land uses, development, critical areas, and capital facilities to the extent necessary to determine the quality and type of land suitable for development, both for residential and employment-based activities.[163] A Model Statute Section 7-204.1 below establishes the framework for a land market monitoring system by which land would be inventoried and evaluated as to whether it was buildable by a regional or county planning agency and municipalities (as well as other local governments). This Section is required if there are urban growth areas that have been designated in connection with Section 6-201.1. The model statute calls for a periodic review of the availability of buildable land within the municipalities' urban growth areas in order to avoid some of the problems of land supply constraint identified above. The Section describes how residential, commercial, and industrial lands are to be analyzed in order to determine whether the urban growth area should be expanded; under this Section, municipalities as well as other local governments may propose to the regional or county planning agency the amendment of the urban growth area. Alternatively, municipalities could consider other measures (such as modification of development regulations) that could be put into effect that would result in more compact development that would consume less land as the community grows. Apart from the connection to the designation of urban growth areas, the information for the monitoring system could be highly useful in formulating the land-use element itself. Note that there are several choices in creating the system: (1) a regional or county planning agency could establish the system independently or on behalf of municipalities and other local governments within its planning jurisdiction; (2) a municipality could also establish the system on its own if it were required to include an urban growth area in its local comprehensive plan; and (3) any other local government that was not required to have an urban growth area could at least establish the land market monitoring system. As a practical matter, a cooperative regional program of monitoring would probably be the soundest approach in metropolitan area, with some type of allocation of responsibilities between the regional or county planning agency and the local governments within its planning jurisdiction. This arrangement is difficult to provide for in a statute and some flexibility must be provided. The model statute below assumes that both the regional and county planning agency and local planning agency would be involved in the establishment and maintenance of the monitoring system. 7-204.1 Land Market Monitoring System [Optional, but Required if Urban Growth Areas Are Required] (1) Any [regional or county planning agency] that includes an urban growth area in its regional comprehensive plan and/or any municipality [and each local government i] that is required to employ an urban growth area in a local comprehensive plan pursuant to Section [6-201.1] above shall establish a land market monitoring system. A [regional or county planning agency] [shall or may] establish, by [implementation] agreement, a land marketing monitoring system for municipalities [and other local governments] within its planning jurisdiction and may assume the responsibilities of a local planning agency for the purposes of this Section. (2) Any [regional or county planning agency] or local government that is not required to employ an urban growth area may elect to establish a land market monitoring system pursuant to this Section and may inventory the supply of buildable lands pursuant to paragraph (4)(a) below. For the purposes of this Section, a local government may also enter into an [implementation] agreement with the [state planning agency], a [regional or county planning agency], another local government, a special district, or a private vendor to establish a land market monitoring system.[165] (3) The purposes of the land market monitoring system are to:
(4) Using a geographic information system as part of the periodic review required by Section [7-406] below, the local planning agency and/or the [regional or county planning agency] on at least a [5]-year basis:[166]
— Note that there can be a fair degree of debate over whether land is "underutilized" and "likely to be redeveloped." There may be many reasons that land is underutilized (e.g., preferences of the owner, the need for environmental remediation, the state of the local real estate market, hostility of adjoining property owners to proposed land-use change, etc.). Consequently, communities that decide to include such land in the inventory of buildable land should be conservative in their assessment regarding whether such land should be considered a significant component of supply.
(5) If, after reviewing the inventories, determinations, and analyses pursuant to paragraph (4) above, the legislative body of the municipality [or other local government] determines that the urban growth area does not contain sufficient buildable lands to accommodate residential, commercial, and industrial needs for the next [20] years, then the legislative body shall take one of the following actions:
(6) Using the analysis conducted under subparagraph (4)(e) above, the local planning agency and/or [regional or county planning agency] shall determine the overall average density and the overall mix of housing types at which residential development must occur in order to meet housing needs, and the intensities and mixes of types or categories at which commercial and industrial development must occur in order to meet commercial and industrial needs, over the next [20] years. If that overall density or intensity is greater than the actual density or intensity as determined under subparagraph (4)(d), or if those mixes are different than the actual mixes as determined under subparagraph (4)(d) above, then the legislative body of the [municipality][or other local government] shall adopt measures that will demonstrably increase the likelihood that residential development will occur at densities and at the mix of types sufficient to accommodate housing needs, and that commercial and industrial development will occur at intensities and at the mix of types and categories sufficient to accommodate commercial and industrial needs, for the next [20] years. — Paragraph (5) involves a determination of whether or not the urban growth area contains sufficient buildable land to meet the projected residential, commercial, and industrial needs (as well as lands for supporting uses) for the next 20 years. Paragraph (6) examines whether the projected density or intensity of development is greater than the actual density or intensity, or whether the projected mix of uses is different than the actual mix of uses. The local government has a choice of whether or not to propose the urban growth area's expansion or to take other measures that will have the effect of increasing the capacity of buildable land. (7) Measures or actions under paragraphs (5) and (6) may include, but are not limited to:
Commentary: Transportation Element[170] The Standard City Planning Enabling Act of 1928 addressed transportation issues in two ways. First, it authorized the municipal planning commission to make a "master plan," with "accompanying maps, plats, charts and descriptive matter" that showed "the commission's recommendations for the development of said territory, including, among other things, the general location, character, and extent of streets, viaducts, subways, bridges, waterways, water fronts, boulevards, parkways . . . aviation fields, and other public ways, . . . public utilities and terminals, whether publicly or privately owned or operated for . . .transportation . . .; also the removal, relocation, widening, narrowing, vacating, or abandonment, change of use or extension of any of the foregoing ways. . . ."[171] Once the commission had adopted the plan then "no street . . . or other public way . . . or public utility [which would include transportation utilities] could be constructed or authorized without the commission's support (although an override by the city council was possible with a two-thirds vote). Second, as noted above, adoption of a "street plan" by the planning commission activated the commission's power to review subdivisions; thereafter, no subdivision could be filed or recorded unless the planning commission approved it.[172] The subdivision regulations adopted by the commission could provide for "the proper relationship of streets in relation to other existing or planned streets and to the master plan."[173] While the description of the master plan in the SCPEA seemed to call for a broader consideration of transportation modes, as a practical matter, the street or thoroughfare plan — sometimes called the circulation element and designed to accommodate the movement of people and goods within a local government — still serves as a basis for many local comprehensive plans. Often, these thoroughfare plans assumed that car and projected new lanes or roadways would adequately serve and reinforce the land use and other elements of the local comprehensive plan over 20- to 30-year periods. But this assumption often proved dubious. Roadways typically fill to capacity soon after reconstruction, thereby creating the need for even more roadways.[174] The failure of this single mode of transportation to accommodate needs often resulted not only in traffic congestion but in compromises to other proposals in the local comprehensive plan, such as policies to preserve prime farmland, encourage efficient overall land-use patterns, and maintain economically viable central business districts. Complicating this was a failure of interim reviews that could have led to corrections to the failing transportation elements. Transportation planning doctrine of the 1970s introduced shorter-range approaches. One of them was transportation systems management in which governmental units attempted to increase the efficiency, safety capacity, or level of service of a transportation facility without increasing its size (e.g., traffic signal installation and improvements, and traffic control devices such as installing medians and removing parking). The 1980s brought the concept of transportation demand management (TDM) as an alternate response to growth management and traffic congestion problems. TDM emphasized actions designed to change travel behavior in order to improve the performance of transportation facilities without expanding road capacity. Examples include non-capital approaches like ride-sharing, work-hour changes, tolls, congestion or peak-hour pricing, and vanpool programs.[175] As noted in Chapter 6, Regional Planning, a major shift for transportation planning was the passage, in 1991, of the Federal Intermodal Surface Transportation Efficiency Act (ISTEA), followed by the enactment in 1998 of the Federal Transportation Equity Act for the 21st Century (TEA-21). Aimed at states and metropolitan area transportation planning, this legislation makes a connection between transportation and air pollution, emphasizing increased use of mass transit, improving the performance of the existing road network, mitigating congestion, encouraging context -sensitive highway design, and encouraging alternative forms of transportation, including bicycling and walking. Approaches to guiding local transportation planning. There are currently two principal approaches that states use to guide local transportation planning: by law; or by rule. California and Rhode Island provide examples of simple (and traditional) requirements for a circulation element of a local comprehensive plan, specified in a general law without providing details for such plan elements in administrative rules.[176] Other states (e.g., Florida, Georgia, Oregon, and Washington) direct a state department or commission to prepare and adopt local planning requirements in the form of administrative rules. Organization of transportation content vis-a-vis the local comprehensive plan. State administrative rules for local transportation plans vary with respect to how transportation planning is integrated in the local comprehensive plan. Specifically, there are four alternatives, in order of highest complexity and priority placed on transportation. First, state legislators can require a transportation system plan with its own elements, as does Oregon (Ore. Admin. Rules 660-12-015), separate from but integrated with the comprehensive land-use plan.[177] Second, local transportation planning can require multiple transportation elements of a comprehensive plan. For example, Florida's administrative rules require all local plans to include elements for traffic circulation (Fla. Admin. Code 9J-5.007) and concurrency management for transportation and other facilities and services (Fla. Admin. Code 9J-5.0055). Comprehensive plan in Florida for local governments with populations of 50,000 or more must have plan elements for mass transit (Fla. Admin. Code 9J-5.009) and for ports, aviation, and related facilities (Fla. Admin. Code 9J-5.009). Third, local transportation planning can be specified as a single "circulation" or transportation element of a comprehensive plan; California (noted above), Florida (for urbanized areas of metropolitan planning organizations, see Fla. Admin. Code 9J-5.019), Rhode Island (noted above), and Washington (Wa. Admin.Code 365-195-300) all practice this approach. Fourth, local transportation planning can be required as a component to the community facilities element of the comprehensive plan, as does Georgia (Rules of the Ga. Department of Community Affairs, Ch.110-3-2.04). Decisions about how the transportation plan fits organizationally within the local comprehensive plan reflect the amount of priority that legislators place on that planning function and, hence, the amount of effort and resources put into that work. The first three alternatives described are suitable in terms of the priority they give to transportation; the choice probably depends on political acceptability. Georgia's approach (the fourth alternative) may offer a model for conservative states without traditions of planning, but it does not confer transportation planning with the status it deserves. A Model Transportation Element In the model statute that follows, transportation is given an "element" status and is described in the detail that is characteristic of some state administrative rules. Adoption of planning standards or guidelines via administrative rule may be desirable (in terms of flexibility), but one cannot assume in drafting model statutes that an administrative agency will also be created that will have the authority to adopt local planning standards through rulemaking, based on a skeleton outline of substantive content. With the intent of ensuring some degree of multi-modal planning at the local level that is reflective of ISTEA and TEA-21, the model legislation for the transportation element calls for the inclusion of several "components" dealing with: (a) traffic circulation; (b) mass transit; (c) ports, aviation, and railways; (d) recreational and pedestrian traffic (e.g., bicycling and walking); and (e) off-street parking. These components would not be necessary for every local government, as commentary below notes. It is also important to note that the model language looks at transportation as a service supporting people and their activities, and not an end in itself. The model statute, in Section 7-205(2), also states that the element is to be "coordinated with state and regional transportation plans, including those required by federal law." Transportation performance measures are used in the transportation plan element (see paragraph (2)(d)). Establishing performance measures for transportation consistent with those required by the element must recognize:
Of the various types of performance measures, two can clearly and easily be made operational for systemwide goals. One is to minimize vehicle miles traveled (VMT) or VMT per capita within the region or local government. VMT was selected in the Federal Clean Air Act as the principal travel measure for air-quality planning in high ozone and carbon monoxide. VMT is directly influenced by land-use configurations and transportation systems design and modal mix. If development is compact and uses are mixed, VMT will be low. If the road network provides direct connections, VMT will be low. If transit and ridesharing are well used, VMT will be low. Another worthy goal is to minimize vehicle hours traveled (VHT) or VHT per capita within the region or local government. VHT has one big advantage over VMT. It accounts for the degree of congestion; all else being equal, the more congested roads are, the more hours of travel will be logged. Mobility — as it has been defined above — is embodied in VHT but not VMT.[178] The model statute also provides an express air quality linkage with local planning.[179] Under its provisions, when the planning area for the local government is within a national ambient air quality standards non-attainment area, the element must also address the relationship of proposed corrective measures to air quality improvement for ozone, carbon monoxide and/or particulate matter. The model also describes a number of prototypical actions that may be incorporated into the long-range program of implementation. 7-205 Transportation Element (1) A transportation element shall be included in the local comprehensive plan. (2) The purposes of the transportation element are to provide and encourage a safe, convenient, efficient, and economical multimodal transportation system that is adequate to serve local transportation needs, that serves, supports, and reinforces the future land uses as shown on future land-use plan map or map series, and that is coordinated with state and regional transportation plans, including those required by federal law. In order to achieve these purposes, the transportation element shall:
(3) The transportation element shall be in both map and textual form. (4) To the maximum extent possible, the transportation element shall attempt to integrate transportation modes in order to offer people choice in mobility. Therefore, the transportation element shall include several components, each of which shall enable the local government to consider the full range of issues posed by the construction, improvement, maintenance, and operation of present and prospective transportation facilities and their relationship to each other. Each component identified in paragraph (5) below shall contain the following type of information:
— Subparagraph (e) is intended to ensure that the local government coordinates the transportation element with any applicable state or regional transportation plan and related plans. (5) The transportation element shall, at a minimum, include the following components identified in subparagraphs (a) and (d) and, where applicable for the local government based on characteristics such as population growth, extent of urbanization, and transportation forecasts, shall also include the components identified in subparagraphs (b), (c), and (e), provided however that any local government that is located in a Metropolitan Area as defined by the U.S. Bureau of the Census must include (b) in its transportation element: — The transportation element needs to be flexibly written to account for the diversity of local government settings in a state. Thus, each state will need to modify paragraph (5) to establish criteria for activation of the requirement for the additional plan components. For example, a small, inland, rural community of 2,000 that lacked rail access would obviously not need to address port facilities and rail terminals as part of its element. (a) a traffic circulation component that identifies, provides for, or contains:
(6) If the planning area for the local government is within a national ambient air quality standards nonattainment area, compliance with the Federal Clean Air Act (Section 4201 et. seq. of Title 42, United States Code) is required. The following information may therefore be included in the transportation element as applicable to locally generated mobile sources of air pollutants:
(7) For each component addressed in the transportation element, an evaluation of financial considerations shall be included that contains:
(8) The transportation element shall contain actions to be incorporated into the long-range program of implementation as required by Section [7-211] below. These actions may include, but shall not be limited to, proposals for:
Commentary: Community Facilities ElementThe term "community facilities" includes the physical manifestations — buildings, land, interests in land (e.g., easements), equipment, and whole systems of activities — of governmental services on behalf of the public. It may include facilities that are operated by public agencies as well as those that are owned and operated by private (for-profit or nonprofit) enterprise for the benefit of the community.[183] Some have a direct impact on where development will occur and at what scale; water and sewer lines are good examples of this. Other community facilities may address immediate consequences of development; a stormwater management system, for example, deals with the impact of changes in the runoff characteristics of land as a consequence of development. Still other facilities are necessary for the public health, safety and welfare, but are more supportive in nature. Examples in this category would include police and fire facilities, general governmental buildings, parks, and elementary and secondary schools. A final group includes those facilities that contribute to the cultural life or physical and mental health and personal growth of a local government's residents (e.g., hospitals, clinics, libraries, and arts centers). Most state planning statutes address in some manner the provision of community facilities (see the Note on comprehensive planning requirements in state statutes at the end of this Chapter). The model that follows draws on statutes and administrative rules from Florida, Georgia, Kentucky, Oregon, Rhode Island, Washington, and Vermont.[184] It describes which community facilities are to be included in the element. It asks that the local government inventory and assess their condition and adequacy, and propose a range of facilities that will support the development pattern contemplated in the land-use element, including those that it might otherwise deem desirable (e.g., museums and botanical gardens) and that would come under its regulatory authority (e.g., a privately-operated gas distribution company). Under this model, the local government would adopt level-of-service requirements and locational guidelines to help in responding to growth and change in the community and to aid in siting facilities. Some community facilities may be operated by public agencies other than the local government. Such agencies may serve areas that are not coterminous with the local government's boundaries. Independent school districts, library districts, and water utilities are good examples of this. Because such arrangements differ widely, even within the same state, the model statute does not address all possible variations. In some large communities, these agencies may have their own internal planning capabilities. In others, the local planning agency will need to assist or coordinate with the outside agency or even directly serve as its planner to meet the requirements of the model. As noted, certain community facilities, like private hospitals, universities, colleges, state agency offices, and privately operated public utilities may have an impact on the local government, even though they are not operated by a public agency or by the local government itself. Paragraph (7) provides an optional means by which the interests of such institutions can be taken into account by the local government while the community facilities element is being prepared or after the element has been initially adopted as a plan amendment. The advantage of such a process is that it enables the local government to begin discussion with the private operator or owner or state agency before facility expansions or new capital projects are actually undertaken. 7-206 Community Facilities Element (1) A community facilities element shall be included in the local comprehensive plan. (2) The purposes of the community facilities element are to:
(3) For the purposes of this Section, community facilities shall include, but shall not be limited, to the following publicly operated facilities or public utilities within the jurisdiction of the local government, and may also include those community facilities described in paragraph (7) below:
— Many states have separate legislation that will address local solid waste planning as well as permitting for solid waste facilities that will be supervised by the state. In such cases, this language should be adapted to integrate the requirements of those statutes.
(4) The community facilities element shall contain the following:
(5) For each category of community facility in paragraph (3) above, the community facilities element shall include an evaluation of financial considerations that contains:
(6) The community facilities element shall contain actions to be incorporated into the long-range program of implementation required by Section [7-211] below. These actions shall cover a period of [20] years. (7) To ensure compatibility with the local comprehensive plan, a local government may allow any state agency or private owner or operator of a community facility or facilities that are located or proposed to be located within the jurisdiction of the local government to propose, pursuant to rules adopted by the local planning agency, such facilities for inclusion in the community facilities element. In promulgating rules for this purpose, the local planning agency may require the state agency or private owner or operator to: (a) complete an inventory and general assessment of each existing community facility as described in subparagraph (4)(a) above; (b) provide a statement of levels of service for the facility as described in subparagraph (4)(b) above; and (c) complete a description of the existing community facility or proposed capital improvement project as described in subparagraph (4)(c) above. Commentary: Telecommunications[186] Local governments have traditionally dealt with the impact of telecommunications facilities on land use through zoning and with the terms and conditions under which telecommunications services are provided through the granting and monitoring of franchises for such services as cable television. When the federal government took the lead on telecommunications regulation through interstate commerce with the Communications Act of 1934, it left the placement of the accompanying infrastructure, such as utility poles, to local and state discretion.[187] Even as the infrastructure needs of various forms of telecommunications have changed, local entities have retained that control. Historically, most communities have supported monopolization of telecommunications services by companies in order to avoid the duplication of infrastructure that would be necessary to accommodate competing companies, each of which would require its own facilities, and to promote the economic efficiencies that may be achieved by economies of scale. Local governments have addressed telecommunications infrastructure by focusing on aesthetics and safety. In the evolution of community controls, the multi-tiered utility poles and the networks of wires built in the 1930s were soon deemed unsightly, and communities moved to regulate their placement, later requiring newer developments to install utilities underground and thus out of sight. By the 1950s, the changes in telecommunications technology that now required the construction of major towers complicated the issue of infrastructure placement since freestanding towers, unlike most utility poles, were not located in rights-of-way. Ultimately, communities amended existing zoning regulations to address the concerns caused by the new infrastructure. Major structures like towers and poles were not the only issues. With the increasing popularity of television, roof-top antennas and, later, satellite dishes had to be addressed. The proliferation of antennas and then dishes forced communities to put into place restrictions on their height and placement or sometimes prohibit their use entirely. Homeowner associations sought to restrict these facilities in individual developments through association bylaws and deed restrictions. For many years, it was possible to build transmission towers in relatively out-of-the-way locations, minimizing the conflict between them and residential uses. Unfortunately, as communities expanded, neighborhoods got built close to towers. The resulting conflict often meant new zoning restrictions, changing existing towers from a permitted use to a nonconforming use. Consequently, proposals for new towers had to go through a special use permit process.[188] Advances in telecommunications technology in the last few decades have intensified these conflicts because some of the new services offered, like personal pagers and cellular phones, need numerous towers and relay stations to deliver services effectively. This need, along with the growth in firms generated by the provisions of the federal Telecommunications Act of 1996 that promote competition,[189] has put tremendous pressure on planners to come up with solutions that respond to community concerns while addressing these technical requirements, particularly concerning tower siting. The competition provisions of that act mandate that, if a community allows one company to build a tower, it cannot force that company to share its infrastructure with another competitor. At the same time, if every company builds its own infrastructure in a community, a local government could easily be overwhelmed by towers, dishes, and antennas. Local officials and planners grapple with architectural, aesthetic, and cultural community character issues while trying to promote efficient, reliable, and cost-effective services for citizens and businesses, and to realize the economic development opportunities evident in the growth of these new businesses. The key to prudent control over the placement of telecommunications infrastructure, while playing a role in fostering competition and effective service, is good planning. Under the Telecommunications Act, local governments have been asked to share in the responsibility of enhancing competition within the industry. The Act also reaffirms the right of local government to control siting, construction, and modification of telecommunications facilities, to manage public rights-of-way, and to receive fair and reasonable compensation for the use of those public rights-of-way. The door seems open to opportunities for local governments to work with the telecommunications industry to secure agreements that are advantageous to citizens and businesses, that still comply with the provisions of the 1996 Act, and that promote growth and competition in the telecommunications market. To that end, a good telecommunications system in a community might be seen as an economic development tool, giving the local government a distinct competitive advantage within a region or nationally.[190] New businesses could, for example, conceivably look to the quality of reception for cellular telephones or the adequacy of telephone lines for computer communications, thus allowing telecommuting. Further, a local government can now provide some of its services to the public over a computer network, such as a system for tracking the status of applications for development permits.[191] In many communities in the U.S. there are now computer networks that allow residents to exchange information, ideas, and services. Examples include the Blacksburg, Virginia, Electronic Village, the Cambridge, Massachusetts, Civic Network, and the Seattle, Washington, Community Network.[192] No existing state enabling statutes expressly authorize the preparation of local telecommunications plans or plan elements. However a number of communities in the U.S. have developed plans, policies, and telecommunications-specific ordinances. For example, Sunnyvale, California, has adopted a policy document that addresses the city's role as a regulator of telecommunications, as a service provider that uses telecommunications to disseminate information to the public, and as a facilitator of telecommunications technology.[193] Other communities have adopted specialized ordinances that streamline the permitting process for telecommunications facilities and/or establish performance standards for such facilities to make the permitting process more flexible.[194] The following Section authorizes a telecommunications component in the community facilities element of the local comprehensive plan. Acknowledging the economic development potential of telecommunications, the model statutory language addresses the local government's external role in regulating telecommunications facilities as well as its internal role of providing a conduit of information about the local government to its residents. The model component also coordinates the local government's initiatives with those of the state, as articulated in the state telecommunications and information technology plan (see Section 4-206.1), where such a plan has been prepared. With respect to the local government's regulatory role, the component is to show existing telecommunications facilities, public rights-of-way, and public structures that may be used as locations for new telecommunications facilities, and other general areas within the local government's jurisdiction that represent preferred locations for such facilities while protecting community character. It is also to propose changes to local ordinances, regulations, and procedures affecting telecommunications in order to enhance investment in infrastructure, advance technological advancement, and provide universal service. | My APA
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