Local Planning

Chapter 7 provides the authorizing legislation for planning at the local level of government. It is divided into four parts. The first part addresses the role of the planning function in local government — how the "local planning agency" is established, what its relationship with the legislative body and chief executive officer should be, and what are its powers. Several alternatives are advanced for the structure of a local planning commission. This part also provides a role for neighborhood planning councils and independent neighborhood and community organizations.

The second part details the contents of a local comprehensive plan in terms of a mandatory set of elements (if the decision is made to mandate local planning) and optional elements. The section also describes different subplans that are focused on specific areas, like neighborhoods, transit stops, and redevelopment areas. In addition, the text includes model language that describes systems for land market monitoring to ensure an adequate supply of buildable land. Such a system would be required if the local comprehensive plan contains urban growth areas, which are described in Chapter 6, Regional Planning.

The third part sets forth procedures for plan review, adoption, and amendment. The plan review component contains an optional procedure for state approval of regional and local comprehensive plans, with an appeal to a state comprehensive plan appeals board. Municipalities would also be able to appeal to the board urban growth area designations by a regional or county planning agency if agreement cannot otherwise be reached. Another innovative feature of this part is its express provision for public collaborative processes in plan-making that goes beyond the simple requirement of the single public hearing advocated in Section 8 of the Standard City Planning Enabling Act (1928). It offers a model statute to guide local governments in ensuring that the plan preparation process engages the general public.

The fourth part describes measures that carry out the plan and monitor its implementation, including corridor mapping and local capital budgeting. The section also includes a description of agreements with other governmental units and nongovernmental organizations, which are identified in the local comprehensive plan as having implementation responsibilities. It also provides for the establishment of benchmarking systems to measure and track performance in achieving the goals of local plans.

Chapter Outline

General Provisions

7-101 Definitions
7-102 Establishment of Local Planning Agency
7-103 Powers of Local Planning Agency
7-104 Rule-Making Authority

Organizational Structure

7-105 Establishment of Local Planning Commission
7-106 Powers and Duties of Local Planning Commission
7-107 Annual Reports of Local Planning Agency and Local Planning Commission
7-108 Designation of Neighborhoods
7-109 Neighborhood Planning Councils
7-110 Neighborhood and Community Organizations; Recognition

Plan Preparation

7-201 Local Comprehensive Plan, Generally; Purposes
7-202 Specification for Plan Elements and Supporting Studies; Economic, Demographic, and Related Assumptions; Mandatory and Optional Elements; Opt-Out Provisions; Joint Plan or Plan Element Preparation

Local Comprehensive Plan Elements

Required Elements or Elements that Are Required but with an Opt-Out Provision

7-203 Issues and Opportunities Element
7-204 Land-Use Element
7-204.1 Land Market Monitoring System [Optional, but Required if Urban Growth Areas Are Required]
7-205 Transportation Element
7-206 Community Facilities Element
7-206.1 Telecommunications Component
7-207 Housing Element (Two Alternatives)
7-208 Economic Development Element [Opt-Out Provision Applies]
7-209 Critical and Sensitive Areas Element [Opt-Out Provision Applies]
7-210 Natural Hazards Element [Opt-Out Provision Applies]
7-211 Program of Implementation

Optional Elements

7-212 Agriculture, Forest [, and Scenic] Preservation Element
7-213 Human Services Element
7-214 Community Design Element
7-215 Historic Preservation Element
7-216 [Other]

Subplans

7-301 Neighborhood Plan
7-302 Transit-Oriented Development Plan
7-303 Redevelopment Area Plan
7-304 [Other Subplans — for Future Expansion]

Procedures for Plan Review, Adoption, and Amendment

7-401 Public Participation Procedures and Public Hearings
7-402.1 Comprehensive Plan Appeals Board
7-402.2 Review and Approval of Regional and Local Comprehensive Plans and Significant Amendments
7-402.3 Appeal of Determination Regarding Urban Growth Area Designation
7-402.4 State[,][and] Special District[, and School District] Projects Not Included in Approved Regional and Local Comprehensive Plans; Review by Comprehensive Plan Appeals Board
7-402.5 Submission of Plans Under This Act; Withholding of Grant Money
7-403 Adoption of Local Comprehensive Plans
7-404 Certification, Filing, and Recordation of Local Comprehensive Plans; Availability for Purchase; Computer Access to Plans
7-405 Amendment of Local Comprehensive Plans
7-406 Periodic Review and Revision of Local Comprehensive Plans and Land Development Regulations

Implementation; Agreements with Other Government and Nonprofit Organizations

7-501 Corridor Map
7-502 Local Capital Improvement Program; Adoption of Local Capital Budget
7-503 Implementation Agreements
7-504 Benchmarks; Reporting Requirements

Table 7-1 Voluntary Planning Organizations
Table 7-2 Organizing for Neighborhood Planning
Table 7-3 Local Comprehensive Plan Elements in Model Statutes
Table 7-4 Some Pros and Cons of Mandatory Local Planning
Table 7-5 Summary of State Statutory Requirements for Comprehensive Plans

Note 7A — A Note on Neighborhood Plans

Appendix — List of Neighborhood Plans Reviewed (by Chronology)

Note 7B — A Note on Comprehensive Planning Requirements in State Statutes

Cross-References for Sections in Chapter 7

Section No. Cross-Reference to Section No.

7-101 All Sections in Ch. 7
7-102 7-103, 7-104, 7-105, 7-107, 7-204.1, 7-406, 7-501, 7-402, 7-504, Chapter 7 generally
7-103 7-102, 7-104, 7-105, 7-107, 7-204.1, 7-406, 7-501, 7-402, 7-504, Chapter 7 generally
7-104 7-102, 7-103
7-105 7-106
7-106 7-102, 7-105, 7-107, 7-301, 7-302, 7-303,7-401
7-107 7-102, 7-103, 7-106, 7-504
7-108 7-109, 7-110, 7-301, 7-401
7-109 7-108, 7-110, 7-301, 7-401
7-110 7-108, 7-109, 7-110, 7-301, 7-401

7-201 2-102, 4-207, 4-208, 6-201, 6-203, 7-202 to 7-216, 7-301 to 7-302, 7-401 to 7-406, Ch. 12
7-202 7-201, 7-202 to 7-216, 7-301 to 7-302, 7-401 to 7-406, Ch. 12
7-203 7-201 to 7-202, 7-204, 7-208, 7-401
7-204 4-204, 5-204, 6-201, 6-201.1, 7-201 to 7-202, 7-204.1, 7-205, 7-206, 7-209, 7-211, Ch. 12
7-204.1 6-201, 6-201.1, 7-204
7-205 6-204, 7-205, 7-211, 7-302, 7-501, 7-503, Ch. 12
7-206 7-204, 7-206.1, 7-211
7-206.1 4-206. 1, 7-202, 7-206, 7-211

Section No. Cross-Reference to Section No.

7-207 4-207, 4-208, 6-203, 7-208, 7-211, Ch. 12
7-208 4 -206, 7-202, 7-203, 7-204, 7-207, 7-211, 14-201
7-209 5-203, 5-204, 7-202, 7-204, 7-205, 7-206, 7-210, 7-211, 7-504
7-210 5-203, 5-204, 7-202, 7-211
7-211 6-402, 7-201 to 7-210, 7-212 to 7-214, 7-301 to 7-303, 7-502, 7-503, 7-504
7-212 7-204, 7-211, 7-503
7-213 7-211, 7-503
7-214 7-211
7-215 5-203, 5-204, 7-211

7-301 7-106, 7-108 to 7-110, 7-211
7-302 7-205, 7-106, 7-211
7-303 7-106, 7-211, 7-503

7-401 7-106, 7-108 to 7-109, 7-110, 7-201 to 7-203
7-402.1 7-402.2 to 7-402.5
7-402.2 4-202, 6-305, 6-305, 7-402.1, 7-402.3 to 7-402.5, 7-403
7-402.3 6-201, 6-201.1, 7-402.1 to 7-402.3, 7-402.4 to 7-402.5
7-402.4 7-402.1 to 7-402.3, 7-402.5
7-402.5 7-402.1 to 7-402.4
7-403 5-101 et seq., 5-201 et seq., 5-301 et seq., 7-402.2, 7-404 to 7-405, 7-501
7-405 7-403, 7-405
7-406 7-102 to 7-103, 7-201 to 7-202, 7-204.1, 7-405, 7-504, 8-102, 8-103, 8-601, 8-602, 10-201 et seq.

7-501 7-205, 7-403
7-502 7-211
7-503 7-205, 7-211, 7-212, 7-213, 7-303
7-504 7-107, 7-109, 7-110, 7-211, 7-406

Why Should Local Governments Plan?

This Chapter provides the authorizing legislation for planning at the local level of government — how local governments organize to plan, what plans should contain, and the processes for adopting them.[1] It is noteworthy that, throughout the United States, even where state statutes do not require planning, local governments of all sizes continue to plan on their own. This underscores how widespread the recognition of the benefits derived from such planning has become. While each local government may have a special set of reasons in undertaking the preparation of plans, several of the most frequently-mentioned include:

— Local planning draws the attention of the local legislative body, appointed boards, and citizens to the community's major development problems and opportunities — whether they be physical, environmental, social, or economic. A plan gives elected and appointed officials in particular an opportunity to back off from their preoccupation with pressing, day-to-day issues and to clarify their ideas on the kind of community they are trying to create by their many specific decisions. The local planning process provides a chance to look broadly at programs a local government may initiate regarding housing, economic development, provision of public infrastructure and services, environmental protection, and natural and manmade hazards and how they relate to one another. A local comprehensive plan represents a "big picture" of the community, one that can be related to the trends and interests of the broader region as well as the state in which the local government is located.[2]

— Local planning is often the most direct and efficient way to involve the members of the general public in describing the community they want. The process of plan preparation, with its attendant workshops, questionnaires, meetings, and public hearings, permits two-way communications between citizens and local government officials as to a vision of the community and the details of how that vision is to be achieved. In this respect, the plan is "a blueprint of values" that evolves over time.[3]

— Local planning results in the adoption of a series of goals and policies that, ideally, should guide the local government in administering regulations like zoning and subdivision controls, in the location, financing, and sequencing of public improvements in the community, and in guiding redevelopment efforts. In so doing, it may also provide a means of coordinating the actions of many different agencies within the local government itself.

Apart from these reasons from the local government perspective, local planning also has direct benefits to the private sector.

— Because planning results in a statement of how the local government intends to act over time with respect to its physical development and redevelopment in terms of public investment and execution of land development controls, the "private land owner may shape his own plans in the plastic stage when they have not yet crystallized" in the words of one writer.[4] A plan sends signals by providing a "prophecy of public reaction" to specific development proposals, which ultimately influences complimentary private investments.[5]

— The predictability that a plan offers by its requirement of information-gathering and analysis ensures (hopefully) that what a local government does is based on facts, not "haphazard surmises." It thus provides a measure of consistency to governmental action, a "guard against the arbitrary" that "diminishes the problems of discrimination, the granting of special privileges, and the denial of equal protection of the laws."[6]

Finally, from the standpoint of the state itself, it is desirable that local governments plan. State facilities like freeway interchanges and parks are affected by what local governments authorize to occur around them. A local government can allow development that is either compatible or incompatible with such state investments. Typical state interests — like protection of wetlands, preservation of coastal areas and farmland, and provision of affordable housing — are directly influenced by what local governments do. While states do not, in all instances, attempt to directly influence the substantive content of plans or their implementation, the preparation of such plans does provide an opportunity for such interests to be raised so that local governments can address them in a positive and proactive manner. The mere fact that a local government might consult with the state transportation or natural resources department in a plan's preparation is a way in which state interests may be articulated and accommodated.

Where should the planning organization in local government be located? How should its powers be defined and described? The planning organization is an inherently unusual agency since it incorporates both line (providing direct service to the public) and I(providing advice to the executive branch and analysis across line departments) functions. These functions may be performed by I in one office (e.g., a long-range planning division as well as a current short-range planning division — incorporating permit issuance, zoning, and subdivision). The planning organization or department may report to either the local chief executive, an independent planning commission, or the legislative body itself. It may also be part of a community development department that includes engineering, building, housing, and environmental code enforcement, as well as federal Community Development Block Grant administration. When the planning organization is fulfilling a staff function (such as preparing long-range plans, advising on policy, or conducting research), it is typically serving a diverse constituency that includes the chief executive officer, the legislative body, the individual line departments, and the planning commission itself.[7] Sometimes a local government will obtain technical planning services through contracts with regional planning agencies, other local governments, and planning consultants.

Over the years, model statutes and journal articles have proposed a wide variety of approaches for establishing the planning function in local government.

(1) Standard City Planning Enabling Act (SCPEA). The SCPEA, drafted by an advisory committee of the U.S. Department of Commerce in the 1920s, proposed the creation of an independent municipal planning commission, to be composed of nine members, including the mayor, one of the administrative officials of the municipality selected by the mayor, a member of the council selected by the council itself, and six other persons who were to be appointed by the mayor, if the mayor was elected.[8] The terms of the appointed members were six years. If the mayor was not elected, then the council would select the remaining six members. Commission members were to receive no compensation for their work.

Under the SCPEA, the planning commission was the municipal planning agency. It had the authority to hire staff and contract with city planners, engineers, and other consultants to carry out its responsibilities. The expenditures for its activities, exclusive of gifts, were to be within the amounts appropriated for the purpose by the council, which was to provide the funds, equipment, and accommodations for the commission's work.[9]

A note to the SCPEA indicated that the number of members on the planning commission could range widely. States "may prefer to adopt a more elastic provision, as, for instance, from 5 to 11 members, thus giving the council of each municipality some leeway to be varied somewhat according to the size of the municipality."[10]

On the question of whether to include the mayor, the SCPEA's authors wrote, "there is a decided difference of opinion."[11] The central issue was whether the planning commission was to include a person who would represent the municipal administration on the commission. According to the SCPEA, if the mayor were the chief executive officer, then the mayor should sit on the commission. On the other hand, if there were a city manager instead of a mayor, then the city manager should fill that slot.

The SCPEA also endorsed the view that, in a community where the mayor served as both the chief elected official and the chief executive officer, the mayor is in a position to become the leader in administrative policies and is therefore the "logical liaison officer between planning and administration and between planning and the public."[12] Consequently, the mayor "is the official who in turn is in the best position to give planning the necessary prestige with the public and the council."[13]

The SCPEA did not specify which administrative official of the municipality should sit on the commission; the official selected could vary upon the circumstances. In some cities, it could be the city engineer; in others it could be the chairman of the park board. What was important, noted the SCPEA's authors, was to ensure that either a substantial majority or two-thirds of the commission be composed of members who were not regular elected or appointed officials and who had no official functions other than those of planning. This position stemmed from the SCPEA's philosophy that the responsibility of preparing a plan was a long-range effort that would cover the incumbency of many successive elected officials. Therefore, the commission had to be predominately composed of lay officials "who should be free from the pressures of purely current problems."[14]

The SCPEA's authors maintained that elected officials and administrative officers, because of their preoccupation with pressing current problems, could not be expected to provide leadership in long-range thinking. Therefore, the chairman, "generally the outstanding personality of the commission," should be chosen from the citizen members and not the ex officio members.[15]

Similarly, the SCPEA's authors believed that having a member of the city council on the planning commission would be "highly desirable" to ensure that the city's chief legislative body "feel[s] that it has an integral part of the work of city planning."[16] Having council representation on the commission was all the more important because of a provision in the SCPEA that authorized the council to overrule the planning commission's disapproval of specific public improvements and street locations.

The SCPEA's authors viewed service on the planning commission to be a part-time effort. Thus, no compensation should be necessary, since "there is nothing in city planning experience hitherto to indicate that compensation is needed to obtain men [sic] of the necessary qualifications and enthusiasm."[17]

In addition, the SCPEA's authors resisted the imposition of professional qualifications for the planning commission members, stating that "capacity for leadership in city planning, rather than any particular type of technical or professional training, constitutes the best qualification."[18] Interestingly, the SCPEA's authors specifically did not recommend that the planning commission members be electors of the municipality. In fact, they categorically rejected it. The SCPEA's authors noted that often a person who is "well adapted" for service on a planning commission may reside in some nearby suburb "and has large business interests in the municipality in question."[19]

The SCPEA limited the planning commission's responsibilities to "make and adopt a master plan for the physical development of the municipality, including any areas outside of its boundaries which, in the commission's judgment, bear relationship to the planning of such municipality."[20] After the master plan was adopted, the commission gained review powers over streets, squares, parks, or other public ways, public buildings or structures, and public utilities, whether publicly or privately owned. The SCPEA gave the commission the power to promote public interest in the plan and publish and distribute it. The planning commission could also serve as the zoning commission (but not the board of zoning adjustment), which would formulate a zoning code for the community and advise the council on zoning matters. Once the planning commission had adopted a major street plan, it became responsible for drafting regulations governing land subdivision within its jurisdiction and subsequently reviewing subdivisions. It also could then formulate, for approval by the council, a plat of the area that it recommended to be reserved for future acquisition of public streets in order to prevent the construction of buildings in lands reserved for such streets.

There is a substantial body of literature critiquing the provisions of the SCPEA. Some concerns, relating to the preparation and adoption of plans and their relationship to implementation, are addressed later in this Chapter. Others, on organizational and compositional issues, are discussed below.

Exclusion of elected officials from plan-making. A feature of the SCPEA, as noted, was a planning commission dominated by lay appointed officials. Only the planning commission had the authority to develop and adopt the master plan (although this was to change with the advent of planning departments that reported to the chief executive officer), employ a planning staff, and contract with consultants. With the exception of its power to adopt the official map or plat of land to be reserved for future acquisition for public streets, the legislative body — though it had a representative on the planning commission — was largely shut out of the plan-making process. Elected officials were to refer planning matters to the commission for clear-headed, nonpartisan advice. Indeed, the planning commission could limit legislative options. For example, commission disapproval of the location, character, and extent of a proposed public improvement could be overridden only by a two-thirds vote of the council. These exclusions and limitations reflected the philosophy of the municipal reform movement in the United States of the 1920s, which generally distrusted elected officials. In the view of one historian, "The planning commission was . . . the guardian of the plan and the nonpolitical champion of the people's interest, from time to time putting thoughtless or rascally politicians on the spot."[21]

David W. Craig, the former city solicitor for the City of Pittsburgh, argued in a famous 1963 speech that the planning commission should be abolished and that its planning functions purposely transferred to the governing body because it was elected officials, rather than an independent board, that had the authority to carry out the plans. Elected officials, he said, could be sold on the idea of planning after they saw it demonstrated in independent hands and thus could be trusted to use planning techniques as instruments of executive and legislative decisionmaking. "[T]he history of the planning board as an institution," he said, "has shown it first to be an initiator, then a demonstrator, then a stimulator, and sometimes a gadfly, but the later years have seen its effectiveness grow pale beside the real effectiveness that can be demonstrated by executive and legislative officials willing to plan and implement those plans."[22]

Craig's brief for the abolition of planning boards was endorsed in a 1964 article in the Journal of the American Institute of Planners by Peter H. Nash and Dennis Durden.[23] Nash and Durden maintained that the original role of the independent planning board was heavily weighted toward the endorsement of the concept of planning itself. Later, they said, the planning board became the planner's "civic godparent . . . and the independent board became the guardian of 'the plans'."[24] They added:

As guardians and endorsers of the early plans, boards had almost no responsible opposition. They sponsored and endorsed a path of growth which sought to achieve fairly general goals by extinguishing blatant abuses. Alternative plans of development were rarely expressed. The choice was between the City Plan (which implied "progress" and a better life) or an unplanned method of growth (which the board was convinced led to civic damnation, abuses of resources and lost opportunities). Both the boards and the planner tended to present issues in black and white terms, which leading citizens could easily endorse.[25]

Nash and Durden believed that as planning became established in a community, there was less of a need for the endorsement function. Many of the activities carried out by the planning board were executive in nature (as examples they cited the opening or closing of a street) and could be assumed by a planning director who dealt directly with the legislature through the chief executive. "There is no reason," they wrote, "why professional planners cannot meet with legislators in special sessions to give them the same detailed data as were received by members of the planning board...."[26]

Nash and Durden thus favored replacing the independent planning boards with a wide range of independent task forces that would work directly with the professional planning staff in a strictly advisory capacity. Appointments would be made by the chief executive officer with the advice and consent of the legislative body. Each separate task force would tackle one planning problem in a sequence determined by the planning director and/or the chief executive officer, and produce alternate workable solutions. The final decision as to the alternative to be implemented would rest with the legislature.[27]

The advantages of this approach, they wrote, included an enlarged range of available citizen talent, especially by top professionals and key executives who would otherwise be reluctant to serve on a planning board because of time commitments, and a "built-in safeguard against fossilization" because the task forces would be created and disbanded as routine procedure when needs develop or their work is completed.

In the alternative, Nash and Durden wrote, the planning board could be reconstituted on the basis of expertise (rather than endorsement or representativeness or civic reputation). In this context, the board would become an advisor to the professional planner and the legislators, with a valuable service to contribute.

Elitism. The concept of the planning commission has its roots in the belief of elites, predominately composed of business leaders. Indeed, the commentary to the SCPEA says as much. Harvey Moskowitz, a planning consultant, undertook a study of planning boards in New Jersey in early 1981 and 1982. The study covered 393 of the state's 557 boards (70.6 percent of the state, with 2,063 individual responses) approximately 45 percent of all planning board members in New Jersey. The characteristics examined included age, sex, race, education, occupation, employer, family income, marital status, number of dependent children, and housing tenure. Moskowitz found that, based on the characteristics he analyzed, planning board members differ from the general population and are drawn from an elite strata of the population. Planning board members were predominately white, male, working in the professions or as managers, with median family incomes considerably above the median family income of the general population. The research also revealed that planning board members were long-term residents of their municipalities, married, owned their own homes, and had dependent children at home.[28] He observed that "the original concept [of the planning commission] was elitist by design in the hope that by having men of wealth and independence administer planning, it would be divorced from the then [in the 1910s and 1920s] prevailing politics of corruption."[29] In a subsequent article on the study, Moskowitz reflected:

In a sense, it is reassuring that planning board members are by and large a highly educated group, with traditional roots in the community and with the resources needed to spend the time and energies in order to undertake their critical work. The disturbing aspects, of course, are that many groups are not represented on boards. In almost 25 years of working with local planning boards, I can only recall, to the extent that I was aware, two renters on boards. (The survey confirmed that only 4.3 percent of all planning board members are renters.) Nonwhites continue to be significantly underrepresented, and while women have expanded their role in local planning, they still represent the exception on the board. By far the most obvious omission are lower income groups and blue collar workers. What the findings clearly suggest, at least from one perspective, is a need for appointing authorities to reach out to broaden the base to allow for a greater diversity of views on local planning boards.[30] [Emphasis supplied.]

A 1987 study by the American Planning Association drew similar conclusions about the composition of planning commissions. The national survey revealed, based on 4,380 questionnaires, that nearly eight out of ten commissioners were men; more than nine out of ten were white, although in large cities the ratio was closer to seven out of ten; and almost eight out of ten were 40 years old or older. Most planning commissioners were either businessmen or are engaged in real estate, education, engineering, or law. More than one out of ten were retired.[31]

(2) Alfred Bettman, Model Acts. Alfred Bettman, the Cincinnati attorney who served on the advisory committee that drafted the Standard City Planning and Zoning Enabling Acts, in 1935 drafted a model municipal planning enabling act that closely tracked the provisions of the SCPEA, including the independent planning commission as the official planning agency.[32] In a commentary to the act, Bettman recognized the possibility that, in the larger cities, a better approach than the independent planning commission (with authority over staff) might instead "be the creation of a planning department which, while independent of the departments which construct public works or determine or regulate public or private land uses, is a department headed, liked other departments, by a permanent paid official."[33] Bettman felt that a planning department accountable to the chief executive of the local government was worthy of consideration at the time, but that "there has been as yet little experience in the United States with that type of planning agency" to justify the wholehearted support for it in a model statute[34] The independent commission, he said, "may be needed transitionally, at least, for the establishment in any municipality of a tradition of using planning methods as an habitual part of municipal practice."[35]

(3) Robert A. Walker, The Planning Function in Urban Government. Political scientist Robert A. Walker extensively reviewed the operations of planning commissions and other planning agencies in 37 cities in the United States as part of his study, The Planning Function in Urban Government, published in 1941 and reissued in a second edition in 1950.[36] Walker concluded that the independent, unpaid citizen planning commission "is not satisfactorily executing the planning function at the present time."[37] Walker felt that the planning commission, whose members were drawn primarily from business executives and from those professions closely identified with construction (i.e., realtors, architects and engineers), generally lacked influence in their communities. "Commission members," he wrote, "have a limited social outlook and a wholly inadequate grasp of planning. Many of the original pioneers in the field have passed on, and later appointees frequently lack the basic interest and enthusiasm of those leaders."[38]

Walker felt that planning commission's autonomy and amateur character limited its effectiveness. "The watchdog role which many of the commissions appear to have adopted in lieu of a spirit of co-operation has been a source of friction and antagonism to public officials, interfering with the wholehearted acceptance of the planning function."[39]

The failure of many planning agencies to find an active role in urban government, said Walker, "is undoubtably due to the emphasis which has been placed upon guaranties of independence from political influence as distinguished from a more relevant emphasis upon usefulness and cooperation."[40] Instead, Walker favored attaching planning as a staff function of the executive officer of the local government where he believed it would be more effective.[41] The chief executive, he maintained, was assuming an increasing importance in city government, with greater responsibility for coordinating government functions.

(4) ALI Code. The American Law Institute's A Model Land Development Code authorized the local government to designate "the local governing body or any committee, commission, board or officer of the local government" as the "land development agency."[42] The Code's drafters reasoned that the local government "should have wide discretion in determining the agency best qualified to regulate land development under the conditions existing in the local community, and the land development agency so designated should determine its own internal organization and the extent to which it delegates power to other committees, boards or officers."[43] Consequently, the Code dispensed with describing a planning commission or board, a board of zoning appeals, or other adjudicative body. The Code also contained no standards that a local adjudicatory board or officer would utilize in reviewing appeals from determinations made in the administration of local development decisions. The public would be protected, the Code's drafters contended, not by any "rigid mold" for the internal structure of the land development agency, "but by requiring full disclosure to the public of whatever internal organization is established and designed to ensure fair treatment of all parties appearing before it."[44]

One state, Florida, has employed the ALI Code's approach with respect to the establishment of the local planning agency. Florida does not dictate the structure or organization of the local planning agency. Rather, the state statute provides:

The governing body of each local government, individually or in combination [with other local governments] . . . shall designate and by ordinance establish a "local planning agency," unless the agency is otherwise established by law. The governing body may designate itself as the local planning agency . . . The agency may be a local planning commission, the planning department of the local government, or other instrumentality, including a countywide planning entity established by special act or a council of local government officials . . .[45]

Once the governing body designates the local planning agency, it must notify the state land planning agency of the designation. The local planning agency is responsible for preparing the local comprehensive plan or plan amendments and for making recommendations regarding the adoption or amendment of the plan to the governing body.

Models for Organizing the Planning Function

The models that follow (Sections 7-101 to 7-107) describe the organizational structure and distribution of power for planning in local government, including organization structures for neighborhood planning (Sections 7-108 to -110). Like the ALI Code, they first require the local legislative body to designate a "local planning agency" in order to undertake planning. However, the selection and organizational form of the planning agency is the local government's decision; the philosophy of the model statute is that the local government should be given as much flexibility as possible in structuring the planning function. Section 7-102 directs the legislative body to designate either the local planning commission, a planning department, a community development department, or such other instrumentality other than itself as the local planning agency.[46] Creation of a local planning commission can be optional or mandatory and task forces may instead fulfill some of the advisory and citizen involvement functions.[47]

General Provisions

7-101 Definitions

As used in this Act, the following words and terms shall have the meanings specified herein:

"Adequate Public Facilities" mean capital improvements that have the capacity to serve development without decreasing levels of service below [locally or regionally] established minimums.

"Affordable Housing" means housing that has a sales price or rental amount that is within the means of a household that may occupy middle-, moderate-, or low-income housing. In the case of dwelling units for sale, housing that is affordable means housing in which mortgage, amortization, taxes, insurance, and condominium or association fees, if any, constitute no more than [28] percent of such gross annual household income for a household of the size which may occupy the unit in question. In the case of dwelling units for rent, housing that is affordable means housing for which the rent and utilities constitute no more than [30] percent of such gross annual household income for a household of the size which may occupy the unit in question.

"Agriculture" or "Agricultural Use" means the employment of land for the primary purpose of obtaining a profit in money by raising, harvesting, and selling crops, or feeding (including grazing), breeding, managing, selling, or producing livestock, poultry, fur-bearing animals or honeybees, or by dairying and the sale of dairy products, by any other horticultural, floricultural or viticultural use, by animal husbandry, or by any combination thereof. It also includes the current employment of land for the primary purpose of obtaining a profit by stabling or training equines including, but not limited to, providing riding lessons, training clinics and schooling shows.

"Agricultural Land" means land on which the land use of agriculture occurs.

"Appointing Authority" means the legislative body, the chief executive officer, or other elected or appointed official(s) of the local government with the power of appointment and removal of members of boards and of agency or department directors.

"Aquifer" means a subsurface geologic deposit capable of providing a sufficient quantity of potable water.

"Benchmark" means a performance-monitoring standard that allows a local government to periodically measure the extent to which the goals and policies of a local comprehensive plan are being achieved.

"Benchmarking System" means a process to regularly collect, monitor, and analyze data on the achievement of the goals and policies of a local comprehensive plan.

"Buildable Land" mean land within urban and urbanizable areas that is suitable, available, and necessary for residential, commercial, and industrial uses, and includes both vacant land and developed land that, in the opinion of the local planning agency, is likely to be redeveloped.

"Carrying Capacity Analysis" means an assessment of the ability of a natural system to absorb population growth as well as other physical development without significant degradation.

"Community Development Department" means a department of a local government whose functions may include, but shall not be limited to, planning and land development control, building and housing code enforcement, engineering, inspection, administration of federal and state grants, and other related activities, and whose director is accountable to the chief executive officer of the local government or to the legislative body.

"Comprehensive Plan, Local" means the adopted official statement of a legislative body of a local government that sets forth (in words, maps, illustrations, and/or tables) goals, policies, and guidelines intended to direct the present and future physical, social, and economic development that occurs within its planning jurisdiction and that includes a unified physical design for the public and private development of land and water.

— Note that the "local comprehensive plan" is intended to "direct" development, rather than to "guide" it. Under the approach used in the Legislative Guidebook, the plan, once adopted by the local government, assumes an important policy-setting role in controlling the timing, character, and location of development and in formulating implementation measures.

"Concurrent" means that adequate public facilities and/or transportation demand management strategies are in place when the impacts of development occur, or that a governmental agency and/or developer have made a financial commitment at the time of approval of the development permit so that the facilities or strategies are completed within [2] years of the impact of the development.[48]

"Corridor Preservation Restriction" means a deeded conservation restriction that conveys, for compensation, the right to wholly or partly prohibit development on reserved land for a limited time period stated in the restriction, not exceeding [10] years.

"Critical and Sensitive Area" means lands and/or water bodies that:

(a) provide protection to or habitat for natural resources, living and non-living; or

(b) are themselves natural resources;

requiring identification and protection from inappropriate or excessive development.

"Density" or "Net Density" means the result of:

(a) dividing the total number of dwelling units existing on a housing site by the net area in acres; or

(b) multiplying the net area in acres times 43,560 square feet per acre and then dividing the product by the required minimum number of square feet per dwelling unit.

"Density" or "Net Density" is expressed as dwelling units per acre or per net acre.[49]

"Element" means a discrete part of a local comprehensive plan that addresses a distinct topic, such as land use, transportation, housing, or a program of implementation.

"Floor Area" means the gross horizontal area of a floor of a building or structure measured from the exterior walls or from the center line of party walls. "Floor Area" includes the floor area of accessory buildings and structures.

"Floor Area Ratio" means the sum of floor areas of all floors of buildings or structures on a lot divided by the area of the lot.

"Forest" means a tract or tracts of contiguous trees or tree stands.

"Forest Land" means land on which the land use of forestry occurs.

"Forestry" or "Forest Operations" means the growing or harvesting of tree species used for commercial or related purposes.

"Geographic Information System" or "GIS" means computer software programs that allow the analysis of data or databases in which location or spatial distribution is an essential element, including, but not limited to land, air, water, and mineral resources, the distribution of plant, animal, and human populations, real property interests, zoning and other land development regulations, and political, jurisdictional, ownership, and other artificial divisions of geography.

"Intensity" means any ratio that assesses the relative level of activity of a land use, including, but not limited to, a floor area ratio, building coverage ratio, or impervious surface ratio.[50]

"Household" means the person or persons occupying a dwelling unit.

"Human Services" mean activities to help meet the health, welfare, employment, or other basic needs of society or groups in society, such as the poor, the elderly, the disabled, and youth.

"Land Development Regulations" mean any zoning, subdivision, impact fee, site plan, corridor map, floodplain or stormwater regulations, or other governmental controls that affect the use and intensity of land.

"Legislative Body" means the governing body of a local government with the power to adopt ordinances, regulations, and other documents that have the force of law.

"Level of Service" means an indicator of the extent or degree of service provided by, or proposed to be provided by, a public facility based on and related to the operational characteristics of the facility. "Level of service" shall indicate the capacity per unit of demand for each public facility.

"Local Planning Agency" means an agency designated or established as such by the legislative body, which may be constituted as a local planning commission, a community development department, a planning department, or some other instrumentality as having the powers of Section [7-103] of this act..

"Local Capital Budget" means the budget for local capital improvements adopted by a local legislative body by ordinance for each fiscal year. A local capital budget is also the first year of the local capital improvement program.

"Local Capital Improvement" means any building or infrastructure project that has a life expectancy of [10 or insert other number] or more years and is over $[ ,000] [or an amount established by the local government's legislative body by ordinance] that will be owned and operated by or on behalf of a local government and purchased and/or built in whole or in part, with federal, state, or local funds, including bonds, or in any combination thereof. A project may include the collective costs for construction, installation, project management or supervision, project planning, engineering or design, and the purchase of land or interests in land that are expended over one or more years.[51]

"Local Capital Improvement Program" or "CIP" means the [5]-year schedule of local capital improvements for a local government. The local capital improvement program is a proposed plan of expenditures and, except for the capital improvements included in local capital budget, shall not constitute an obligation or promise by the local government to undertake projects or appropriate funds for any project in years 2 to 5 of the schedule.

"Local Planning Commission" means a board of the local government consisting of such [elected and appointed or appointed] members whose functions include advisory or nontechnical aspects of planning and may also include such other powers and duties as may be assigned to it by the legislative body, pursuant to this act.

"Low-Income Housing" means housing that is affordable, according to the federal Department of Housing and Urban Development, for either home ownership or rental, and that is occupied, reserved, or marketed for occupancy by households with a gross household income that does not exceed 50 percent of the median gross household income for households of the same size within the housing region in which the housing is located.

" Middle-Income Housing" means housing that is affordable for either home ownership or rental, and that is occupied, reserved, or marketed for occupancy by households with a gross household income that is greater than 80 percent but does not exceed [specify a number within a range of 95 to 120] percent of the median gross household income for households of the same size within the housing region in which the housing is located.

— While the definitions of low-income and moderate-income housing are specific legal terms based on federal legislation and regulations, this term is intended to signify in a more general manner housing that is affordable to the great mass of working Americans. Therefore, the percentage may be amended by adopting legislatures to fit the state's circumstances.

"Moderate-Income Housing" means housing that is affordable, according to the federal Department of Housing and Urban Development, for either home ownership or rental, and that is occupied, reserved, or marketed for occupancy by households with a gross household income that is greater than 50 percent but does not exceed 80 percent of the median gross household income for households of the same size within the housing region in which the housing is located.

"Mass Transit" means a public common carrier transportation system for people and having established routes and fixed schedules or availability.

"Natural Resources" mean air, land, water, and indigenous plant and animal life of an area.

"Net Area" means the total area of a site for residential or nonresidential development, excluding street rights-of-way and other publicly-dedicated improvements such as parks, open space, and stormwater detention and retention facilities. "Net area" is expressed in either acres or square feet.

"New Fully Contained Community" means a development proposed for location outside of existing designated urban growth areas and that will be characterized by urban growth.

"Non-profit Conservation Organization" means an entity that holds, in fee simple or in easement, land for conservation purposes.

"Planning Department" means a department of a local government whose functions may include, but shall not be limited to, planning and land development control and whose director is accountable to the chief executive officer of the local government [or to the legislative body or some other body such as the local planning commission].

"Telecommunications" means any origination, creation, transmission, emission, storage-retrieval, or reception of signs, signals, writing, images, sounds, or intelligence of any nature, by wire, radio, television, optical, or other means.

"Telecommunications Facility" means any facility that transmits and/or receives signals by electromagnetic or optical means, including antennas, microwave dishes, horns, or similar types of equipment, towers or similar structures supporting such equipment, and equipment buildings.

"Transportation Demand Management Strategies" mean actions designed to change travel behavior to improve the performance of transportation facilities without increasing the capacity of such facilities. Examples may include, but shall not be limited to, the use of alternative modes, work-hour changes, ridesharing, vanpool programs, tolls, congestion or peak-hour pricing, changes in parking policies, telecommuting, trip-reduction ordinances, and other measures intended to reduce the number of drive-alone vehicle trips.

"Transportation Facilities" mean any capital improvement, including public transit, that moves or assists in the movement of people or goods, but excluding electricity, sewage, and water systems.

"Transportation Needs" mean estimates of the movement of people and goods that are typically based on projections of future travel demand.

"Transportation Performance Measures" mean criteria that allow the assessment of how well the mobility of people and goods is being accommodated by the transportation system and/or specific modes. Examples include, but shall not be limited to: vehicle miles traveled per capita, vehicle hours traveled per capita, average vehicle operating speed, average vehicle occupancy, and ratios of volume to capacity.[52]

"Transportation System Management Measures" mean techniques for increasing the efficiency, safety, capacity, or level of service of a transportation facility without increasing its size. Examples include, but shall not be limited to, traffic signal installation and improvements and traffic control devices, such as medians, parking removal, channelization, bus turn-outs, access management, ramp metering, and restriping of high occupancy vehicle lanes.

"Urban Growth" means development that makes intensive use of land for the location of buildings, other structures, and impermeable surfaces to such a degree as to be incompatible with the primary use of such land for the production of food, fiber, or other agricultural products, or the extraction of mineral resources and that, when allowed to spread over wide areas, typically requires urban services.

"Urban Growth Area" means an area delineated in an adopted [regional or county] comprehensive plan [in accordance with the goals, policies, and guidelines in the state land development plan, prepared pursuant to Section [4-204]] within which urban development is encouraged by delineation of the area, compatible future land-use designations, and implementing actions in a local comprehensive plan, and outside of which urban development is discouraged. An urban growth area shall allow existing or proposed land uses at minimum densities and intensities sufficient to permit urban growth that is projected for the [region or county] for the succeeding [20]-year period and existing or proposed urban services to adequately support that urban growth.

"Urban Growth Boundary" means a perimeter drawn around an urban growth area.

"Urban Services" mean those activities, facilities, and utilities that are provided to urban-level densities and intensities to meet public demand or need and that, together, are not normally associated with nonurban areas. Urban services may include, but are not limited to: the provision of sanitary sewers and the collection and treatment of sewage; the provision of water lines and the pumping and treatment of water; fire protection; parks, recreation, and open space; streets and roads; mass transit; and other activities, facilities, and utilities of an urban nature, such as stormwater management or flood control.

"Vision" means the overall image in words that describes what the local government wants to be and how it wants to look at some point in the future and that has been formulated with the involvement of citizens.

"Visioning" means the process by which a local government, with the involvement of citizens, characterizes the future it wants, and plans how to achieve it.

"Vision Statement" means the formal expression of its vision that depicts in words and images what the local government is striving to become and that serves as the starting point for the creation and implementation of the local comprehensive plan.

"Watershed" means the land area(s) that contribute surface runoff or drainage to a fresh or coastal water system or body.

"Wellhead Protection Area" means the land area(s) that provide recharge to a pumping public or private drinking water supply well.

7-102 Establishment of Local Planning Agency

(1) The legislative body of each local government shall designate and establish by ordinance a "local planning agency," unless the agency is otherwise established by law. The legislative body shall designate the local planning commission, a planning department, a community development department, or such other instrumentality other than itself as the local planning agency. The legislative body shall designate by ordinance those functions, powers, and duties that shall be performed by such local planning agency.

— The local planning agency has both line and staff functions in that it is charged with carrying out routine activities as well as coordinating the efforts of other local government departments. In contrast, the local planning commission, as described in Sections 7-105 and 7-106, is an advisory body with little or no final decision-making authority and no staff for which it is responsible. As paragraph (1) above provides, it is possible that the local planning commission can be designated as the local planning agency or that some of the powers of the local planning agency — especially those relating to certain types of development review (e.g., review of site plans and subdivisions) where public comment is thought to be desirable — can be assigned to the commission.

(2) For the administration of the local planning agency, the appointing authority may appoint a director of planning who shall be, in the opinion of the appointing authority, qualified by education and experience in planning for the duties of the position. The ordinance establishing the local planning agency, as provided for in paragraph (1) above, shall include minimum education and experience requirements for the director of planning. The director of planning shall be in charge of the administration of the agency and shall exercise the powers and be subject to the duties that are granted or required of a local planning agency by this Act.

(3) The solicitor for the local government, an attorney appointed by the solicitor, or an attorney appointed by the legislative body or the chief executive officer, shall serve the local planning agency as a legal advisor.

(4) The legislative body shall appropriate funds for salaries and expenses necessary in the conduct of the work of the local planning agency and the local planning commission, if one exists, and shall also establish, with the advice of the director of planning, a schedule of application and related administrative fees to be charged by the local government for development permits.

(5) To accomplish the purposes and activities authorized by this Act, the local planning agency, with the approval of the legislative body and in accord with the fiscal practices thereof, may expend all sums so appropriated and other sums made available for use from fees, gifts, state or federal grants, state or federal loans, and other sources, and may enter into agreements with state agencies, regional planning agencies, local governments, other units of government, planning consultants, engineers, architects, landscape architects, land surveyors, attorneys, and other persons or organizations for the provision of planning and other services.

(6) Within [60] days of the enactment of an ordinance designating and establishing of a local planning agency or any amendments thereof, the legislative body shall notify the [state planning agency] in writing of such designation and shall provide the [state planning agency] with a copy of the ordinance. The state planning agency shall maintain a directory of local planning agencies within the state and shall revise it annually.

7-103 Powers and Duties of Local Planning Agency

(1) The local planning agency shall have such powers and duties, as described in paragraph (2) below, as may be necessary to enable it to fulfill its functions, promote local planning, and carry out the purposes of this Act. The powers and duties of the agency shall be based on the grant of authority contained in the ordinance enacted pursuant to Section [7-102]. above. The assignment of such powers and duties may be varied by the legislative body, depending on factors that include, but are not limited to:

(a) the size of the local government;

(b) the composition and organization of the agency;

(c) the size of the agency's staff and other available resources from the local government;

(d) the relationship between the planning agency, [the local planning commission,] and the legislative body; and

(e) the types of land development regulations authorized by law.

(2) The powers and duties of a local planning agency may include, but shall not be limited to, the following:

(a) prepare, review, maintain, implement, monitor, and periodically update the local comprehensive plan, and conduct ongoing related research, data collection, mapping, and analysis;

— Plan preparation, whether or not it is mandated by the state, may be overseen by the planning commission, by a task force of the planning commission, or by an advisory group that is appointed by the legislative body. For local planning agency responsibilities regarding comprehensive planning, see Sections 7-201 and 7-202.

(b) prepare, review, maintain, monitor, and periodically update and recommend to the [local planning commission and] legislative body land development regulations and the zoning map, and conduct ongoing related research, data collection, mapping, and analysis;

(c) prepare, review, maintain, administer, monitor, and periodically update and recommend to the [local planning commission and] legislative body special district and small area plans, including neighborhood plans, transportation corridor plans, central business district plans, and transit-oriented development plans, and conduct ongoing related research, data collection, mapping, and analysis;

(d) present any local comprehensive plan, land development regulations, or special district or small area plans for consideration by the [local planning commission and the] legislative body and make recommendations to the [local planning commission and the] legislative body on proposed amendments to such plans or regulations;

(e) prepare, or assist in the preparation of, the capital improvement program and annual capital budget for the local government;

(f) in the performance of its functions and with the consent of the owner, enter upon any land to make examinations and surveys and place and maintain necessary monuments and markers thereon;

(g) provide support to boards, commissions, committees, departments, and advisory task forces of the local government as necessary and assist with a variety of planning-related projects that may be conducted by any other local government department, such as: building, housing, engineering, and environmental codes; emergency management; environmental studies; public land acquisition and sales; public safety; urban renewal projects; human and social services; renewable energy sources; and capital projects;

(h) administer land development regulations, including: providing advice and recommendations to officers and bodies that make land-use decisions; and drafting reports and recommendations to the local planning commission, the legislative body, and/or the mayor or chief executive officer of the local government. Administration of land development regulations may include, but shall not be limited to, reviewing and approving development permit applications, reviewing [and approving or approving with conditions, on behalf of the local government] proposed land subdivisions, site plans, and planned unit developments, and reviewing proposed text and zoning map amendments as assigned to the local planning agency by the legislative body;

— The bracketed language in subparagraph (h) gives the local planning agency the authority to approve, as well as review, proposed land subdivisions, site plans, and planned unit developments without additional approval by the legislative body or local planning commission, where one is established. In some communities, the legislative body may have the final say on such developments. In others, the planning commission itself may function in an administrative capacity and have review and final approval authority. See the discussion of this issue in the commentary to Section 7-106(2)(i) below with respect to the powers and duties of a local planning commission.

(i) inform and educate the public on issues relating to planning and development;

(j) analyze, project, and distribute relevant data to other local government departments concerning planning and development programs;

(k) maintain a geographic information system [that may also include a land market monitoring system pursuant to Section [7-204.1]];

(l) serve as the liaison for the local government to other national, state, regional, and local planning agencies;

(m) participate and collaborate with other government units in national, interstate, regional, or long-range studies and other joint plans;

(n) authorize or provide training and continuing education for its employees;

(o) provide orientation training and continuing education for members of the local planning commission, if one exists, pursuant to Section [7-105(8)]

(p) prepare an annual report pursuant to Section [7-107]; and

(q) perform such other duties as may be assigned or referred to it from time to time by the legislative body, the mayor, the chief executive officer of the local government, the local planning commission, or by general or special law.

(3) All studies, plans, reports, and related materials prepared by the local planning agency shall be public records, unless specifically exempted by [cite to state public records statute].

7-104 Rule-Making Authority

(1) The local planning agency shall have the authority to adopt procedural rules concerning any matter within its jurisdiction, provided, however, that no procedural rule shall be adopted until the agency has held a public hearing on the proposed rule.[53]

(2) No procedural rule shall become effective until it has been approved by the legislative body of the local government.

(3) All procedural rules adopted by the local planning agency shall be public records.

— The local planning agency's rule-making authority is limited to the formulation of procedural rules in order to avoid conflicts with the local legislative body over the content of matters that would otherwise be covered by substantive rules. A substantive rule is the administrative equivalent of a statute, compelling compliance with its terms on the part of those within the agency scope of influence. Such rules are issued pursuant to statutory authority and implement the statute; they create law just as the statute itself does, by changing existing rights and obligations.[54] By contrast, procedural rules are rules that are necessary and proper for an agency to carry out its tasks, such as the rules for the form of notices to the public or application forms for development permission. Because all matters that are substantive would be found in development regulations, such as zoning and subdivision codes (which would be adopted by the local government's legislative body), it is therefore unnecessary to give the local planning agency substantive rule-making authority.

Organizational Structure


Commentary: Local Planning Commission

Under Section 7-105, a local planning commission, where it is established, may assume one of several organizational forms, the composition of which can differ depending on the degree of diversity of occupation and viewpoints that are desired by the state legislature. The alternatives that are posed for a planning commission's composition in Section 7-105 are intended to respond to the criticism, discussed above, that many commissions are not representative of broader interests in the community (such as renters, low-and-moderate income persons, and local businesspersons who may live elsewhere). While the establishment of local planning commission is optional, it is still the preference of the Legislative Guidebook that the statute require that one be created (see Section 7-105(1) below). Local planning commissions have made a valuable contribution to local governments in the United States during this century. They can serve in a lay advisory capacity for planning that can compliment and inform the efforts of the legislative body and they can act as the internal advocate and developer of external constituencies in local government for long-range thinking and innovative approaches. As Harvey Moskowitz, a New Jersey planning consultant, has observed, the local planning commission can also provide

a buffer between the elected official and the electorate. Controversial issues can be discussed in front of an appointed board without fear of offending voters. It [the commission] allows the elected officials to "see which way the wind is blowing." In addition it provides support for the elected official against pressure groups. It is not uncommon for governing bodies to use the recommendation of the planning board as the basis for or against certain legislation or projects. "We would have liked to build the playground in the south ward, but the planning board recommended the north side instead."

. . . [It was Moskowitz's experience that] planning board members, even in the highly technical aspects of the field such as subdivision or site plan review, do provide valuable insight from their own detailed knowledge of where development takes place, and indeed, with those planning board members who have managed to acquire some of the technical knowledge, can provide other perspectives that the professional sometimes overlooks.[55]

The local planning commission, he writes, may also provide a buffer to the members of the planning staff, allowing them to focus on long-term projects and goals and to remain "relatively immune from short-term emergencies which in fact do not prove to be emergencies and given sufficient time eventually disappear."[56]

Section 7-105 also mandates an open selection process for planning commission members and requires the local planning agency to conduct both initial and ongoing training and continuing education programs for commissioners. The programs are to provide members with an understanding of the local government's plans, the commission's authority and responsibility under state statutes and local laws, parliamentary procedures, the development process, the relationship of local planning activities to other governmental units, and current issues in planning and land development.


7-105 Establishment of Local Planning Commission

(1) The legislative body of each local government [shall or may] establish a local planning commission consisting of [insert number, such as: not less than 5; 5; 7; 9; etc.] members.

(2) The composition of the local planning commission shall be as follows:

— The following language provides three options for the composition of a planning commission: (1) a commission consisting of all appointed citizen members; (2) a commission consisting of appointed members and elected officials; (3) a commission consisting of appointed members, the local government's administrative officials, and elected officials.

Within Alternative 1B, there is language to ensure the diversity of viewpoints on the appointed commission by authorizing membership of "constituency representatives," who may or may not be residents of the local government.[57] As commentary to the Standard City Planning Enabling Act, discussed above, noted, persons who own or operate businesses within the local government (as well as persons who are employees of such businesses) may have knowledge or leadership skills that would benefit the local government and consequently the SCPEA did not require planning commission members to be electors.[58] This is especially true in small developing suburban communities with a commercial/industrial employment base. In addition, according to surveys conducted by Planning Consultant Harvey Moskowitz, also discussed above, persons representing certain interests, such as renters (who are, it should be noted, also residents of the local government) and lower-paid blue-collar workers, may go unrepresented on the local planning commission. Finally, a planning commission may also need to have a "regional" perspective for purposes of coordination. Just as regional planning commissions have representation from member local governments, the model legislation below, in both Alternatives 1B and 3, requires that one of the commission members be a member or professional employee of the regional or county planning commission, who need not be a resident of the local government.

Alternative 1A — All appointed citizens; no constituency representatives.

[insert number] at-large members who are bona fide residents of the local government.

[or]

Alternative 1B — All appointed citizens; constituencies represented

(a) [insert number] at-large members who are bona fide residents of the local government, at least [1] of whom lives [or will represent the viewpoint of those who live] in rental, affordable, or multifamily housing;

— The bracketed language above is targeted to those small communities where the number of persons who live in rental, affordable, or multifamily housing is limited and where residents may not be willing to volunteer.

(b) [insert number] constituency representatives who need not be residents of the local government, but who shall represent the following interests:

1. developer or builder of residential or nonresidential development who conducts business within the local government; and/or

2. owner, operator, or employee of a business or commercial activity within the local government[. or , and]

[(c) [1] member or professional employee of a [regional planning agency] or county planning commission, who need not be a bona fide resident of the local government.][59]

Alternative 2 — Appointed members and elected officials

(a) the mayor or chief executive officer[, or his or her designee];

(b) [insert number] member[s] of the legislative body selected by a simple majority vote of all members present where there is a properly constituted quorum; and

(c) [insert number] at-large members, who are bona fide residents of the local government.

Alternative 3 — Appointed members, administrative officials, and elected officials

(a) the mayor or chief executive officer[, or his or her designee];

(b) [insert number] member[s] of the legislative body selected by a simple majority vote of all members present where there is a properly constituted quorum;

(c) [insert number] administrative official[s] of the local government selected by the mayor or chief executive officer;

[(d) [1] member or professional employee of a [regional planning agency] or county planning commission, who need not be a bona fide resident of the local government;] and

(e) [insert number] at-large member[s], who are bona fide residents of the local government.

(3) If any at-large member of a local planning commission who is subject to the residency requirement of paragraph (2) above, subsequently ceases to reside in such local government, his or her membership shall automatically terminate.

(4) Members of a local planning commission may hold any other public office [, unless prohibited by a municipal charter].

[or]

(4) At-large members and constituency representative members of a local planning commission shall not hold any other public office[, other than membership on the board of zoning appeals, Land-Use Review Board, or other boards such as an historic and architectural preservation or design review commission for which membership would not be an incompatible office].

— Nationally, state enabling acts impose diverse membership restrictions and do not disclose a consistent policy or pattern[60] and thus such limitations may simply be a matter of taste or philosophy. An early model planning commission act by Attorneys Edward M. Bassett and Frank B. Williams did not impose a limitation on membership.[61] In contrast, a model by Attorney Alfred Bettman stated that "none of the appointive members [of the municipal planning commission] shall hold any other public office or position in the municipality, except that one of them may be a member of the board of zoning appeals," but also provided that the chief executive and a member of the legislative authority should also serve on the commission.[62]

— If it is desired that the local government be given the authority to appoint members who serve as alternates, then the following language based on N.J.S.A. 40:55D-23.1 (1997), either in connection with a subparagraph (the case of Alternative 1A) or as its own subparagraph (the case in Alternatives 1B, 2, and 3) may be added:

[(X) The legislative body may, by ordinance, provide for the appointment to the local planning commission of not more than 2 alternate members. Alternate members shall be at-large members, who are bona fide residents of the local government. Alternate members shall be designated at the time of appointment as "Alternate No. 1" and "Alternate No. 2." The terms of the alternate members shall be for 2 years, provided, however, that the terms of the alternate members first appointed are staggered, so that the initial term of Alternate No. 1 is 2 years and the initial term of Alternate No. 2 is 1 year. A vacancy occurring otherwise than by expiration of term shall be filled by the appointing authority for the unexpired term only. Alternate members may participate in discussions of the proceedings, but shall not vote except in the absence or disqualification of a regular member. A vote shall not be delayed in order that a regular member may vote instead of an alternate member. In the event that a choice is to be as to which alternate member is to vote, Alternate No. 1 shall vote, except when unable due to absence or disqualification. Alternate members shall be otherwise subject to all other requirements of this [Section or Act].]

(5) All members of the local planning commission shall have voting privileges.

(6) Public solicitations for applications for membership for all positions on the local planning commission other than those of [insert applicable categories (e.g., the mayor, administrative officials, members of the legislative body, members or professional employees of the regional planning agency, or members or professional employees of the county planning commission)] shall be advertised in a newspaper of general circulation in the local government and posted in a publicly accessible area in the offices of the mayor or chief executive officer of the local government, the personnel or human resources office, if one exists, and in the offices of the local planning agency. The application period shall remain open for at least [2] weeks after the date of publication. The appointing authority shall only make appointments from such applications, without respect to the political affiliations of the applicants.

(7) In local governments having an elected mayor or chief administrative officer, members of the local planning commission shall be appointed by the mayor or chief administrative officer [with the consent of the legislative body of the local government]. In other local governments, the members shall be appointed by the legislative body.

(8) Prior to assuming responsibilities on a local planning commission, all newly appointed members shall participate in an orientation training program designed by the local planning agency. All other planning commission members shall be required to fulfill a planning commission continuing education requirement on an annual basis, as designed by the local planning agency.

(a) The purpose of the orientation training and continuing education programs shall include, but not be limited, to providing planning commission members with an understanding of the local government's plans, the commission's authority and responsibility under state statutes and local laws, parliamentary procedures, the development process, the relationship of local planning activities to other governmental units, and current issues in planning and land development.

(b) In developing the orientation training and continuing education programs, the local planning agency may use available information and materials from the [state planning agency], the [regional planning agency], and any state or national associations of professional planners or planning officials, of local governments, and of homebuilders and developers, as well as the local government's own plans and land development regulations and applicable state laws and administrative rules and related materials.

— This language requires the local planning agency to develop an orientation training and continuing education program for planning commission members.[63] The purpose of the program is to familiarize members with the commission's procedures, applicable laws of the local government, state laws and administrative rules, plans, and related technical aspects of planning. This will ensure that each commission member understands the broad policy and regulatory context in which the commission functions as well as follows appropriate procedures in conducting hearings and meetings and in making decisions. State and regional planning agencies and professional associations, such as the American Planning Association, university-based institutes of government/urban affairs centers, and state planning official associations typically offer such training. In addition, training materials may be available on video and audio cassettes.

(9) Members of a local planning commission holding office on the effective date of this Act shall continue to serve for the remainder of their respective terms. In the initial appointments under this Act, a majority of the total membership of the commission shall be appointed for [2] years and the remaining members for [4 or 5 or 6] years. Thereafter, members shall be appointed for a term of [3 or 4 or 5 or 6] years. Members may be eligible for an unlimited number of terms [, unless prohibited by municipal charter].

[add, if relevant to elected official or appointed administrative officials — See Alternatives (2) and (3) in Paragraph (2) above)]

The term of a member who is an elected official shall correspond to his or her respective official tenure. The term of an administrative official selected by the mayor or chief executive officer shall terminate either at the will of, or with the tenure of, the mayor or the chief executive officer selecting him or her.

(10) Al1 vacancies on the local planning commission shall be filled in the same manner as the initial appointment. Vacancies on the commission shall be filled within [30 or 45] days by the appropriate appointing authority. If the authority fails to act within that time, the appointing authority may authorize the planning commission to fill the vacancy.

(11) Any member of a local planning commission may be removed by the appropriate appointing authority, after a public hearing, for inefficiency, neglect of duty, malfeasance in office, or undisclosed conflict of interest. The appropriate appointing authority shall file a written statement describing the reasons for such removal.

(12) The compensation and expenses of the local planning commission and its staff shall be paid as directed by the legislative body. Members may also be reimbursed by the legislative body for any expenses incurred in the performance of their duties.

[or]

(12) All members of the local planning commission shall serve as such without compensation. However, members may be reimbursed by the legislative body for any expenses incurred in the performance of their duties.

— This model takes the view, also incorporated into the SCPEA,[64] that compensation for a planning commission is inappropriate because of the potential for abuse (e.g., planning commission members, paid on a per meeting basis, schedule additional meetings beyond periodic business meetings) and because of the belief that service on the commission should remain voluntary. As Alfred Bettman wrote, "This form assumes the unpaid citizen, who has his own vocation, will be able and willing to give the necessary amount of time, to acquire a quantity of special knowledge, and to exercise a degree of independence of the regular administrative and legislative officials," adding that this approach, especially in a large city "may not be generally attainable in real life."[65] However, where service on a planning commission requires attendance at weekly meeting that extend far into the day or evening, in order to dispose of routine business (so much so that commission members may neglect their full-time vocation), then compensation, on a limited basis, may need to be considered. Alternately, if they become burdensome, the planning commission's responsibilities in reviewing individual developments may be reduced or eliminated and assigned to a professional planning staff.

(13) The local planning commission shall elect its chairperson and secretary from among its at-large [and constituency representative] members and shall create and fill such other of its offices as it may determine. [However, no elected official or administrative officer of the local government may serve as chairperson.] The term of office of the chairperson shall be [1 or 2] year[s], with eligibility for reelection.[66]

— The bracketed second sentence follows the SCPEA's practice of selecting the chair from the appointed citizen members.[67] If it is desired that elected or administrative officials should serve as chairperson, then this language may be omitted. Alternately, this section can be redrafted to authorize the mayor, chief executive officer, or legislative body to appoint the chairperson and secretary as well as other officers.

(14) The local planning commission shall hold at least [1] regular meeting in each [month or quarter of each calendar year]. or [The local planning commission shall conduct regular meetings as it deems necessary for the transaction of its business, but there shall be at least [4 or 6 or 12] meetings annually.] The schedule for regular meetings shall be expressed in the procedural rules of the commission. Special meetings shall be held at the call of the chairperson who shall give written [and oral] notice to all members at least [7] days prior to the meeting, which notice shall contain the date, time, and place of the meeting, and the subject(s) which shall be discussed. The planning commission shall also hold at least [1] formal joint business meeting with the legislative body on an annual basis.

(15) A simple majority of the total membership of the local planning commission shall constitute a quorum. A simple majority vote of all members present where there is a properly constituted quorum shall be necessary to transact any business of the commission[, except that a vote of a simple majority of the total membership shall be necessary for a recommendation to the legislative body regarding the adoption or amendment of the local comprehensive plan [or any other plan]].

— Note: if comprehensive plan is not mandated, then omit last clause in brackets.

(16) No member of a local planning commission shall appear for or represent any other person, firm, corporation, or entity in any matter pending before the planning commission [or zoning board of appeals or historic preservation commission on which he or she is a member]. In addition, no member of the planning commission shall participate in the hearing or decision of the commission upon any matter in which he or she is directly or indirectly interested in a personal or financial sense. Such member shall disclose the nature of the interest, shall disqualify himself or herself from voting on the question, and he or she shall not be counted for the purpose of a quorum. In the event of such disqualification, such fact shall be entered in the minutes and records of the commission.

— The Standard Zoning Enabling Act and the Standard City Planning Enabling Act did not address the problem of conflicts of interest. A number of states have enacted legislation for this purpose.[68] Others rely on general governmental ethics and conflict of interest statutes that provide a basis for regulating various types of conflicts by public officials. At least 19 states have statutes that prohibit participation by local officials in decisions in which they or a particular associate have a financial interest.[69] While beyond the scope of the Legislative Guidebook, an alternative approach is to require elected and appointed officials to complete an annual disclosure form. Such an approach would require general legislation, not just legislation that pertains to officials involved in planning and land development control.

(17) The local planning commission shall adopt procedural rules for the transaction of its business and shall keep minutes and records of all proceedings, including regulations, transactions, findings, and determinations, and the number of votes for and against each question. However, no procedural rule shall become effective until adopted by the legislative body, subsequent to a public hearing. The minutes and records shall also indicate whether any member is absent or disqualified from voting. The minutes and records shall, immediately after adoption, be filed in the office of the commission. If the commission has no office, such records shall be filed in the office of the clerk of the legislative body. A transcript of the entire proceedings of matters before a planning commission, including any findings of fact, votes, and supporting documents shall be provided at actual cost to any requesting party. The transcript and supporting documents shall constitute the official record of the planning commission.

(18) All members of a local planning commission shall, before entering upon their duties, qualify by taking the oath of office prescribed by [cite to applicable section of state constitution or local charter] before any judge, notary public, clerk of a court, or justice of the peace within the district or county in which they reside.

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