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7-405 Amendment of Local Comprehensive Plans (1) The legislative body of the local government may amend the local comprehensive plan from time to time in the manner provided for in Sections [7-401] to [7-404] above , but not more than [once] during any calendar year, except:
Commentary: Periodic Review and Revisions of the Local Comprehensive Plan and Land Development RegulationsPlans and land development regulations should not be static documents and should be revisited on a periodic basis. There are good reasons for this. A community's values may change, in part as a result of changed issues facing it. New land uses and forms of development may arise that need to be taken into account. The supply and demand for developable land may change substantially due to significant economic or social changes. Old development regulations may, for a variety of reasons, prove unworkable or ineffective in addressing the problems for which they were originally enacted. For example, the development standards in subdivision regulations may be producing streets that are too wide and too costly to maintain (as well as to construct). The local government may also find that, over time, the patchwork amendment of the plan and regulations has yielded a system that is hard to understand for the average citizen, much less the sophisticated developer or home builder. The parts don't fit together very well and the land development process becomes creaky, maze-like, and unpredictable. Finally, the federal and state case law affecting the comprehensive plan and land development regulations may change (e.g., the case law surrounding the constitutionality of development impact fees and other exactions)[339] as well as federal and state statutes (e.g., federal and state statutes on group homes, family definition, and discrimination against the disabled).[340] The need to periodically assess comprehensive plans and land development regulations and their operation has been recognized in the planning and popular urban affairs literature.[341] A 1998 account of an effort to rewrite the Minneapolis zoning code characterized the difficulty with the existing ordinance:
Reports by the National Commission on Urban Problems (1968), the President's Commission on Housing (1982), and the federal Advisory Commission on Regulatory Barriers (1991) all contained recommendations that local governments should regularly take a close look at the regulatory systems (see commentary at the beginning of this Chapter). As noted above, the Advisory Commission called for states to institute "barrier removal" plans that would provide a comprehensive assessment of both state and local regulations and administrative procedures with a special focus on their impact on housing affordability. New Jersey law[343] requires a "general reexamination" of the plan and regulations and shifts the presumption of constitutionality against local land development regulations if the local government does not review the "master plan" (as it is termed in New Jersey) every six years.[344] Section 7-406 below, based partially on the New Jersey statute, proposes that local governments conduct a systematic review of their local comprehensive plan and land development regulations at least every five years, including a revision of the comprehensive plan at least every ten years, but more often at the discretion of the local government. For example, it may be preferable for the local government to conduct a review whenever significant changes in the land market indicate a need for a review. It proposes that the legislative body assign this responsibility to the local planning agency, the local planning commission, or an advisory task force that would develop a written report with recommendations. The reexamination would look not only at the language of the comprehensive plan and land development regulations but also at the way they were being administered. The Section provides examples of topics to be considered in the reexamination. Under the model, it would be necessary only for the review to be completed and the written report to be accepted and/or adopted by the legislative body.[345] If no reexamination report or revised plan is adopted as required, the state can withhold the local government's funding under certain specified programs until a written report is made. 7-406 Periodic Review and Revisions of Local Comprehensive Plans and Land Development Regulations (1) The legislative body of the local government shall review the local comprehensive plan and land development regulations at least once every [5] years and shall adopt such parts or other amendments to the plan and regulations in accordance with the provisions of Sections [7-405] and [8-103], as the legislative body deems necessary to update the plan and regulations. The legislative body shall revise, or cause to be revised, and adopt a new local comprehensive plan at least once every [10] years. [or] — The following two paragraphs are intended to provide an inducement for maintaining an up-to-date local comprehensive plan and land development regulations and for periodically reevaluating them in-between revisions. (1) The legislative body of the local government shall, at least once every [5] years[346], provide for a general reexamination of the local comprehensive plan and land development regulations to be conducted by the local planning commission, if one exists, the local planning agency, or an advisory task force appointed for that purpose. It shall prepare, or cause to be prepared, and adopt a revision of the local comprehensive plan at least once every [10] years in lieu of a reexamination report upon the comprehensive plan.
(2) If a local government fails to revise and adopt its comprehensive plan in more than [10] years and/or fails to produce a reexamination report that has been adopted by the legislative body pursuant to paragraph (1) above, the governor may declare the local government ineligible to receive funds under or more of the following grant programs: [list grant programs and statutory citations].
Implementation; Agreements with Other Government and Nonprofit OrganizationsCommentary: Corridor Maps[348] What is a Corridor Map? Section 7-501 authorizes a "corridor map," which is different from the "official map" provided for by earlier model legislation. However, because the corridor map is analogous in some respects to the official map, some description and history of the official map are helpful in understanding the purposes to be served by the corridor map. The official map allows a local government to "reserve" designated land areas for later public improvements. Once a local government adopts an official map, the local government has the authority to prohibit development, subject to constitutional limitations, on the designated land areas, protecting the mapped area from development that would interfere with the future public improvement and, in most cases, increase the cost of the land. Based on the local government's comprehensive plan and its plan for thoroughfares, the local government produces a map of land indicated for future public use. The effect of such an indication is that the public is placed on notice that the local government or some other level of government intends in the future to "take" or formally acquire title to the land under eminent domain in order to provide the indicated public facility. The most common approach is for the local government to forbid, either outright or absent special circumstances, the construction of permanent structures on land indicated on the official map as future public land. At the time of condemnation, the government will not have to pay the added value of land with buildings or structures on it nor incur the substantial cost of removing the structures that are in the path of the project. Also, if permanent buildings and other structures are not allowed to be built in the way of public facilities, there will be fewer persons and businesses displaced by such projects. The Legislative Guidebook recommends the use of corridor maps for transportation facilities only. The need for transportation corridors to be protected comes from their linear nature: an obstruction in the intended corridor will necessitate either increased expense or a detour of the corridor. Similar linear public uses, such as drainage facilities, may have a similarly strong need for protection. Although official map legislation has been used to protect parks and open space,[349] and other non-linear public facilities,[350] as well as thoroughfares, the necessity of protecting such other, non-linear public uses is not typically as great nor as legally defensible; obstruction on one parcel of land can often be addressed by condemning another nearby parcel instead. Because the need to condemn is much less compelling in such cases, the probability of a successful legal challenge to the official map becomes greater. Consequently, the model statute presented in Section 7-501 below is limited to transportation facilities. Many official map statutes provide that subdivision plats, upon approval, are incorporated into the official map.[351] The primary reason for such a provision is to coordinate the thoroughfares of the existing official map with the streets of subdivisions (which are generally minor streets). However, it is now recognized that the subdivision of land can interfere with land reservation through corridor maps, so land subdivision is treated as "development" under the model law that requires permission from the local government. The Takings Problem But there is a down side to the official map. As described above, the local comprehensive plan and the official map can provide predictability by identifying in advance the desired location of public facilities. However, the price of that predictability under an official mapping designation is that the landowner is unable to build upon land that has been so designated unless the official map legislation provides some form of relief. This has usually been provided through a variance when hardship can be demonstrated. A landowner banned from constructing permanent buildings or structures on his or her property for an indefinite period of time could argue that the government has deprived him or her of the reasonable use of his or her land. This is the scenario that the U.S. Supreme Court faced in Lucas v. South Carolina Coastal Council.[352] There, a South Carolina statute provided that no permanent structure could be built within a certain distance of the ocean shoreline. A landowner purchased a seaside parcel of land before the enactment of the statute with the intent to build a house similar to the existing houses in the neighborhood but was forbidden under the statute to construct any permanent structure on his parcel because of its proximity to the shoreline. The Supreme Court held that "where regulation denies all economically beneficial or productive use of land,"[353] there is a taking per se, entitling the land owner to compensation under the Fifth and Fourteenth Amendments to the U.S. Constitution. In the Court's words, a "total deprivation of beneficial use is, from the landowner's point of view, the equivalent of a physical appropriation"[354] by the government. The U.S. Supreme Court in its Lucas decision determined that a permanent or indefinite deprivation of all reasonable usage of the land by government regulation constitutes a regulatory taking, since the government did not take title or possession of the property as in the typical physical takings case. Because all government regulation of the use of property impacts the value of that property to some degree, the Supreme Court has time and again been called upon to review laws that have limited or restricted the usage of the land and has generally upheld those laws as long as some reasonable use was feasible. Zoning, with its height, density, and use restrictions, limits the uses of a parcel of land but has been upheld as long as it did not make the land effectively useless.[355] Historic preservation laws, which forbid a landowner to change the outward appearance of his or her building, have also been upheld when the landowner could continue to make beneficial use of the interior of the building.[356] In state cases on official maps, the courts have repeatedly ruled that merely indicating on an official map the intention to eventually take certain property for public use does not by itself effect a taking.[357] On the other hand, various courts have found that the prohibition of developing a parcel, or the down-zoning of a parcel of land, done in order to depress the value of the land in anticipation of a taking of the land under eminent domain, is itself a taking, entitling the land owner to the pre-regulation value of the land, which is the value when the owner could reasonably develop the land.[358] The courts have also considered in several cases whether an official map is a taking. One New Jersey Supreme Court case found unconstitutional a state statute that required subdividers to reserve land shown on an official map for park and playground use for one year. The court held that the reservation amounted to a unilateral option to reserve the land and was constitutional only if the municipality compensated the landowner.[359] The State of New Jersey has now codified the compensation requirement for official map reservations in its subdivision control legislation.[360] Courts may be less likely to find a taking under a state corridor preservation law when the state agency is required to purchase reserved property if development is denied. Another New Jersey case, Kingston E. Realty Co. v. State,[361] involved an official map statute that required the issuance of a permit if the state highway agency did not take any action to acquire the property within 120 days of the denial of a development permit by a municipality. The statute was upheld, and the court distinguished the case from Lomarch on the grounds that restriction was for a shorter period of time and was not a blanket reservation. The Florida Supreme Court in Joint Ventures, Inc. v. Department of Transportation[362] held that the state's highway corridor mapping law, on its face, violated substantive due process because its very purpose was to prevent the development of land that would increase the cost of planned acquisition. In that case, the DOT's recordation of the map of reservation precluded the issuance of development permits. The court found that "freezing" property in this fashion was no different than government deliberately attempting to depress land values in anticipation of eminent domain proceedings — in effect, placing a "heavy governmental thumb on the scales to ensure that in the forthcoming dispute between it and one or more of its citizens, the scales will tip in its own favor."[363] In a later decision, Palm Beach County v. Wright,[364] the Florida Supreme Court held that an unrecorded county thoroughfare map adopted as part of the mandatory county plan was not a taking on its face, even though the effect of the map was to prohibit all development in the corridor that would impede future highway construction. The county noted that the thoroughfare map was a long-range planning tool tied to its comprehensive plan and did not designate the exact routes of future highways. The county also contended the map provided enough flexibility so that it could not be determined whether a taking had occurred until a developer submitted an application for development. At that time the county would be able to work with the developer to mitigate the effect of the map such as density transfers and development clustering to avoid the highway right-of-way. The county also contended that the map would have the effect of increasing the value of properties within the corridor. The court's reasons for upholding the thoroughfare map in this case while invalidating the corridor mapping law on its face in the Joint Ventures case are instructive for designing corridor map legislation. Specifically, the court noted that the thoroughfare map limits development only to the extent necessary to ensure compatibility with future land use, is not recorded as were the maps of reservation, may be amended twice a year, and does not precisely indicate road locations.[365] When a landowner/developer submits a development approval application, the county, as the permitting authority, has the flexibility to ameliorate hardships caused by the plan. It can work with the landowner/developer to "(1) assure that the routes through the land will maximize development potential; (2) offer development opportunities for clustering the increasing densities at key nodes and parcels off the corridors; (3) grant alternative and more valuable uses; (4) avoid loss of value that results from taking by using development rights transfer and credit for impact fees; and, if necessary, (5) alter or change the road pattern."[366] Two U.S. Supreme Court decisions are important in the discussion of official maps. Both address the use of exactions, such as a requirement that a developer dedicate land located in a mapped corridor to a state or local government for future use as a roadway. In Nollan v. California Coastal Commission[367], the owners of a seaside house applied for a permit to build a larger house, which the state Coastal Commission would not approve unless they dedicated a portion of their property directly along the beach as a easement of the public to cross their property. The Court invalidated the permit requirement, applying a nexus test which limits dedications to land necessary to meet needs created by the new development; that is, where there is a "nexus" between the dedication extracted from the developer and the demand for public services created by the development. Land dedications for public facilities are invalid when a development does not create the need for the dedication. The Supreme Court clarified the meaning of the Nollan case for exactions in its Dolan decision, decided a few years later. In Dolan v. City of Tigard[368], the city adopted a comprehensive plan noting that flooding had occurred along a creek. The plan suggested a number of improvements to the creek basin and recommended that the floodplain be kept free of structures and preserved as greenways to minimize flood damage. A plan for the downtown area proposed a pedestrian/bicycle pathway intended to encourage alternatives to automobile transportation for short trips in the business district. The Dolans, owners of a store in the city's central business district, which was near the creek, planned to double the size of their store, pave a 39-space parking lot, and build an additional structure on the property for a complementary business. To implement its plans and land development code, the city conditioned the Dolans' building permit with a requirement that they dedicate roughly ten percent of their property to the city. The dedication included land within the floodplain for the improvement of a storm drainage system along the creek and a 15-foot adjacent strip for a pedestrian-bicycle pathway. To justify the dedication, the city found that the pathway would offset traffic demand and relieve congestion on nearby streets, and that the floodplain dedication mitigated the increase in stormwater runoff from the Dolan property. The owners challenged the dedication requirement in court, and the case proceeded ultimately to the U.S. Supreme Court. The Court held a "nexus" existed, as required by the Nollan case, between a legitimate government purpose and the permit condition on the Dolan property. But the Court found that a taking had occurred because "the degree of the exactions demanded by the city's permit conditions [did not] bear the required relationship to the projected impact of [plaintiffs'] proposed development."[369] The Court reviewed the tests that state courts had adopted to decide this question and rejected all of them. It held the "reasonable relationship" test adopted by a majority of state courts was closest to "the federal constitutional norm," but rejected it because it is "confusingly similar"[370] to the minimal level of scrutiny courts require under the equal protection clause. Instead, the Court adopted a "rough proportionality" test to determine whether a taking has occurred under the federal constitution. The Court explained that "[n]o precise mathematical calculation is required, but the city must make some sort of individualized determination that the required dedication is related both in nature and extent to the impact of the proposed development."[371] In a footnote, the Court added that the city had made an "adjudicative decision" to condition plaintiffs' building permit, and that "in this situation" the burden of proof rests with the city. An adjudicative decision, also known a quasi-judicial decision, requires the decision maker, as the basis for its decision, to determine the facts of a matter through a hearing, to make findings of fact, and to exercise discretion of a judicial nature in weighing the evidence and arriving at its decision. Dolan shifted the burden of proof because the exaction was imposed through adjudication as a condition on the developer. The test the Court adopted for exactions in Dolan requires local governments to justify their exactions more carefully than the test adopted by a majority of state courts, and property owners can rely on the federal test by suing under the federal Constitution in state courts. However, the Court in the Dolan case appears to rely on the adjudicative nature of the city's dedication requirement, while an exaction in an official map program is more in the nature of legislative action, regulating the actions of many, than an adjudication of the rights and duties of one. Nevertheless, because "rough proportionality" may be found by the Court to be the applicable test even in non-adjudicative instances, it would be wise for a local government to support an exaction in an official map area with careful planning preceding the designation of a transportation corridor and with studies or other documentation that demonstrate that the exaction is in fact related to transportation needs. Approaches to the Takings Problem One of the earliest comprehensive planning laws, and the model for state planning enabling acts for decades, is the Standard City Planning Enabling Act (SCPEA).[372] The SCPEA declared that the official map is only a reservation of the land indicated on the map as for public use, and not the establishment of a right-of-way, nor the taking of land therefor. The SCPEA also required the payment of compensation at the time the map was adopted, but not for improvements added later. The logic behind this approach was that, having received notice that the land was intended for eventual public use, the owner should not be entitled to compensation for building in the intended right-of-way. This approach to the takings problem is not workable, however, because, in failing to provide compensation for the later improvements, it opens the local government to takings claims based on inadequate compensation. Another approach to official maps was proposed in 1935 by Alfred Bettman in Model Laws For Planning Cities, Counties, and States.[373] The proposed Municipal Mapped Streets Act, and the parallel County and Regional Mapped Roads Act, required that the planning commission have adopted a master plan including a major street plan before the municipal or county council could adopt an official map. Before adopting or amending any official map, the council has to hold a public hearing, for which all owners of land affected by the proposed map must receive notice by mail. Once the official map is adopted, the city or county may provide by ordinance that no permit be issued for any building or structure that will lie in whole or in part in a street indicated on the map. To relieve potential hardship under such a moratorium, the ordinance shall provide for the grant, by the board of zoning appeals or another designated body, of permits to build on mapped streets. The board must hold a hearing after proper notice before making a decision, and can place area, height, and other restrictions and conditions on the issuance of such a permit. The board cannot issue a permit to build in a mapped street unless it finds that the property of which the mapped street is a part "will not yield a reasonable return" without such permit or that, after balancing the city's or county's interest in preserving the official map with the owner's interest in making use of his or her land, the permit is required by "justice and equity." The solution applied in a model law by the Advisory Commission on Intergovernmental Relations[374] is to restrict the development of the dedicated land but to also provide that, once a landowner applies for a permit to develop on dedicated land, the local government has a certain specific period of time to either commence eminent domain proceedings against the land in question or to amend the official map so that the land in question is no longer dedicated. This allows the government to avoid dealing with the problem until the landowner actually wants to develop the land. However, once the problem arises and the owner seeks permission to develop the dedicated land, the limitation of this approach becomes apparent: the government has only the choice of buying the property, whether the government is ready to use it for the public project or not, or changing the map so that the land in question is no longer set aside for a public use. A modern approach would give the government several alternate options. Another approach is to forbid the construction of buildings or permanent structures on land dedicated on an official map, but to then allow a variance in certain circumstances at the time the landowner applies for a permit to build. Such a procedure is contained in the 1935 Model Laws for Planning. A similar procedure is followed in New Jersey,[375] where if the parcel of land in a dedicated road bed or other area "cannot yield a reasonable return to the owner unless a building permit is granted," the board of adjustment or planning board may order the issuance of a permit to build on the dedicated property "which will as little as practicable increase the cost of opening such street, or tend to cause a minimum change of the official map," and the board may place reasonable conditions on the issuance of the permit. Features of the Model Statute The corridor map in Section 7-501 below reserves land only for the construction of transportation facilities, for the reasons above. The corridor map proposed in this Section is intended for use as a positive and flexible regulatory technique that can implement the transportation element of the comprehensive plan by coordinating new development with the provision of transportation facilities. A corridor map must be consistent with the local comprehensive plan, especially with the thoroughfare plan which is a part of the comprehensive plan. Therefore, no local government can adopt a corridor map unless it has first adopted a local comprehensive plan with a thoroughfare plan. The map is prepared by the local planning agency but takes effect only upon adoption by the local legislature after public hearing. Because governmental units other than the local government, such as county and state highway departments, may intend to construct roads within the local government's jurisdiction, and those roads are included in the thoroughfare plan, the local planning agency cooperates with these other governmental units in formulating the official map. In addition, before the map can be adopted, other governmental units whose intended roads are indicated on the map can formally object to that indication and have the land reserved on their behalf removed from the map. The effect of reservation is to forbid the construction or expansion of permanent structures in the intended right-of-way of planned transportation facilities as indicated on the map, and the owner of land including reserved land explicitly may build on the non-reserved portion of the land and may use the reserved portion as long as no permanent structure is placed there or expanded. The local government, or the governmental unit on whose behalf the land is reserved, may exercise the power of eminent domain at any time within the reservation period, and may at its discretion employ options to purchase. The designation of land on a corridor map loses effect after five years unless the intended transportation facilities have in that time been built or at least eminent domain proceedings have commenced against the reserved land. If a landowner applies for a permit for development on reserved land, there must be a hearing, open to the public, on the permit application. The local planning commission, planning agency, or a hearing officer may conduct the hearing, and after the hearing recommends a determination of the case from a list of options. These include (1) approving the permit, (2) approving it conditionally, (3) denying it, (4) staying proceedings for a specific period of time, (5) modifying the permit application and then granting it as modified, (6) eliminating or altering the reservation, (7) compensating the owner through TDRs or other similar mechanisms, (8) taking the right-of-way by eminent domain, or (9) obtaining voluntarily or by eminent domain a negative easement over the reserved land — that is, a contractual duty, running with the land, on the part of the owner not to build on the land, akin to a conservation easement, or purchasing an option on the land. Its recommendations are forwarded to the local legislative body, which can adopt or reject the recommendations or remand the matter for further hearings. For instance, if the recommendation is made to take the reserved land by eminent domain, and the local government (or other agency) does not commence to do so withing thirty days, there must automatically be a new hearing and a reconsideration of the recommendation. 7-501 Corridor Map (1) A local government may create and adopt a corridor map for its territory that designates land intended for the construction or improvement of transportation facilities. The map shall include land designated by the [state transportation department] for the construction or improvement of transportation facilities. As used in this Section, the term "transportation facilities" includes streets, highways, public transit, bikeways, and trails. — The model act purposely uses the term "corridor map" rather than "official map" to distinguish it from the more precise official map authorized by earlier model legislation. As suggested by the commentary, the map is limited to streets and other linear transportation facilities. The dedication or reservation of land for parks and schools, and the collection of impact fees for park and school facilities, are usually carried out in the subdivision approval or building permit process, where they can be done more effectively. Many states authorize state transportation agencies to adopt maps or by other means designate land intended for transportation facilities. It is important that a local corridor map include these facilities so that local governments can take these state facilities into account when exercising land use control powers. Some states require the inclusion of planned state facilities in local plans. See Del. Code Ann. tit. 17, 145. (2) The purposes of this Section are to:
— The statement of purpose emphasizes the use of the corridor map to implement the local comprehensive plan. The map is not just simply a technique to reserve land for condemnation. It is an important control that can reserve land for future transportation facilities so that new development and the construction of these facilities at appropriate locations can be coordinated. (3) The local planning agency may prepare a corridor map and the local legislative body may adopt a corridor map as provided in this Section.
— The local comprehensive plan should indicate any transportation facilities which are intended for construction or improvement. The purpose of this section is to authorize the local planning agency to cooperate with any state or local governmental units responsible for these facilities to identify in more detail, as necessary, the corridors in which these facilities will be constructed or improved.
— Because a corridor map is intended to implement the local comprehensive plan, a local government may not adopt one unless it has a comprehensive plan and unless the map is consistent with that plan. A corridor map adopted when there is no comprehensive plan, or that is not consistent with a local comprehensive plan, would be subject to challenge as being unauthorized by the statute.
— A proposal by the local planning agency is the first step in the adoption of a corridor map. The map itself is general rather than parcel-specific. However, the Section does not prohibit a corridor map that precisely identifies the land covered by the map, if the local government wants to adopt such a map. This subparagraph is based, in part, on the New Hampshire corridor protection act, N.H. Rev. Stat. Ann. 230-A:2. (4) Before the public hearing required by paragraph (5), below, if the proposed corridor map includes land intended for transportation facilities to be constructed or improved by governmental units other than the local government, the local planning agency shall submit a copy of the proposed corridor map to the chief executive officer of each such governmental unit.
— This is a formal approval by other governmental units, including state agencies, of the inclusion in the corridor map of land they intend to take for public use. The local planning agency should already have consulted with the other governmental units in drafting the corridor map, pursuant to subparagraph (3)(a) above. Notice that the agencies to be consulted include the state transportation agency. (5) The [local planning agency or local planning commission] may recommend a corridor map to the local legislative body only after [the agency or the local planning commission] has scheduled and held a public hearing on the map.
— Adoption by ordinance is essential to make the map legally binding. If the legislative body decides not to adopt the map, reconsideration by the planning agency is appropriate so the agency can redesign the map to take into account any problems or objections that arose at the hearings. The planning agency can then resubmit the map for additional consideration by the legislative body. (6) Upon the adoption or amendment of a corridor map, the local planning agency shall:
(7) After the adoption of a corridor map:
— A local government may, for reasons of local politics or increased certainty, prefer to have an option to buy reserved land rather than having no pre-existing rights in the land except the power to forbid construction on reserved land. However, this Section should not be interpreted as in any way compelling local governments to use land-purchase options. (8) After the adoption of a corridor map:
(9) No owner of real property shall carry out development upon reserved land, except as provided in this Section. No government shall issue any permit for development except pursuant to the procedure and in compliance with the criteria set forth in this Section.
— This paragraph expressly preserves the right of a landowner to use reserved land for purposes other than for development, as defined in this Section, and to develop the unreserved portion of his or her parcel.
— This provision prevents a local government from downzoning land with the goal of reducing its market value in anticipation of a taking, which would be a violation of the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution. It is directly related to the preceding subparagraph, which preserves the landowner's right to use reserved land. (10) An owner of reserved land who proposes to develop reserved land shall apply to the [local planning agency or local planning commission or hearing examiner] for a development permit. The applicant shall sign such written application, which shall include: — Section 10-301 et seq. of the Legislative Guidebook provide for the appointment of hearing examiners by the local government.
(11) Upon receiving the application, the [local planning agency or local planning commission or hearing officer] shall schedule a hearing on the application.
(12) Within [15] days of the completion of the hearing, the [local planning agency or local planning commission or hearing officer] shall produce a written report containing its recommendations on the applicant's proposal for development and findings and conclusions supporting its recommendations. The [local planning agency or local planning commission or hearing officer] may recommend any one or a combination of the following:
— Sections 8-601 (Land Development Exactions) and 9-401 (Transfer of Development Rights) will be included in the final version of the Legislative Guidebook.
— Paragraph (12) authorizes a variety of recommendations on the development proposal that can preserve the mapped corridor as much as possible while at the same time mitigating the impact of corridor preservation on the landowner who proposed development. For example, it may be possible to reduce or even reject the development proposed for the reserved land if sufficient offsets are provided through transfer of development rights or credits against exactions. The paragraph also contemplates recommendations that include internal clustering of development, and other modifications in the development proposal, that can allow the local government to approve the development without impairing the preservation corridor. Acquisition of a corridor preservation restriction is an alternative to full acquisition that can reduce preservation costs. (13) Within [5] business days after it has produced its report, the [local planning agency or local planning commission or hearing officer] shall:
(14) If the report recommends acquisition of the reserved land, or acquisition of a corridor preservation restriction on the reserved land, the governmental unit responsible for the construction or improvement of a transportation facility on the reserved land shall commence proceedings to acquire the reserved land or corridor preservation restriction within [30] days. If the government agency does not commence proceedings within [30] days, the [local planning agency or local planning commission or hearing officer] shall conduct additional hearings on the development proposal, as provided in this Section, and issue a new report and recommendations, as provided in paragraphs (12) and (13) above, which shall not include a recommendation of acquisition. — The government agency responsible for the transportation facility is given a set period to purchase the property or a corridor preservation restriction. This prevents delay caused by the agency claiming that it will acquire the property but making no timely effort to do so. If the acquisition is not commenced in that period, the additional hearings and new recommendations sustain the possibility of a compromise or mutually-acceptable solution even after the rejection of an recommendation of acquisition. It should be noted that the agency may be a state agency. If there is a similar state law authorizing corridor preservation by the state transportation department, legislation may be required to integrate the requirements of this Section with that law. (15) If the report does not recommend acquisition of the reserved land or a corridor preservation restriction, or if the governmental unit responsible for the transportation facility does not acquire the reserved land or a corridor preservation restriction in the reserved land, the local legislative body shall hold a hearing on the report of the [local planning agency or local planning commission or hearing officer] after notice in writing to the applicant of the date, time, and place of the hearing, by personal service or certified mail or, if represented by legal counsel, by personal service, certified mail, or facsimile to legal counsel. Following the hearing, the local legislative body may accept or reject the report, accept the report with modifications, or return the report to the [local planning agency or local planning commission or hearing officer] for additional consideration. (16) If the local legislative body approves the development proposed by the applicant, either with or without conditions:
— This subparagraph clarifies the relationship between the corridor map development permit and other local government regulations, including subdivision regulations. All other regulations continue to apply, and what another ordinance forbids, the corridor map development permit does not allow unless the local legislative body modified these regulations in approving the development permit.
(17) A decision by the local legislative body on a report on a proposal for development on reserved land is a "land-use action" subject to appeal as provided in Section [to be indicated]. — Provisions are to be made for the appeal of "land-use actions" in the model statutes. This paragraph makes it clear that these provisions apply to decisions by the local legislative body on proposals to develop reserved land. (18) A corridor map shall terminate and shall be of no effect unless, within [5] years, the governmental unit responsible for the transportation facility to be constructed or improved on reserved land:
— The case law, as discussed above, shows that a temporary restriction of land use, especially one of a fixed duration, is more likely to be upheld against constitutional challenge. This paragraph provides that any particular parcel of reserved land becomes no longer reserved if the government agency does not, within a set period, take steps to construct or improve the transportation facility that is the basis for the corridor map. This does not preclude the adoption of a new corridor map indicating the same reserved lands, but does require that adoption to undergo the original adoption procedure, including consultation with other governmental units and public hearings. Note that the bracketed five-year term of the corridor maps is a recommendation, since that period is consistent with the requirement to review the local comprehensive plan under Section 7-406 above. Moreover, the challenge to a restriction on a specific parcel of land that is reserved can be initiated at any time. Commentary: Local Capital Improvement Program and Capital BudgetAlongside zoning and subdivision control, the capital improvement program (CIP) — a five-year schedule of capital improvement projects — is one of the local government's most powerful tools for implementing a local comprehensive plan. By carefully selecting and timing capital projects, the CIP process can ensure that a local government repairs and replaces existing infrastructure, meets needs in mature, growing and redeveloping areas, coordinates activities of various government departments, and ultimately influences the pace and quality of development in a community. The CIP document itself consists of project descriptions and schedules and tables showing revenue sources and expenditures by year. Capital improvements include major non-recurring expenditures for such projects as civic centers, libraries, museums, fire and police stations, parks, playgrounds, street construction or reconstruction, sewage and water treatment plants, water and sewer lines, and swimming pools. Costs associated with capital improvement projects include architectural and engineering fees, feasibility studies, land appraisal and acquisition, and construction. The first year of the CIP becomes capital budget, when it is adopted by ordinance along with the operating budget by the legislative body.[376] Once the capital budget has been adopted, then the local government departments can begin to spend money on individual projects, contract for architectural and engineering design, acquire land and easements, sell bonds as necessary, and send out requests for construction bids. State planning enabling legislation (or municipal charters) may allow or direct the preparation of CIPs. New Jersey statutes, for example, authorize the governing body to formally designate the planning board (as it is called) as the group that formulates the CIP, coordinating its preparation with municipal officials and the local school board.[377] In Florida, the local comprehensive plan must include a capital improvement element, to be reviewed on an annual basis.[378] The element must contain standards to ensure the availability of public facilities at acceptable levels of public service. For urban and rapidly urbanizing counties and the cities within them that are required to plan by statute as well as local governments that choose to plan even if state law does not mandate it, Washington state requires that the comprehensive plan include a capital facilities plan element consisting of:
In Nevada, a local government cannot impose impact fees unless it first prepares a CIP, which must be updated at least every three years.[380] This requirement is intended to ensure that local governments adequately plan how the impact fee revenues are to be spent after they have been collected from developers. The statute requires that such revenues be placed in a separate interest- bearing account that clearly identifies the category of capital improvement within the service area for which the fee was imposed. Other states have a similar requirement for the preparation and adoption of a CIP as a condition of imposing impact fees.[381] The following Section provides for the preparation of a CIP and the adoption, by ordinance, of a local capital budget. The CIP and capital budget are intended to carry out the program of implementation contained in the local comprehensive plan. The legislative body first designates the local planning agency or some other department to be responsible for overseeing the CIP's preparation for the legislative body's consideration on an annual basis. Once it has received the draft CIP, the legislative body may refer it to the local planning commission, if one exists, for recommendations. The legislative body may hold a public hearing on the CIP before adopting the local capital budget portion of the CIP by ordinance to cover expenses for capital improvements for the fiscal year. 7-502 Local Capital Improvement Program; Adoption of Local Capital Budget (1) In order to carry out proposed projects contained in the program of implementation of a local comprehensive plan, a local government [shall or may] on an annual basis prepare a local capital improvement program (CIP) and adopt a local capital budget. The legislative body shall designate either the local planning agency or another department of the local government to be responsible for formulating and revising the CIP for its consideration. (2) The CIP shall include, but shall not be limited to:
(3) The local planning agency or other designated department shall request proposals for local capital improvements from local government departments and boards and commissions, recognized neighborhood or community organizations, and citizens. The agency or designated department shall develop and periodically revise instructions and guidance for the submission of proposals for potential inclusion in the CIP. (4) The local planning agency or other designated department shall formulate the CIP for consideration by the legislative body, which may refer the CIP to the local planning commission, where it exists, for an advisory report on the necessity, desirability, relative priority of local capital improvements by reference to the local comprehensive plan, and any other relevant matters in connection with the document. If requested, the local planning commission shall make its advisory report within a period established by the legislative body, but such report shall not be binding on the legislative body. Upon receiving the local planning commission's report, the legislative body may modify the CIP. The legislative body may, after giving notice, hold a public hearing on the CIP. The legislative body shall then adopt the local capital budget by ordinance pursuant to Section [cite to state law on adoption of budgets by ordinance]. (5) No funds for a local capital improvement shall be encumbered or spent and no bonds shall be issued to support such improvement unless the improvement is included in the adopted local capital budget. [(6) No local government shall adopt an impact fee ordinance pursuant to Section [8-602] unless it has first prepared a CIP and adopted a local capital budget pursuant to this Section. After it has adopted an impact fee ordinance, it shall continue on an annual basis to prepare a CIP and shall adopt a local capital budget pursuant to this Section.] — This paragraph is only required if the state authorizes impact fees by statute, although municipalities that operate in home rule states may not require enabling legislation. Commentary: Implementation AgreementsOnce a local comprehensive plan has been adopted, its provisions will, of course, be implemented if resources are made available to do so. A local government will typically enact ordinances that effectuate particular portions of the plan through such devices as zoning and subdivision control and then enforce them through its own personnel and administrative bodies. In addition, it will budget funds for new programs and capital projects called for in the plan. However, there are instances when an entity other than the local government itself may be in a better position to implement elements of the comprehensive plan. For instance, a local government may wish to contract out the operation of a wastewater treatment plant to a county or regional agency. Code enforcement could be undertaken by another governmental body as well.[384] It may be more efficient and avoid conflicts to have agreements with special districts regarding implementation of the plan, as when a local government plans transit-oriented development areas around stations operated by a transit authority. Neighborhood or community organizations may be the best entities to carry out certain social programs such as child day care or neighborhood-based economic development. Private organizations may also be an essential part of a given local government's plan implementation. Several states currently have statutes that specifically authorize the formation of such implementation agreements.[385] Most of these statutes require that the agreement must state the purpose of the agreement, describe the financing arrangement, and provide for the termination of the agreement. Some contain provisions concerned with the ability or authority of parties to the agreement to perform their duties under the agreement,[386] and some require that any agreement be approved by ordinances of the legislative bodies of the governmental parties.[387] Kansas explicitly includes private for-profit and not-for-profit entities as potential parties to such agreements.[388] Kansas also specifically provides for cooperation agreements between local governments "in the exercise and performance of planning powers, duties, and functions."[389] Some states may wish to authorize that implementation agreements be entered into only between governmental agencies or between governmental agencies and not-for profit organizations. Others may want to allow private consultants and other for-profit entities to enter into implementation agreements. Section 7-503 below leaves that option open to the legislature. The Legislative Guidebook has explicitly included neighborhood and community organizations as potential parties to implementation agreements because of their quasi-governmental nature and their potential for bringing grass-roots perspectives and action to plan implementation. It also authorizes local governments to contract for plan implementation with federal agencies and Indian tribes. This may be useful, for example, in contracting with the U.S. Army Corps of Engineers on a drainage or stormwater issue or with an Indian tribe whose territory borders a local government. An agreement under this Section cannot be entered into unless the contracting party has the resources to perform under the agreement. Furthermore, the agreement may be terminated if the contracting party no longer has sufficient resources to perform under the agreement, even if it did at the time of formation. 7-503 Implementation Agreements (1) A local government that has adopted a local comprehensive plan may enter into agreements with other entities, including [federal agencies, Indian tribes and nations], the [state planning agency], state agencies, any [regional planning agency], neighborhood and community organizations, special districts, school districts, universities and colleges, and non-profit [and for profit] corporations and organizations, to implement the local comprehensive plan or any element or portion thereof, whether implementation entails the development or construction of a local capital improvement, the provision of a service, or the enforcement or administration of ordinances or regulations. (2) An implementation agreement shall not take effect and shall not be binding unless approved by the legislative body of the local government and enacted as an ordinance thereof. (3) Before a proposed implementation agreement is submitted to the legislative body for its approval, the solicitor, or other such attorney for the local government, shall review the proposed agreement as to whether it is in proper form and whether the parties to the proposed agreement have the authority to perform their duties under the agreement, and shall submit a written copy of the review to the legislative body.[390] — As discussed in the commentary, review of a proposed agreement by the local government's attorney is one of the methods of ensuring that all the parties to an agreement have the authority to perform the agreement. The other method, review by a state agency or official, was rejected as unduly intrusive in the formation of a bilateral agreement, since such review is not or may not be limited to the issue of authority or proper contractual form. Note that state review is mandated when a state agency would be affected by the agreement, or the agreement was with the state, another state, or the federal government, but usually not in the typical case. (4) An implementation agreement entered into pursuant to this Section shall include or address the following:
(5) No implementation agreement shall be formed by the local government with any entity that is found by the local government to have insufficient resources and authority to perform its duties under the agreement. The failure, whether existing at the time of agreement or arising thereafter, of a party to have sufficient resources and authority to perform its duties under the implementation agreement shall be sufficient grounds for the other party or parties to unilaterally terminate the agreement. (6) No implementation agreement entered into pursuant to this Section shall relieve any party to the agreement of any obligation or responsibility imposed on it by law. Commentary: Benchmarking in Local Comprehensive PlansPerformance benchmarking is a process of ensuring accountability in planning. A benchmarking system allows the local government to develop general descriptions of what it hopes to achieve through its various programs or by implementing proposals in its plans. It then develops baseline indicators, numeric if possible, that will track the achievement of the desired conditions. After identifying desired conditions, the local government sets thresholds of where the indicator will be at certain points in the future. The local government then periodically tracks the achievement of those desired outcomes. While no existing local planning statutes require benchmarking per se,[391] a number of local governments have voluntarily begun benchmark programs.[392] Noblesville, Indiana, for example, established a benchmarking process in 1994, adopted benchmarks that informed the preparation of a comprehensive plan, and created by ordinance a steering committee and commission to track the achievement of benchmarks and report to the legislative body.[393] Prompted by the Washington state growth management act, King County and 35 cities in the Seattle metropolitan area established and adopted a benchmarking system in 1994 to monitor the effectiveness of countywide planning policies. The participating communities prepare a report that tracks the outcomes described in the benchmarks.[394] Several states have amended their statutes to provide for a benchmarking system.[395] Oregon is the most notable example. The Oregon Progress Board, created by the state legislature in 1989, is a nine-member body, with eight citizen representatives and the governor, that is charged with carrying out a state strategic plan and follows the achievement of goals in that plan through a state benchmarking process.[396] The board issues biennial reports on the benchmarks and encourages local governments to establish complimentary programs. At least nine local governments in the state have initiated the development of benchmarking systems.[397] The New Jersey State Planning Act requires that the state development and redevelopment plan contain "monitoring . . . targets in the economic, environmental, infrastructure, community life, and intergovernmental coordination areas to be evaluated on an on-going basis following adoption of the Final Plan."[398] The act requires the state planning commission, in implementing a monitoring program, to evaluate reasons for the failure to realize plan targets and determine if changes in those targets or policies are warranted. A 1997 draft of the revised state plan encourages counties and municipalities to establish their own indicator programs and share information with such programs with others.[399] Section 7-504 describes a benchmarking process to be incorporated into a local comprehensive plan. Under this Section, a local government establishes benchmarks for plan elements and designates a department, such as the local planning agency, to monitor progress towards benchmarks and report on such progress on an annual basis. If desired by the legislative body, the local planning commission or special task force may assist the designated department in the annual review. In addition, data on achievement of benchmarks are to be included in the local comprehensive plan re-examination report required under Section 7-406. Some Possible Benchmarks Here are some possible benchmarks that a local government could employ to measure achievement of its local comprehensive plan:[400]
7-504 Benchmarks; Reporting Requirements (1) A local government shall establish benchmarks for each element of a local comprehensive plan, except for the issues and opportunities element described in Section [7-203] above. (2) The benchmarks shall be included in the program of implementation pursuant to Section [7-211(2)(d)] above. (3) The legislative body shall designate either the local planning agency or another department of the local government to be responsible for establishing a benchmarking system. The local planning agency or the designated department may seek comments and opinions regarding the benchmarking system from any neighborhood planning council established pursuant to Section [7-109] above, any neighborhood or community organization recognized pursuant to Section [7-110] above, and the public. The legislative body may also designate the local planning commission, if one exists, or may create and designate a task force to advise the local planning agency or the designated department in the interpretation of the data. (4) The local planning agency or the designated department shall prepare an annual written benchmark report for the legislative body and the chief executive officer that compares the benchmarks with actual data on performance and includes any advice, comments, and opinions received. If the local planning agency prepares the benchmark report, that report shall be included in the agency's annual report pursuant to Section [7-107] above. Any reexamination report on the local comprehensive plan required by Section [7-406] above shall also include an analysis that compares the benchmarks with actual data on performance for at least the previous [5]-year period. Note 7A — A Note on Neighborhood Plans This research note describes an analysis of the contents of 47 neighborhood plans which were submitted to the American Planning Association in 1996 in response to a request to members of its Planning Advisory Service. All plans were adopted between 1980 and 1996, with the majority of them being adopted after 1992 (see Appendix). The plans are a mix of what might be considered collaborative plans and the more traditional, city-sponsored, single-agency neighborhood plans. Of particular interest were plans from communities that had begun to do collaborative planning — planning in which multiple city departments, community organizations, citizens, local stakeholders, and social service providers successfully coordinated their efforts to deliver a wide range of quality services at the neighborhood level and to provide a more responsive, interactive environment for residents to express their concerns and needs. Though this kind of multidisciplinary, community planning has been taking place over the last few decades, it is far from standard operating procedure in most places. APA's survey revealed that over 36 elements appear in neighborhood plans in various combinations. It is clear that no all-encompassing recommendation can be made on what should comprise the content of neighborhood plans. While these elements can offer suggestions of what might work for a particular neighborhood, the balance of any plan's content will have to evolve out of the process a community undertakes to assess its needs, resources, and values. APA has used the following series of symbols to make clear the importance of each of the elements that were identified. After describing the elements, the analysis makes a series of recommendations concerning best practices. Those recommendations are in italics.
APA grouped the plan elements into the following categories, based on their relative purpose and sequence in the planning process: (1) General Housekeeping. Organizational items that make the plan readable and usable and serve to encourage further involvement in the planning process. (2) Planning Process Validation. Elements that demonstrate the legitimacy of the research and consensus-building processes that led to the development of the plan. (3) Neighborhood Establishment. Elements that serve to create an image or identity for the community apart from the jurisdiction as a whole. (4) Functional Elements. Substantive items that may vary widely from plan to plan (e.g., safety element, housing element, etc.). (5) Implementation Framework. Those elements that are the goals, programs, actions, or schedules used to implement the plan. (1) General Housekeeping Elements. The elements in this category are used to create a clear, navigable plan document. The rule of thumb for these items is "consider the reader." Elements listed below serve to engage the reader in the neighborhood planning process, whether that person lives or works in the neighborhood or holds a powerful position in city hall. They also reflect the hard work of all the neighborhood planning participants.
(2) Planning Process Validation. Nowhere is citizen participation as critical as it is at the neighborhood planning level. In order for people to take ownership of their local planning process, the business of planning and interacting with city hall has to be demystified. Information has to be accessible and comprehensible. Putting information about how the planning process operated makes the plan a working reference document, and it in turn validates the process by providing documentation. The following items were found in many of the plans reviewed.
(3) Neighborhood Establishment. Though neighborhood plans are supposed to be about securing the future, they also serve to fortify the present by giving the neighborhood a distinct concept of itself through boundary delineation, historical analysis, and identity analysis.
(4) Neighborhood Plan Elements. Most of the plans had four or five elements, such as housing, safety, land use, and recreation, that were addressed as separate topics. Sometimes the elements would begin with a description or inventory of existing conditions, as was mentioned above in the section on inventories, and end with proposals for action. Others would simply list policy recommendations and the implementation strategies to carry out those recommendations. Some neighborhood plan elements were included as a requirement or a preference to maintain consistency with the local government's comprehensive plan.
(5) Implementation Framework. A statement of goals and objectives typically follows neighborhood plan's analysis of existing conditions, needs assessment, and statement of the community's desires for the future. This is sometimes followed by an implementation program or schedule.
Appendix — List of Neighborhood Plans Reviewed (by Chronology)Southeast Arvada Neighborhood, 1980 - Arvada, Co. Curtis Park Neighborhood, 1987 - Denver, Co. Northwest Plan, 1991 - Columbus, Ohio Broadway Neighborhood, 1992 - Rock Island, Ill. Kenton Neighborhood, 1993 - Portland, Ore. Boise Neighborhood, 1993 - Portland, Ore. Northgate Neighborhood, 1993 - Seattle, Wash. Poco Way Neighborhood Revitalization Strategy, 1994 - San Diego, Calif. Laurel/Nikomis Neighborhood, 1995 - Sarasota, Fla. West Side Neighborhood, 1996 - Manchester, Conn. Note 7B — A Note on Comprehensive Planning Requirements in State Statutes This research note and accompanying Table 7-5 provide an overview of
state statutes on local comprehensive planning. The statutes described
in the table are only the single best statute for local planning in each
state (for example, if the municipal statute is more precise than the
county statute, the municipal statute is summarized). This is an important
point because states frequently have two or more statutes on local planning
and the "best" one in each state was selected for this overview.
In this sense, this overview is a best case scenario of state statutes
on local planning.
Key to Table 7-5 These explanations of symbols (letters and numbers) in Table 7-5 are listed by column number: 1. State postal abbreviations. 2. Similarity of surveyed statute to 1920s planning statutes are described as numbers 1 through 4 meaning:
3. This column is an overview, usually from more than one statute, of what types of municipalities have mandatory or optional planning. (By contrast column 9 concerns only the municipalities in the one statute logged in the remainder of the columns.) The letters "M,""I," and "O," related to whether planning is mandatory or not as:
The other symbols in this column 3 concern the type of municipality as:
4. See the descriptions in column 3 concerning "M," "O," and "I." 5. Y - yes, N - no. 6. Same as column 5. 7. The numbers 1 through 4 in this column describe the strength of the state role in local planning as:
8. Citations of statutes. 9. See column 3 for the abbreviations of types of municipalities. 10. Same as column 5. 11. Through 31. These columns describe the various plan elements, of the best or most detailed statute on local planning in each state, generally with two symbols. The first symbol (M, O, or I as in column 3) relates to whether the element is mandated. The second symbol (numbers 1-3) describes how detailed the plan element is in the statute as:
In order to distinguish the letter "I" from the number "1," in these columns, note that the first symbol is always a letter and the second is always a number. 15. This column includes the additional symbols as letters in parenthesis as:
32. This column describes other types of plans that are mentioned in the surveyed planning statutes and the symbols are those for columns 11 through 31. | My APA
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