April 2005

The Statehouse

By James Lawlor

Florida: Growth Management Changes. Florida's Growth Management Act marks its 20th anniversary this year, and the agency responsible for administering it, the Department of Community Affairs (DCA), is celebrating the event by proposing a number of changes to the law. The department's effort is presently in its second draft. In its comments on the agency's first draft, the Florida APA chapter noted that while the draft did not appear to conflict with the chapter's legislative priorities, it failed to identify funding for changes to regional planning councils and infrastructure, or how existing state funds would be redirected. The chapter pointed out that the state's growth management system had suffered from severe shortages of funding from its inception, a situation that greatly hampered its effectiveness. The second draft does not indicate any great desire on the part of the DCA to grasp the funding nettle, referring vaguely to a "funding piece to be added in separate section." A bill stating the "intent to enact laws providing revenue sources to fund growth management" (S.B. 2430), but lacking any detail, was introduced in the state senate March 8.

The bill limits DCA authority to comment on and appeal modifications of local comprehensive plans to those issues that implicate one of a shortened list of "priority state interests." These include strategic intermodal transportation facilities, public education facilities, significant conservation and recreation lands, strategic habitat, water supply, significant wetlands and surface waters, and certain listed plant and animal species.

The bill provides that the state planning agency may delegate review of reports on compliance with comprehensive plans to the appropriate regional planning council, in which case a local government may opt to have its report reviewed by the regional planning council rather than state land planning agency. The bill encourages regional planning councils to provide technical assistance to smaller and rural local governments, but the chapter's comments note that regional planning councils in the past have not been given the funds to carry out such duties.

Oregon: Where's the Money? Measure 37, passed by the voters in last November's election, gives state and local government a choice if a landowner can establish that enforcement of a land-use regulation restricts the use of his property in such a way as to reduce its fair market value. The government may either pay compensation or waive application of the regulation.

Unfortunately, neither the state government nor local governments have any spare cash to pay the estimated 460 claims that had been filed by early March. Many local governments have decided their only course of action is to issue waivers of the disputed land-use regulations. Some have even authorize the use of blanket waivers, although an informal opinion from the state attorney general's office says they are required to consider claims on a case-by-case basis.

Bills have been introduced in the legislature that would provide a funding mechanism for compensating landowners making claims under Measure 37, modify the impact of the measure, or both. S.B. 406, sponsored by Sen. Kurt Schrader (D-Clackamas County), would allow property owners to file a claim for compensation if a restriction on the use of land adopted after the effective date of the law reduced the property's value by 25 percent or more, or multiple restrictions caused a reduction in value of 45 percent or more. However, any increase in the property's value of five percent or more due to government action would have to be included in calculating the reduction in fair market value.

Compensation is defined as including cash, land or development benefits, or a combination. Development benefits include modifications, variances or adjustments of restrictions that result in an increase in market value, transferable development credits, land exchanges, density increases, or modifications of a condition placed on approval of a particular use of the property.

S.B. 406 also provides for a "compensation and conservation tax" imposed on private property that benefits from the imposition of a restriction on other private property. The tax would be imposed on the difference between the fair market value of property after the restriction is adopted and its market value as of the most recent assessment date. If the number is positive, the tax is imposed.

S.B. 308, also introduced by Sen. Schrader, would repeal Measure 37 and establish a method of compensating landowners for loss of property value caused by the imposition of land-use restrictions. The compensation system and tax scheme to support it appear to be identical to that provided in S.B. 406. H.B. 2549 would permit construction of a single-family dwelling on land subject to a restriction that prevents construction that would have been permissible when the owner acquired the land.

These bills are emblematic of about 30 measures introduced in the legislature intended to apply Measure 37, alleviate its impact, or effectively repeal it. So far, none of the bills has progressed out of committee.

Massachusetts: Land Use Reform, Again. After a rather disappointing legislative session last year, proponents of reforming the state's antiquated land-use laws are ready to try again. A revamped Massachusetts Land Use Reform Act has been introduced in both houses, with 48 co-sponsors as of late December 2004. The sponsors are hoping to avoid the drawn-out process of amendment and counter-amendment that kept the measure from being acted upon last year. The Coalition for Zoning Reform will be kicking off this year's effort April 6, with the second annual Forum on Land Use Reform at the Suffolk University Law School in Boston.

Some of the highlights of the reform bill include requirements that zoning ordinances and subdivision regulations be consistent with a locality's adopted master plan; a requirement for a public hearing before adoption of a master plan; and revisions to the zoning law's "grandfather" provisions. The bill also authorizes localities to require residential subdivisions to include extra building lots for affordable housing units, specifically authorizes the use of impact fees, authorizes transfer of development rights, provides for non-judicial resolution of land-use disputes, and makes various procedural reforms.

The text of the proposed legislation and other information on the zoning law reform effort can be found on the Massachusetts City Solicitors and Town Councils Association site, www.massmunilaw.org.

Michigan: Zoning Law Rationalization. Rep. Kevin Elsenheimer (R-Bellaire) has introduced a bill (H.B. 4398) that would combine the state's three zoning acts, covering counties, townships, and cities and villages, into a single unified law. As it happens, this is a project the Michigan Society of Planning Law Committee has been working on for over two years. After being contacted by Rep. Elsenheimer for technical assistance, the committee was able to turn out a draft bill in a matter of a few days. The law committee notes the bill makes no substantive changes to Michigan's existing land-use laws; it simply makes them easier to understand and apply.

The chapter also is backing proposed legislation (S.B. 100) that would require school districts to conform to local zoning in siting schools. It would also require notice to nearby residents of the proposed school location.