Growing Smart Legislative Guidebook

Chapter 7 (part 4): Local Planning

7-206.1 Telecommunications Component

(1) A telecommunications component [may or shall] be included in the community facilities element of the local comprehensive plan. Two or more local governments may enter into an agreement to jointly prepare such a component pursuant to Section [7-202(11)] above.

(2) The purposes of the telecommunications component are to:

(a) coordinate local telecommunications initiatives through the state telecommunications and information technology plan prepared pursuant to Section [4-206.1], if such a plan has been adopted, and other state programs;

(b) assess short- and long-term telecommunications needs, especially regarding infrastructure and service technology, for the public and private sectors;

(c) determine the location and capacity of existing telecommunications infrastructure and services within or potentially affecting the local government;

(d) define the role of the local government in encouraging competition within the marketplace;

(e) encourage investment in the most advanced telecommunications technology while protecting the public health, safety, and general welfare, including aesthetics and community character;

(f) ensure that investments in telecommunications infrastructure are provided in a timely, orderly, and efficient manner that will minimize public inconvenience and disruption to expansion and new construction of facilities; and

(g) establish a framework for providing reasonable access to public rights-of-way and public structures and ensuring that the local government receives fair and reasonable compensation for use of that access.

(3) In preparing the telecommunications component, the local planning agency shall undertake supporting studies. In undertaking these studies, the local planning agency may use studies conducted by others, such as those conducted in the preparation of the state telecommunications and information technology plan or any regional plan. The supporting studies may include, but shall not be limited to:

(a) surveys and assessments of future telecommunications needs on a local and/or regional basis as they relate to businesses, local government (including the needs of individual departments of the local government), education, health services, and economic development;

(b) an assessment of the existing private telecommunications system on a local and regional basis, including a determination of infrastructure location, rate structures, and provision of services;

(c) an assessment of federal telecommunications statutes and regulations to evaluate their impact on the local government;

(d) an inventory of existing telecommunications facilities, public structures, co-location sites, and other areas that could serve as preferred locations for new telecommunications facilities, and a visual impact assessment of these sites and facilities should they be selected as preferred locations;

(e) an assessment of the ordinances, regulations, and permitting procedures of the local government that affect private telecommunications firms and their effects on the cost of doing business as well as on investment in infrastructure, technological advancement, and the provision of universal service; and

(f) an assessment of the ability of private telecommunication firms to cooperate with each other and with the local government to coordinate construction to ensure minimum public inconvenience or disruption.

(4) The telecommunications component shall consist of summaries of the relevant studies described by paragraph (3) above as well as a statement of goals, policies, and guidelines by which the local government may improve telecommunications infrastructure and services in order to address the purposes listed in paragraph (2) above. The component shall include a summary map drawn at the same scale as the future land-use plan map required by Section [7-204(6)(c)] above that shows existing telecommunications facilities, public rights-of-way, and public structures that may be used as locations for new telecommunications facilities, and other areas within the jurisdiction of the local government that represent preferred locations for such facilities.

(5) The telecommunications component shall contain actions to be incorporated into the long-range program of implementation as required by Section [7-211] below. These actions may include, but shall not be limited to, proposals for:

(a) construction or installation of, or improvements to, the telecommunications facilities and computer networks of the local government;

(b) changes to zoning ordinances to ensure an adequate number of sites for telecommunications facilities;

(c) ordinances that establish fees, allow the use of public rights-of-way and public structures for telecommunications facilities, ensure the coordination of construction in such rights-of-way in order to minimize public inconvenience and disruption, and provide for removal of such facilities in the event of obsolescence or abandonment;

(d) ordinances containing design criteria to promote public safety, maintain community character, and minimize the impact of telecommunications facilities on adjacent land uses;

(e) public information programs to market the telecommunications potential of the local government and/or region for economic development purposes;

(f) agreements between telecommunications firms and the local government for use of telecommunication facilities by police, fire, and/or emergency service personnel; and

(g) changes to local ordinances, regulations, and procedures affecting telecommunications in order to enhance investment in infrastructure, technological advancement, and the provision of expanded access to all citizens.


Commentary: Housing Element

Language authorizing housing elements as part of a local comprehensive plan appears in the planning statutes of 25 states (see the research note on state planning statutes at the end of this Chapter and Table 7-5). The purpose of such an element is to assess local housing conditions and project future housing needs, especially for affordable housing, in order to assure that a wide variety of housing is available for a community's existing residents (who may be underserved by the choices available to them, such as the need for rental units for large families and the disabled, or who may be paying a disproportionate amount of their income in rent) as well as those who might reside there in the future.

As noted in Chapter 4, the presence of an adequate supply of housing for all income groups is also important to support economic development.[195] When they locate or expand, businesses typically look to the supply of housing for potential workers. Having a sufficient supply of housing in a community for a broad variety of income groups is a strategic advantage for a local government. Moreover, the existing housing stock of a community is a resource. The housing element will typically identify measures to maintain a good existing inventory of housing stock through rehabilitation, code enforcement, technical assistance to homeowners, creation of loan and grant programs, and other measures that will ensure that a local government conserves what it has.

State statutes authorizing or requiring housing elements vary in detail. Idaho, for example, requires housing as a "component" of a local comprehensive plan, describing it as:

[a]n analysis of housing conditions and needs; plans for the improvement of housing standards; and plans for the provision of safe, sanitary, and adequate housing, including the provision for low-cost conventional housing, the siting of manufactured housing and mobile homes in subdivisions and parks and on individual lots which are sufficient to maintain a competitive market for each of those housing types and to address the needs of the community.[196]

Vermont's housing element language calls for municipalities to:

include a recommended program for addressing low and moderate income persons' housing needs as identified by the regional planning commission pursuant to section 4348a(a)(9) of this title. The program may include provisions for conditional permitted accessory apartments within or attached to single family residences which provide affordable housing in close proximity to cost-effective care and supervision for relatives or disabled or elderly persons.[197]

Rhode Island states that the housing element:

[s]hall consist of identification and analysis of existing and forecasted housing needs and objectives, including, but not limited to, programs for the preservation of federally insured or assisted housing, [and] improvement and development of housing for all citizens. The housing element shall enumerate local policies and implementation techniques to provide a balance of housing choices, recognizing local, regional, and statewide needs for all income levels and for all age groups, including, but not limited to, the affordability of housing and the preservation of federally insured or assisted housing. The element shall identify specific programs and policies for inclusion in the implementation program necessary to accomplish this purpose.[198]

Connecticut's description of a "plan of development" for a municipality includes a requirement that:

[s]uch plan shall make provision for the development of housing opportunities for multifamily dwellings, consistent with soil types, terrain, and infrastructure capacity, for all residents of the municipality and the planning region in which the municipality is located, as designated by the secretary of the office of policy and management under section 16a-4a. Such plan shall also promote housing choice and economic diversity in housing, including housing for both low and moderate income households, and encourage the development of housing which will meet the housing needs identified in the [state] housing plan prepared pursuant to section 8-37 and in the housing component of the state plan of conservation and development prepared pursuant to section 16a-26.[199]

Some states, like Florida, Georgia, Oregon, and Washington, detail general language in a state statute through administrative rules.[200] For example, Washington's statute describes the mandatory housing element as one:

ensuring the vitality and character of established residential neighborhoods that: (a) includes an inventory and analysis of existing and projected housing needs; (b) includes a statement of goals, policies, objectives and mandatory provisions for the preservation, improvement, and development of housing, including single-family residences (c) identifies sufficient land for housing, including, but not limited to, government-assisted housing, housing for low-income families, manufactured housing, multifamily housing, and group homes and foster care facilities; and (d) makes adequate provisions for existing and projected needs of all economic segments of the community.[201]

The Washington Administrative Code repeats these same provisions and then includes a series of recommended steps and analytical approaches for the housing element. It suggests, for example, that a "strategy for preserving, improving, and developing housing" to meet the needs of all economic segments of the community should include:

(i) Conservation of the range of housing choices to be encouraged, including but not limited to, multifamily housing, mixed uses, manufactured homes, accessory living units, and detached homes.
(ii) Consideration of various lot sizes and densities, and of clustering and other design configurations.
(iii) Identification of sufficient appropriately zoned land to accommodate the identified housing needs over the planning period.
(iv) Evaluation of the capacity of local public and private entities and the availability of financing to produce housing to meet the identified need.[202]

Chapters 4 (State Planning) and 6 (Regional Planning) of the Legislative Guidebook include a variety of state and regional models for housing planning.[205] In addition, Chapter 4 contains a lengthy research note on state planning approaches to promote affordable housing that describes, among other programs, local housing planning requirements in both California and New Jersey.
The model statutes below provide two alternatives. Alternative 1 is general language intended to be consistent with the state housing plan description in Section 4-207 and the regional housing plan description in Section 6-203. Where the regional planning agency has prepared housing projections, they would need to be reflected in the local housing element. Alternative 2 utilizes the more detailed housing element that is described in Section 4-208.9 (Alternative 2), contained in the "Model Balanced and Affordable Housing Act," which establishes a statewide fair-share housing planning system.


7-207 Housing Element (Two Alternatives)

Alternative 1 — A General Housing Element

(1) A housing element shall be included in the local comprehensive plan.

(2) The purposes of the housing element are to:

(a) document the present and future needs for housing within the jurisdiction of the local government, including affordable housing and special needs housing,[204] and the extent to which private- and public-sector programs are meetings those needs;

(b) take into account housing needs of the region in which the local government is located, including the need for affordable housing, especially as it relates to the location of such housing proximate to jobsites;

(c) identify barriers to the production and rehabilitation of housing, including affordable housing;

(d) assess the condition of the housing stock within the local government's jurisdiction and methods to maintain it, including rehabilitation and code enforcement; and

(e) develop sound strategies, programs, and other actions to address needs for housing, including affordable housing.

(3) In preparing the housing element, the local planning agency shall undertake supporting studies that are relevant to the topical areas included in the element. In undertaking these studies, the local planning agency may use studies conducted by others. The supporting studies may concern, but shall not be not limited to, the following:

(a) an evaluation of and summary statistics on housing conditions within the jurisdiction of the local government for all economic segments. The evaluation shall include the existing distribution of housing by type, size, gross rent, value, and, to the extent data are available, condition, the existing distribution of households by gross annual income, and the number of middle-, moderate-, and low-income households that pay more than [28] percent of their gross household income for owner-occupied housing and [30] percent of their gross annual income for rental housing.[205] In evaluating housing condition the local planning agency may conduct field surveys of areas and households within the jurisdiction of the local government as well as assess other qualitative data on housing (such as data from the U.S. Census or from local code enforcement records) and may summarize such conditions in maps or tables, or by other means;

(b) a projection for each of the next [5] years of total housing needs by type and density ranges, including needs for middle-, moderate-, and low-income and special needs housing in terms of units necessary to be built or rehabilitated within the jurisdiction of the local government. Where the [regional planning agency] has prepared such projections for the region in which the local government is located as part of a regional housing plan pursuant to Section [6-203], the local planning agency shall take into account the projections of the regional housing plan in preparing the local projections of total housing need. Where the [regional planning agency] has not prepared such projections, the local planning agency shall instead take into account any projections of housing need for the region or county in which the local government is located that have been published by any state housing, community development, or similar agency in preparing the local projections of total housing needs;

(c) an assessment of housing needs, especially the need for affordable housing, of employees of major employers located within the jurisdiction of the local government and the degree those needs can be addressed by existing or future housing provided within the jurisdiction of the local government.

(d) an analysis of the capabilities, constraints, and degree of progress made by the public and private sectors in meeting the housing needs, including those for affordable housing and special needs housing, within the jurisdiction of the local government;

(e) an identification of local regulatory barriers to affordable housing and/or housing rehabilitation, including building, housing, zoning, and related codes, and their administration; and

(f) an analysis of any proposals for action by local governments contained in any state and/or regional housing plan.

(5) The housing element shall consist of a statement of local housing goals, policies, and guidelines, including numerical goals for each of the next five years for housing units, both new and rehabilitated, for middle-, moderate-, and low-income households and special needs housing within the jurisdiction of the local government, as well as total need by housing type and density ranges. The element shall include summaries of supporting studies identified in paragraph (3) above.

(6) The housing element shall contain actions to be incorporated into the long-range program of implementation as required by Section [7-211] below. These actions may include, but shall not be limited to:

(a) financing for the acquisition, rehabilitation, preservation, or construction of affordable and special needs housing, the stimulation of public- and private-sector cooperation in the development of affordable housing, and the creation of incentives, including tax abatement for the private sector to construct or rehabilitate affordable housing;

(b) use of publicly owned land and buildings as sites for affordable and special needs housing;

(c) regulatory and administrative techniques to remove barriers to the development of affordable housing and to promote the location of such housing proximate to jobsites, including:

1. modifying procedures to expedite the processing of permits for inclusionary developments and modifying development fee requirements, including reduction or waiver of fees and alternative methods of fee payment;

2. designating a sufficient supply of sites in the housing element that will be zoned at uses and densities that may accommodate affordable and special needs housing, rezoning lands at uses and densities necessary to ensure the economic viability of inclusionary developments, and giving density bonuses for mandatory set-asides of affordable dwelling and special needs units as a condition of development approval;

3. modifying development regulations to permit accessory dwelling units, group homes for the disabled and other residential facilities for special needs populations, manufactured housing, and mobile homes; and

4. generally removing constraints that unnecessarily contribute to housing costs or unreasonably restrict land supply.

(d) enactment of housing and property maintenance codes, and initiation or modification or redesign of code enforcement programs to ensure maintenance and rehabilitation of existing housing stock;

(e) any other changes in local tax, infrastructure financing, and land-use policies, procedures, and ordinances (including local land development regulations) to encourage or support affordable housing and the preservation and rehabilitation of existing housing stock, including reserving infrastructure capacity for affordable housing, and

(f) use of federal funds and any state, local, or other resources available for affordable housing.

Alternative 2 — A Housing Element Intended to Satisfy a Local Government's Fair-Share Obligation

(1) A housing element shall be included in the local comprehensive plan.

(2) The housing element described in Section [4-208.9, Alternative 1] that has been prepared by the local government and reviewed and approved by the [Balanced and Affordable Housing Council or regional planning agency] pursuant to Section [4-208.13, Alternative 1] shall serve as the required housing element for the purposes of this Section.


Commentary: Economic Development Element

Many local comprehensive plans address economic development to accommodate as well as stimulate economic growth and preserve existing jobs.[206] The traditional approach to both aspects has been to forecast economic growth and to meet the land and infrastructure needs of commerce and industry. Indeed, analysis of the local government's economic base has typically been a fundamental study underlying the land-use element. The practice of economic development has evolved considerably over time, however. The economic development tools available to local government, especially as a result of specialized state legislation and related state and federal initiatives (notably those through the U.S. Economic Development Administration and the U.S. Department of Housing and Urban Development), have grown extensively, as has local sophistication in their use.

Moreover, the perspective of what economic development is has substantially broadened. Economic development is no longer thought of as merely meeting land-use and infrastructure needs. It now extends to human resources (e.g., education, job training, and other forms of labor force development), development financing (e.g., tax increment financing, industrial development bonds, low interest loans, and revolving loan funds), and to the creation of organizations such as chambers of commerce, community development corporations, business incubators, and specialized public- private partnerships that market an area's benefits and resources as well as actively participate in development projects.[207] In some parts of the nation, the state itself may be leading the economic development initiatives on behalf of local governments. In others, economic development may have a more regional focus, with a number of local governments or business groups joining together to achieve common goals. In still others, the initiative may come from individual local governments. Still, despite where the initiatives may originate, many see regions themselves as the fundamental economic unit. The discrete competitive factors and advantages of a region — its natural resources, its collective labor pool, its relative wage levels, its particular combination of business enterprises, the skills of its workforce, its business and political leadership, its investment in public infrastructure, its cultural amenities — are what make it attractive and cause it to grow. Thus, local governments now operate in a world in which the Los Angeles area competes with Seattle and Tokyo and the Chicago area with London and New York.[208]

Local (or regional) economic development typically has several purposes:

  • job creation and retention;
     
  • increases in real wages (e.g., economic prosperity);
     
  • stabilization or increase of the local tax base; and
     
  • job diversification — making the community less dependent on a few employers.

A number of factors typically prompt a local economic development program. They include: loss of a major employer; competition from surrounding communities (or nearby states); the belief that economic development yields a heightened quality of life, the desire to provide employment for existing residents who would otherwise leave the area, economic stagnation or decline in a community or part of it, and the need for new tax revenues.[209]

A number of states address economic development in their local planning statutes or administrative rules. All of the states that follow stress the analysis of economic development potential in a state and/or regional as well as a local context.

New Jersey authorizes, as part of a municipal master plan:

[a]n economic plan element considering all aspects of economic development and sustained economic vitality, including (a) a comparison of the types of employment expected to be provided by the economic development to be prompted with the characteristics of the labor pool resident in the municipality and nearby areas and (b) an analysis of the stability and diversity of the economic development to be promoted.[210]

Rhode Island requires the preparation of an economic development element as part of a mandatory local comprehensive plan. Rhode Island's statute calls for such an element to include:

the identification of economic development policies and strategies, either existing or proposed by the municipality, in coordination with the land use plan element. These policies should reflect local, regional, and statewide concerns for the expansion of the economic base and promotion of quality employment opportunities. The policies and implementation techniques must be identified for inclusion in the implementation program element.[211]

Oregon and Georgia are examples of states that have detailed economic development requirements in local comprehensive plans through administrative rules rather than through statutes.

In both cases, the administrative rules are highly detailed. Oregon's administrative rules focus on the preparation of an "economic opportunities analysis" that is to: (1) review national and state and local trends for commercial and industrial uses that could reasonably be expected to locate or expand in the planning area; (2) identify the types of sites that are likely to be needed by such uses; (3) estimate the amount of serviceable land for such uses; and (4) designate additional serviceable land for such uses, if possible depending on public facility limitations.[212] Georgia's administrative rules call for an analysis of the community's economic base, labor force, and local economic development resources. According to the rules, this assessment should result in:

a plan for economic development in terms of how much growth is desired, what can be done to support retention and expansion of existing businesses, what types of new businesses and industries will be encouraged to locate in the community, what incentives will be offered to encourage economic development, whether educational and/or job training programs will be initiated or expanded, and what infrastructure improvements will be made to support economic development goals during the planning period.[213]

Section 7-208, the description of the local economic development element that follows, draws on many of the provisions of these statutes and rules. Generally this description is intended to be consistent with the state economic development plan model statute in Section 4-206. Like the state-level model, the local economic development element is a form of strategic planning by which the local government assesses its strengths and weaknesses, especially in the context of trends in the surrounding region. It then proposes a series of actions to encourage job retention and growth, accommodate business and industry, and broaden economic opportunity.

It should be emphasized that the preparation of such an element may be facilitated by the use of special advisory task forces consisting of representatives of local economic development organizations, major employers, commercial and industrial real estate brokers and developers, and others with similar knowledge. Such task forces will enhance the local government's capacity in plan preparation as well as provide a strong public-private linkage that will serve it well in implementing the economic development elements proposals.

The Jobs/Housing Balance

While all the elements in the local comprehensive plan are to be coordinated, the Legislative Guidebook places special emphasis on ensuring an express recognition of the linkage between the housing and economic development elements—what has been called the "jobs-housing balance.[214] Often local governments, particularly in suburban areas, embark on programs to attract new businesses but neglect to provide reasonable opportunities for affordable housing for the employees of those new businesses. The language in the Guidebook attempts to guard against that possibility. For example, a purpose of the housing element, in Section 7-207(2)(b) (Alternative 1), is to "take into account housing needs of the region in which the local government is located, including the need for affordable housing, especially as it relates to the location of such housing proximate to jobsites." The economic development element's purpose, in Section 7-208(2)(e) includes defining "the local government's role in encouraging job retention and growth and economic prosperity, particularly in relation to the availability of adequate housing for employees of existing and potential future businesses, industries, and institutions within its jurisdiction. . . . " It also includes, in the list of underlying studies for the element, an analysis of the existing and projected housing stock within the local government as to whether it will be adequate for such employees.


7-208 Economic Development Element [Opt-Out Provision Applies]

(1) An economic development element shall be included in the local comprehensive plan, except as provided in Section [7-202(5)] above.

(2) The purposes of the economic development element are to:

(a) coordinate local economic development initiatives with those of the state through its state economic development plan prepared pursuant to Section [4-206] and other state initiatives;

(b) ensure that adequate economic development opportunities are available in order to provide a heightened quality of life and to enhance prosperity;

(c) relate the local government's initiatives to the distinct competitive advantages of its surrounding region that make it attractive for business and industrial growth and retention, including its historic, cultural, and scenic resources;

(d) assess the local government's strengths and weaknesses with respect to attracting and retaining business and industry; and

(e) define the local government's role in encouraging job retention and growth and economic prosperity, particularly in relation to the availability of adequate housing for employees of existing and potential future businesses, industries, and institutions[215] within its jurisdiction, transportation, broadening of job opportunities, stimulating private investment, and balancing regional economies.

(3) In preparing the economic development element, the local planning agency shall undertake supporting studies. In undertaking these studies, the local planning agency may use studies conducted by others, such as those conducted in preparation of the state economic development plan or any regional plan. The supporting studies may concern, but shall not be limited to, the following:

(a) job composition and growth or decline by industry sector on a national, statewide, or regional basis, including an identification of categories of commercial, industrial and institutional activities that could reasonably be expected to locate within the local government's jurisdiction. This shall include any studies and analyses of trends and projections of economic activity made as part of the land-use element pursuant to Section [7-204(5)(b)];

(b) existing labor force characteristics and future labor force requirements of existing and potential commercial and industrial enterprises and institutions in the state and the region in which the local government is located;

(c) assessments of the locational characteristics of the local government and the region in which it is located with respect to access to transportation to markets for its goods and services, and its natural, technological, educational, and human resources;

(d) assessments of relevant historic, cultural, and scenic resources and their relation to economic development;

(e) patterns of private investment or disinvestment in plants and capital equipment within the jurisdiction of the local government;

(f) patterns of unemployment in the local government and the region in which it is located;

(g) surveys of owners or operators of commercial and industrial enterprises and institutions within the local government's jurisdiction with respect to factors listed in subparagraphs (a) to (e) above. This shall also include an identification of the types of sites and supporting services for such sites that are likely to be needed by such enterprises and institutions that might locate or expand within the local government's jurisdiction;

(h) inventories of commercial, industrial, and institutional lands within the local government that are vacant or significantly underused. Such inventories may identify the size of such sites, public services and facilities available to it, and any site constraints, such as floodplains, steep slopes, or weak foundation soils. In conducting such an inventory, the local government shall utilize the existing land-use inventory prepared pursuant to Section [7-204(5)(f)] above. This inventory shall also identify any environmentally contaminated sites that have the potential for redevelopment for commercial and industrial uses once such contamination has been removed;

(i) assessments of organizational issues within the local government for encouraging economic development and the roles and responsibilities of other organizations that are involved in economic development efforts within the local government's jurisdiction and/or the region in which it is located, including the potential for cooperative efforts with other local governments;

(j) the adequacy of the existing and projected housing stock within the local government's jurisdiction for employees of existing and potential future commercial and industrial enterprises and institutions within its jurisdiction;

(k) assessments of regulations and permitting procedures imposed by the local government on commercial and industrial enterprises and institutions and their effects on the costs of doing business as well as their effect on the attraction and retention of jobs and firms; and

(l) opinions of the public, through surveys, public hearings, and other means, as to the appropriate role of the local government in economic development and desired types of economic development. Such opinions may also be obtained through the process of preparing the issues and opportunities element pursuant to Section [7-203] above.

(4) Based on the studies undertaken pursuant to paragraph (3) above, the economic development element shall contain a statement, with supporting analysis, of the economic development goals, policies, and guidelines of the local government. This shall include:

(a) a definition of the local government's role and responsibilities as a participant in the development of its region's economy;

(b) an identification of categories or particular types of commercial, industrial, and institutional uses desired by the local government; and

(c) a commitment to designate an adequate number of sites of suitable sizes, types, and locations and to ensure necessary community facilities through the community facilities element of the local comprehensive plan.

The economic development element may also include goals, policies, and guidelines to maintain existing categories, types, or levels of commercial, industrial, and institutional uses.

(5) The economic development element shall contain actions to be incorporated into the long-range program of implementation required by Section [7-211] below. These actions may include, but shall not be limited to, proposals for:

(a) rezoning of an adequate number of sites for commercial, industrial, and institutional uses during the 20-year planning period;

(b) reuse of environmentally contaminated sites for commercial and industrial activities through [cite to state statute authorizing brownfields redevelopment];

(c) capital projects of transportation and community facilities to service designated sites for commercial, industrial, and institutional activities;

(d) creation of or changes in job training programs;

(e) use of economic development incentives authorized by state law such as [tax abatement, industrial development bonds, tax increment financing, and urban renewal] and grant and loan programs that use local, state, or federal monies;

(f) creation of a joint economic development zone pursuant to Section [14-201] below;

(g) amendments to land development regulations that affect commercial, industrial, and institutional uses and other changes in administrative and permitting processes of the local government to facilitate economic development;

(h) programs of monitoring the needs of existing businesses and institutions to ensure their retention;

(i) design guidelines for commercial, industrial, and institutional areas;

(j) creation of new or continuation and enhancement of existing economic development organization(s), such as a chamber of commerce, community development corporation, tourism bureau, or community improvement corporation; and

(k) public information programs to market the economic development potential of the local government.


Commentary: Critical and Sensitive Areas Element

A number of states call on local governments to identify critical and sensitive areas in their local comprehensive plans. Such areas include particular land and water bodies that provide protection to or habitat for rare and endangered plants and wildlife. They may be natural resources, such as wetlands, requiring protection from inappropriate or excessive development. By identifying such areas, the local government can take action, through regulation, purchase of land or interests in land, modification of public and private development projects, or through other measures to safeguard these resources.

Three states provide good examples of this approach. As a consequence of 1992 amendments to its planning statutes, Maryland requires a local comprehensive plan that must include a sensitive areas element that covers streams and their buffers, 100-year floodplains, habitats of threatened and endangered species, and steep slopes. The state economic growth, resource protection, and planning commission is required to define and establish standards to govern activities in sensitive areas that apply to such areas until the local government adopts a sensitive areas element.

Florida has a similar provision in its laws. It mandates a "conservation element" in the local comprehensive plan for the "conservation, use, and protection of natural resources in the areas, including ". . .water, water recharge areas, wetlands, waterwells, estuarine marshes, soils, beaches, shores, floodplains rivers, bays, lakes, harbors, forests, fisheries, marine habitat, minerals, and other natural and environmental resources."[217]

Washington also requires that each county and city designate critical areas and adopt development regulations to protect their functions and values. In doing so, the local governments must use "best available science" in developing policies and regulations.[218] Under state administrative rules, critical areas include wetlands, recharge areas for aquifers, fish and wildlife habitat conservation areas, and geologically hazardous areas.[219]

Section 7-209 below is a critical and sensitive areas element similar to the statutes in these states. The element applies to: aquifer systems; watersheds to fresh and coastal water systems and bodies; wellhead protection areas; inland and coastal wetlands; as well as any other areas that might satisfy the criteria for designation as an area of critical state concerned described in Chapter 5, Section 5-201 et. seq., of the Legislative Guidebook.

The element calls on the local government to assess the relative importance of critical and sensitive resources. This is a difficult but important task. It is difficult because it requires a subjective ranking of one resource's value over another's. The relative ranking is important as it allows local governments to focus on priority protection areas. For communities that deem all their critical and sensitive resources of equal value, the resulting analysis should state so. Otherwise, the community should attempt to prioritize resources where possible. For example, a community that relies solely on one source of surface water for drinking water may wish to prioritize lands within the surface water body's watershed over lands identified as providing wildlife habitat. Note that this prioritization does not minimize the importance of any critical or sensitive resource. Rather, it allows the community to focus protection efforts based on the relative benefit each resource area provides.

It also suggests that the local government use a "carrying capacity analysis" as a tool in evaluating critical areas.[220] Such an analysis is an assessment of the ability of a natural system to absorb population growth as well as other physical development without significant degradation. Understanding the carrying capacity or constraints of natural resources (particularly ground and surface water systems) provides local governments with an effective method for identifying which portions of the community or region are most suitable sites for new or expanded development. Similarly, knowledge of carrying capacity limitations allows local government residents and officials to make more rational and defensible decisions regarding how and where development may occur in critical and sensitive areas. For example, if the carrying capacity of a surface water body has been determined to allow for a residential density of one dwelling unit per 20,000 square feet (assuming septic tanks instead of central sewers), proposals requiring 40,000 square feet (based on protecting the pond from excessive phosphorus loading) would not be defensible. Conversely, if a carrying capacity analysis determined that the surface water body would become eutrophic at a density of less than 40,000 square feet per dwelling, a zoning ordinance requiring a minimum of 40,000 square feet per dwelling would likely be defensible under the local government's police power authority. Alternately, the local government may decide that public sewers, as opposed to septic systems, should be required in the affected area.

Establishing the carrying capacity of a resource is a rigorous quantitative analysis, yet has often been avoided due to the perception that the scientific investigations required are beyond the financial or technical abilities of many local governments. For example, determining the carrying capacity of a surface water body with respect to nitrogen or phosphorus loading requires a thorough understanding of the dynamics of the water body, the sources of nitrogen or phosphorus loading in the watershed, and the level at which nitrogen or phosphorous is assimilated by the water resource.

Still, completing a carrying capacity analysis provides the community with a powerful tool for making decisions and choices about how to resolve conflicts between development and preservation goals. The solutions may include proposing alternative technological approaches or mitigation techniques.

If the community has determined that protection of a certain public supply well is a priority, the carrying capacity analysis will assist in evaluating the appropriate level of new development within the wellhead protection area to that well. Without such an analysis accompanied by a public debate and evaluation over its findings, decisions regarding development within the wellhead protection area are often reduced to opinions, unsubstantiated by scientific research. More important, completing such an analysis and identifying important critical and sensitive areas flags potential problems in advance of development, providing predictability.

Too often environmental analysis is conducted at the time a development proposal is well along, leading to the "discovery" of a critical area on a site where, say, affordable housing is proposed, so the debate becomes not how to protect the resource, but how to protect the resource by stopping or seriously slowing down the development. Finally, by providing a factual basis for specialized land development regulations that may need to be enacted to protect the critical and sensitive areas against harm or degradation, this plan element may avert or minimize a taking claim when development must be severely restricted.

Suggestions for Preparing the Critical and Sensitive Areas Element

The narrative for the element should include descriptions of the critical or sensitive area identified and refer to the map(s) on which the resource has been graphically identified (e.g. "See Map ___, scale 1"=___, January 1, 2000). Maps developed for this element should be based on field surveys and prepared manually or, where possible, with a geographic information system (GIS). Regardless of the mapping method chosen, the maps should be prepared as overlays, so that all of the identified critical and sensitive areas can be identified individually (e.g. all inland wetlands) and cumulatively (e.g. all wetlands, surface water bodies, wellhead protection areas, etc.). While there is no required scale for the maps, it is strongly recommended that the scale chosen be practical and useful, given the available information and the costs of the mapping effort. For example, a scale of 1" = 100' is far more useful than a scale of 1" = 2,000', but will require a greater level of precision and a greater cost.

The identification of aquifer systems is a required component regardless of whether the local government relies on surface water supplies for drinking water or obtains drinking water from outside municipal boundaries. This requirement is based on the following assumptions:

(1) Aquifer resources, even if degraded, have potential future uses for drinking water supplies and often exist in multiple layers. For example, in many parts of the country, groundwater can be obtained from various depths, representing the fact that aquifer units are often segregated from other aquifer units (e.g. upper and lower aquifers). Thus even where the upper or lower aquifer is degraded, it remains possible to extract potable water from the unaffected aquifer system.

(2) Private wells are used for drinking water purposes typically in non-urban areas. These wells extract water from the same aquifer as do public water supplies (albeit often at shallower levels). Thus even where public water supplies are derived from sources other than "local" groundwater, understanding aquifer systems is important for protection of private wells.

(3) Aquifer systems, as with other critical and sensitive resources, do not respect municipal boundaries. An aquifer system running through City "A" may be used for drinking water by abutting Town "B". Unabated contamination of the land area in City "A" is likely to negatively impact the drinking water supply of adjacent communities.

Accurate information regarding aquifer systems in a local government is available for every jurisdiction in the country from either the United States Geological Survey, the regional office of the U.S. Environmental Protection Agency, and/or the relevant state office of environmental management/protection. Depending on the state in which the local government lies, aquifer information, including detailed mapping, may be available on electronic databases such as geographic information systems.

Identification of watersheds to fresh and coastal water systems requires an understanding of the topography of the general area and a determination of the direction of surface water flow/runoff. Watersheds to many large fresh and coastal water bodies have been mapped by federal agencies (e.g. United States Geological Survey) and state agencies (e.g. coastal zone management office). Regional offices of the U.S. Environmental Protection Agency have information on mapped watersheds within their region, most of which information is currently available at EPA's Internet site (www.epa.gov). In many other cases, non-profit organizations (e.g. watershed agencies) have completed mapping of surface water bodies.

Identification of wellhead protection areas is required by the majority of states as a prerequisite to the development of a new public water supply source.[221] Information on wellhead protection area delineation is generally available from the respective state department of environmental protection/management, the regional office of U.S. EPA and/or the local water utility. Even where not required by the state, communities should also consider delineating and identifying wellhead protection areas for pre-existing wells.

Wetland habitats, be they fresh, brackish or saltwater, provide numerous benefits, ranging from flood prevention to water purification.[222] The federal government and all states regulate wetland resources. Many states have mapped both inland resources and, where relevant, coastal resources. As accurate mapping of wetland systems requires detailed field investigations, this component should attempt to identify wetlands only in a general manner. In other words, wetland by wetland mapping is not required for the analysis of wetland called for in the element.


7-209 Critical and Sensitive Areas Element [223] [Opt-Out Provision Applies]

(1) A critical and sensitive areas element shall be included in the local comprehensive plan, except as provided in Section [7-202(5)] above.

(2) The purposes of the critical and sensitive areas element are to:

(a) further identify the characteristics of critical and sensitive areas within the jurisdiction of the local government as well as detail such areas that have been previously identified in the land-use element pursuant to Section [7-204] above;

(b) assess the relative importance of these areas to the local government in terms of size, quality, and/or resource significance and relate them to relevant regional systems;

(c) establish the thresholds at which the identified areas begin to decline in value as a resource;

(e) identify mitigating measures that may need to be taken in such areas to offset or accommodate the impacts of development;

(f) identify conflicts between other elements of the local comprehensive plan and land development regulations and critical and sensitive areas;

(g) provide a factual basis for any land development regulations that the local government may enact that apply to and protect critical and sensitive areas [.][; and]

[(h) provide a factual basis on which to initiate the designation of an area of critical of state concern pursuant to Section [5-204].]

(3) The critical and sensitive areas element shall be in both map and textual form. Maps shall be at a suitable scale consistent with the existing land-use map or map series described in Section [7-204(6)(a)] above.

(4) The critical and sensitive areas element shall contain an analysis component and a policy component as well as proposals for action to be included in the long-range program of implementation.

(5) The analysis component shall include:

(a) an identification of any critical and sensitive areas that are within the jurisdiction of the local government or that may be shared with abutting local government units, including:

1. aquifer systems;

2. watersheds to fresh and coastal water systems and bodies;

3. wellhead protection areas for existing and planned future public supply wells that are included in the community facilities element described in Section [7-206];

4. inland and coastal wetlands, including beaches, banks and dunes;

5. other wildlife habitats, including animals, birds, fish, and plants and including habitats for federal and state listed endangered and threatened species;

6. any other areas that might meet the criteria for designation as an area of critical state concern pursuant to Section [5-203(1)(a) to (d) and (f) to (g))] above, but excluding any areas susceptible to significant natural hazards in Section [5-203(1)(e)] that would otherwise be addressed in the natural hazards element prepared pursuant to Section [7-210] above; and

7. [other].

(b) an appraisal of the relative importance of each critical and sensitive area identified in subparagraph (a), above;

(c) an assessment of the carrying capacity of any natural resources identified in subparagraph (a) 1 through 3, above, where such an analysis is appropriate in the judgment of the local planning agency, and a determination of any mitigating measures (such as changes to local land development regulations, modification of site plans, uses of alternative technologies, and/or public acquisition) that may need to be taken to offset or accommodate the impacts of development; and

— The language here is intended to ensure that the local government not only assesses the critical and sensitive area's carrying capacity, as needed, but also informs that analysis with an appraisal of mitigating measures to accommodate development and overcome environmental constraints. These measures may include changes to local land development regulations, modification to site planning practices, use of alternative wastewater treatment technology, etc. Not all resource management issues can be resolved with technological or regulatory fixes, but the process of evaluation should at least identify them and what their strengths and weaknesses are. The determination of whether to use a detailed carrying capacity analysis is at the discretion of the local planning agency.

(d) a determination of whether proposals or actions contained in any other elements of the local comprehensive plan will affect and/or conflict with any critical and sensitive areas identified pursuant to subparagraph (a) above.

— For example, a program of economic development is likely to require supportive infrastructure, including water supply and sewage disposal. New economic development may be dependent on new sources/supplies of drinking water, thus triggering the need to develop new wells or reservoirs. In turn this will trigger the need to delineate wellhead protection areas or watersheds. Similarly, increased wastewater disposal needs often requires development of new decentralized sewage treatment systems, expansion of existing centralized treatment systems or use of on-site wastewater disposal systems (e.g. septic systems). The land area(s) needed for increased wastewater disposal should be evaluated in light of the inventory conducted under subparagraph (a) above.

The analysis should also identify conflicts between a local government's critical and sensitive resources and the growth and development programs contained in the local comprehensive plan. For example, using the scenarios noted in the commentary above, there are potential conflicts between the development of a new sewage treatment facility and groundwater quality protection. A conflicts analysis will allow the community to determine possible mitigating measures (e.g. relocate the sewage treatment plant outside of the watershed, aquifer or zone of contribution) and/or re-evaluate the location chosen for development. The conflicts analysis is logically connected to the assessment of relative importance in subparagraph (b), above. If a sewage treatment facility will discharge wastewater to an aquifer system considered to be impaired and not likely to provide potable water, it is possible that the community may continue with plans for the treatment plant. However, if the aquifer has been identified in subparagraph (b) above as a primary source of current and/or future drinking water supplies, decisions regarding the treatment plant should likely be altered.

(6) The policy component shall contain a statement of the local government's goals, policies, and guidelines with respect to the protection of critical and sensitive areas and a map or map series that summarizes the areas to be protected.

(7) The critical and sensitive areas element shall contain actions to be incorporated into the long-range program of implementation as required by Section [7-211] below. These actions may include, but shall not be limited to, proposals for:

(a) acquisition of identified critical and sensitive areas in fee simple or by easement by the local government or by nonprofit conservation organizations;

(b) the designation of areas of critical state concern;

(c) enactment of land development regulations to protect identified critical and sensitive areas, including but not limited to critical and sensitive area overlay districts pursuant to Section [9-101];

(d) local capital improvements or modifications to local capital improvements that will mitigate their effect on identified critical and sensitive areas; and

(e) any implementing agreements between the local government and other local governments to protect critical and sensitive areas that are shared by more than one governmental unit entered into pursuant to Section [7-504] below.


Commentary: Natural Hazards Element

Planning for the reduction of losses from natural hazards has been largely driven by concerns for public safety. California, for example, uses the term "safety element" to describe a required local comprehensive plan element that involves the assessment of a variety of natural hazards.[225] Other issues that justify such planning — including fiscal and economic instability — are derived mostly from the consequences of failing to adequately exercise the police power to ensure public safety in the face of natural disasters. This remains true even with planning for long-term recovery and post-disaster reconstruction: the aftermath of one natural disaster is simply the prelude to the next one.

States and communities across the country are slowly, but increasingly, realizing that simply responding to natural disasters, without addressing ways to minimize their potential effect, is no longer an adequate role for government. Striving to prevent unnecessary damage from natural disasters through proactive planning that characterizes the hazard, assesses the community's vulnerability, and designs appropriate land-use policies and building code requirements is a more effective and fiscally sound approach to achieving public safety goals related to natural hazards.[226] Attending to natural hazard mitigation can also provide benefits in other local policy areas. Minimizing or eliminating development in floodplain corridors, for example, provides environmental benefits as well as potential new recreational opportunities. Communities can often profit from undertaking post-disaster reconstruction actions that at other times might be too controversial or cumbersome — the notion of striking while the iron is hot. Where a disaster has destroyed a marginal business district, for example, planners can seize the opportunity to use redevelopment to effect a rebirth that might not otherwise be possible.

Building public consensus behind even the most solid plans can be a challenging task, especially in jurisdictions exposed to multiple hazards. To meet this challenge, it is recommended that the development of a natural hazards element, including plans for post-disaster recovery and reconstruction, come from an interdisciplinary, interagency team with broadly based citizen participation, to ensure both a range of input and effective public support. Community experience in dealing with natural hazards plans, whether for mitigation or post-disaster recovery, or both, has consistently demonstrated that this topic demands a wide range of input and expertise.

The following model incorporates the best practices found in state statutes (see footnote below)[227] plus other best practices drawn from exemplary local planning for natural hazards and long-term post-disaster recovery. These latter best practices are identified in the commentary to the model natural hazards element below.

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