7-304 [Other Subplans — for Future Expansion]

Procedures for Plan Review, Adoption, and Amendment


Commentary: Public Participation Procedures and Public Hearings

[291]

Traditionally, in authorizing local planning commissions and/or legislative bodies to prepare and adopt a comprehensive plan, state statutes only mention citizen participation in the statute through a single public hearing.[292] While useful, public hearings may become adversarial, sometimes resulting in a one-way conversation rather than a multiparty dialogue. Planning statutes must do more to recognize and encourage and perhaps even mandate greater community involvement in local comprehensive planning.

A number of authors point to the cost of conflict as one of the primary reasons why the traditional approach to developing a comprehensive plan needs rethinking. While there are many reasons for employing consensus building for the purposes of preparing a plan, the practice continues to generate significant interest as a method of addressing and balancing complex and controversial issues where multiple, conflicting interests are at stake as well as ensuring a basis for (and public expectation of) implementation.[293] Planning disputes address environmental concerns, affordable housing, adequacy of public infrastructure, and economic development, among other issues, and they become more contentious because they involve specific sites, landowners, and stakeholders as well as tangible costs and benefits.

One proponent of collaborative problem solving points out that not only can a collaborative process bring political, technical, and values-oriented criteria together, but that "[a] positive, open and collaborative civic culture will help promote constructive community decisionmaking and trust between citizens and staff."[294] Undergirding this is the belief that better decisions will emerge as communities enable joint thinking among a diverse group of people, thus encouraging greater creativity and a larger number of options of better quality.[295] Several authors have suggested that land-use planning is becoming far more participatory, and this calls for planners to employ new skills of consensus building and conflict management.[296]

As states revise their planning statutes, they often incorporate citizen participation procedures. With specific reference to citizen participation in land-use planning as it relates to growth management, a Maine statute provides:

In order to ensure citizen participation in the development of a local growth management program, municipalities may adopt local growth management programs only after soliciting and considering a broad range of public review and comment. The intent of this subsection is to provide for the broad dissemination of proposals and alternatives, opportunity for written comments, open discussions, information dissemination and consideration of and response to public comments.[297]

The law further calls for the same level of citizen participation when amending an adopted comprehensive plan.[298]

Public participation is also required in Florida. Its planning statute provides: "It is the intent of the Legislature that the public participate in the comprehensive planning process to the fullest extent possible. Towards this end, local planning agencies and local governmental units are directed to adopt procedures designed to provide effective public participation in the comprehensive planning process. . . "[299] Among the minimum requirements towards achieving public participation set forth in the statute, is the requirement that procedures for considering a proposed plan or amendments thereto by the local agency (or governing body), ". . .shall provide for broad dissemination of the proposals and alternatives, opportunity for written comments, public hearings...provisions for open discussions, communications programs, information services, and consideration of and response to public comments."[300] Florida law further provides that each local vision, ". . . should be developed through a collaborative planning process with meaningful public participation. . ."[301] The Florida legislature also established a conflict resolution consortium, ". . . to reduce the public and private costs of litigation . . ." and to ". . . resolve public disputes, including those related to growth management issues. . .through the use of alternative dispute resolution and consensus-building."[302]

Municipal planning law in the District of Columbia provides that, ". . . the Mayor shall establish procedures to ensure citizen involvement in the planning process. . ."[303] The preparation of a general land-use plan in Arizona requires that the local planning agency ". . . seek maximum feasible public participation from all geographic, ethnic and economic areas of the municipality and consult and advise with public officials and agencies, public utility companies, civic, educational, professional and other organizations, and citizens generally to the end that maximum coordination of plans may be secured and properly located sites for all public purposes may be indicated on the general plan."[304] Idaho requires the local planning or zoning commission to:

provide for citizen meetings, hearings, surveys, or other methods, to obtain advice on the planning process, plan, and implementation. The commission may also conduct informational meetings and consult with public officials and agencies, public utility companies, and civic, educational, professional, and other organizations. As part of the planning process, the commission shall endeavor to promote a public interest in and understanding of the commission's activities.[305]

Oregon requires that each city and county governing body submit to the State Land Conservation and Development Commission (LCDC) (the body that has rulemaking authority over the state land-use planning program) "a program for citizen involvement in preparing, adopting and amending comprehensive plans and land use regulations. . . . Such program shall at least contain provision for a citizen advisory committee or committees broadly representative of the geographic areas and interests relating to land use and land use decisions."[306] A state citizen involvement advisory committee reviews each proposed local program and recommends to the LCDC whether or not the program is adequate and, if it is inadequate, in what respects.[307]

The Washington Growth Management Act provides:

Each city and county that is required or chooses to plan under RCW 36.70A.040 shall establish and broadly disseminate to the public a public participation program identifying procedures providing for early and continuous public participation in the development and amendment of comprehensive land-use plans and development regulations implementing such plans. The procedures shall provide for broad dissemination of proposals and alternatives, opportunity for written comments, public meetings after effective notice, provision for open discussion, communication programs, information services, and consideration of and response to public comments. . .[308]

The model language in Section 7-401 below requires the local government to adopt written procedures for public participation in the preparation of the local comprehensive plan, but avoids language that is too specific. The local government, under this Section, must tailor an approach that is best for its individual community.

The model gives some examples of selected techniques, but leaves the choice of those techniques up to the community. In addition, Section 7-401 establishes procedures for public hearings on the comprehensive plan that are similar to those found elsewhere in the Legislative Guidebook for state and regional planning agencies.[309]


7-401 Public Participation Procedures and Public Hearings

(1) The [legislative body of the local government or the local planning commission] shall adopt written procedures designed to provide early and continuous public participation in the preparation of the local comprehensive plan or successive elements or other amendments thereto.

(2) The public participation procedures shall provide for the broad dissemination of proposals and alternatives for the local comprehensive plan or such part or other amendment in order to ensure a multi-directional flow of information among participants in advance of and during the preparation of plans. Examples of measures contained in such procedures may include, but shall not be limited to:

(a) surveys and interviews of the local government's residents and business owners, operators, and employees;

(b) communications programs and information services, such as public workshops and training, focus groups, newsletters, a speaker's bureau, radio and television broadcasts, and use of computer-accessible information networks;

(c) opportunity for written comments on drafts of the plan or such part or other amendment;

(d) appointment of a person to serve as a citizen participation coordinator for the planning process; and/or

(e) the creation of advisory task forces.

(3) The [legislative body or local planning commission] shall hold at least [1] public hearing prior to the adoption of a proposed local comprehensive plan or such part or other amendment. The [legislative body or planning commission] shall give notice by publication in a newspaper(s) having general circulation within the local government and may also give notice, which may include a copy of the draft plan or amendment, by publication on a computer-accessible information network[310] or by other appropriate means at least [30] days before the public hearing. The form of the notice of the public hearing shall include:

(a) the date, time, and place of the hearing;

(b) a description of the substance of the proposed plan or such part or amendment;

(c) the officer(s) or employee(s) of the local government from whom additional information may be obtained;

(d) the time and place where the proposed plan or such part or other amendment may be inspected by any interested person prior to the hearing; and

(e) the location where copies of the proposed plan or such part or other amendment may be obtained or purchased.

(4) The [legislative body or planning commission] shall also give notice by certified mail in the form described in paragraph (3) above at least [30] days before the public hearing to:

(a) the director of the [state planning agency];

(b) the director of any [regional planning agency] in the region where the local government is located;

(c) the chief executive officer of any adjoining local government;

(d) the chief executive officer of any special district, including a school district, that operates in whole or in part within or adjoining the local government;

[(e) any neighborhood planning council established pursuant to Section [7-109] above;]

[(f) any neighborhood or community organization recognized by the legislative body pursuant to Section [7-110] above; and]

(g) [other].

(5) At the public hearing, the [legislative body or local planning commission] shall permit interested persons to present their views orally or in writing on the proposed local comprehensive plan or such part or other amendment, and the hearing may be continued from time to time.

(6) After the public hearing, the [legislative body or local planning commission] may revise the proposed plan or such part or other amendment, giving appropriate consideration to all written and oral comments received.

State Review and Approval Procedures

Sections 7-402.1 to 7-402.5 below together provide procedures for state review and approval of local and regional comprehensive plans by a state comprehensive plan appeals board, for appeals by municipalities and other local governments of urban growth area designations in the event of a dispute with a regional or county planning commission, and for appeals by state agencies to undertake significant capital projects that were not incorporated into state-approved local or regional comprehensive plans. These Sections should be utilized when the state legislature determines that the state should have a role in ensuring that such plans meet legislative and administrative requirements and comply with state goals and policies while providing a means of hearing disputes over decisions made under the planning statutes.


Commentary: Comprehensive Plan Appeals Board

[311]

Any time there is an administrative proceeding and an agency makes a significant planning decision an appeal process must be available to the governmental units involved and possibly other significantly affected parties. This ensures that administrative agencies are following and interpreting the law correctly and are not abusing their discretion. Although good professional review and assistance are critical to the credibility of a program, few state agencies have sufficient political resources of their own to ultimately endure the controversy that results from continual challenges to (or anger over) their decisions without such a relief valve.

Several states have such appeals processes. In Rhode Island, when the state department of administration declines to approve a local comprehensive plan, cities and towns may request a review by a Comprehensive Plan Appeals Board, appointed by the governor.[312] Similarly, in Florida, local governments may appeal certification decisions by the Department of Community Affairs to the Administration Commission, composed of the governor and cabinet officers.[313] In Washington, which does not have state approval of local plans, the three regional Growth Management Hearings Boards[314] fulfill much the same function by directly reviewing challenges by interested parties to the adequacy of adopted local plans.

The courts alone, on a case-by-case basis, could, in effect, conduct the review of local or regional plans in those instances when a landowner or other plaintiff challenges a plan based on its non-compliance with the enabling statute where the plan has regulatory impact. But the state court system, with its lack of expertise in such planning issues, is not a preferred initial appellate forum. And the uncertainty that such a process would introduce, both for the local or regional bodies and for the landowners, defeats one of the very purposes of planning in the first place, which is to give the public and interested parties some certainty about the intended future actions of the local government. The more efficient means of ensuring that a plan or land use regulation complies with the enabling statute and is compatible with other relevant plans is to have it reviewed for this purpose before coming into effect.

As the commentary on the approval of regional and local comprehensive plans below explains in more detail, review of regional or local plans or actions by other governmental entities has a subjective dimension and consequently there is a policy or political element to the process. For this reason, there should be recourse from the decision of administrative bodies such as the state planning agency, to a policy-focused body. The body established in this Section is the Comprehensive Plan Appeals Board (CPAB).[315] The membership requirements for such a body can be constituted to represent various levels of government, various regions of the state, various public interests, or such other arrangements as will make the body a repository of experience whose decisions are respected.

It is expected, and required in the Section, that governmental entities appearing before the Board will be represented to at least some degree by planning personnel, if the entity has planning personnel. This is to ensure that there is somebody with experience in planning and land-use regulation representing the government's interests before the board, or at least closely advising the governmental entity's representative, and that the proceeding does not become wholly focused on legal procedures, important as they may be.

To the same end, the CPAB is authorized to create and enforce rules of procedure before it. It is left up to the CPAB as to how detailed such procedure will be, and how much or little such procedure will follow that used in the courts of law. Too informal a procedure can lead to allegations that a party has not had a full opportunity to state its case and respond to the cases of other parties, or that the Board has too much discretion to rule as it pleases, while too formal a procedure leads to complaints of delay and rigidity.

A critical issue in the grant of power to such a board is the degree of deference that it shows to the decisions of state agencies and local governments. In the Sections that follow, different standards of review are employed, depending on the type of decision on appeal. For reviews of proposed comprehensive plans or amendments, for example, the CPAB examines not merely whether the plan is in compliance with statutes, but also the more subjective questions of whether the proposed plan or amendment is compatible with other relevant plans, whether its stated factual bases are correct, and whether the plan is a reasonable response to the circumstances (see Section 7-402.2). In contrast, the CPAB is required to give more deference to the decision of a regional or county planning agency to establish an urban growth area, unless that decision is arbitrary, capricious, or unreasonable (see Section 7-402.3). The CPAB is required to turn a more critical eye to reviews of proposed state capital projects that are contrary to an existing adopted regional or local comprehensive plan (see Section 7-402.4).


7-402.1 Comprehensive Plan Appeals Board

(1) There is hereby created a Comprehensive Plan Appeals Board for the state. The Board shall consist of [number] members for [4]-year terms and shall be composed as follows: [Describe composition, including any special qualification requirements.] [Identify who appoints members, such as governor and/or majority leader of house and senate. Describe manner of initial appointment and appointment to subsequent terms.]. A majority of members of the Board shall constitute a quorum for the conduct of all business by the Board. The Board shall elect a chair from among its members.

(2) The Comprehensive Plan Appeals Board shall have the following powers and duties to:

(a) review Reports Upon Proposed Plans and to approve, reject, or approve in part and reject in part proposed regional and local comprehensive plans and significant amendments, pursuant to Section [7-402.2];

(b) review, upon an appeal by a municipality [or other local governments], determinations of a [regional or county] planning agency regarding the designation of urban growth areas, pursuant to Section [7-402.3];

(c) rule upon petitions by the state, state agencies[,] [and] special districts[, and school districts] to approve proposed significant capital improvement not included in approved regional or local comprehensive plans, pursuant to Section [7-402.4]; and

(d) [add other powers and duties as desired].

(3) The Comprehensive Plan Appeals Board shall adopt, pursuant to the provisions of the [state administrative procedures act], rules of procedure governing practice before it, and such other rules as it deems necessary and appropriate to carry out its responsibilities under this Act.

(4) In all proceedings before the Comprehensive Plan Appeals Board, at least one of the representatives of any party which is a governmental entity shall be an officer, selected by the party, of its planning agency or office, if any.

(5) All proceedings of the Comprehensive Plan Appeals Board shall be open to the public.


Commentary: Approval of Regional and Local Plans by the State

[316]

There is an obvious need to ensure that the plans drawn up by regional and local bodies are in compliance with the statutes and regulations authorizing such plans, and are coordinated with (or at least do not conflict with) any state plans and state agency plans. But by what criteria should a plan be reviewed?

First, the proposed plan must comply with all legal requirements; it must contain all the elements and provisions required by law and be prepared according to the procedural requirements of the enabling statute and regulations. It is fundamental that the governmental unit preparing a plan act within its legal authority in the preparation (procedures) and contents (substance) of the plan.

Second, the plan must be consistent. It must not conflict with itself internally (say, by using different assumptions for different plan elements) or with other relevant state, regional, and neighboring local plans. A local plan that has conflicting elements can result in conflicts in the legislation implementing the plan, or even the inability to enact coherent implementing regulations. The state and regional plans are applicable in the same territory as the local plan, and will typically contain goals and objectives that affect the local plan. Any conflict between the plans will also directly impact residents and land owners in the form of conflicting implementing legislation. Plans of neighboring local governments can be thwarted by contrary provisions in neighboring local plans, as when one community intends an outlying area to consist of low-density residential development but another community designates an area directly adjacent to it for heavy industry.

Last, the plan should be a "good" plan, that is, it must be sound and feasible. A plan may be in complete compliance with all legal requirements, and not conflict in any way with other plans, and yet be an ill-advised and faulty plan when compared against the actual area and population that the plan is to serve. Alternately, there may be inadequate resources to implement the bulk of the plan's proposed initiatives. Such a document is not really a plan — a logical approach to future action — at all but rather an inadequate and flawed document that cannot be the basis for logical action in the future.

The requirement that all plans must be submitted to the state for prior review, with such review having the power to reject a local plan, can be misperceived as mandating or requiring planning, and being incompatible with a law authorizing but not mandating local planning. But there is nothing in requiring approval of local plans that mandates that a local government prepare one, although mandatory planning can also be linked to state approval or certification. The procedure set forth in these Sections is intended to ensure that if a local or regional government plans, then the resulting plan will comply with the enabling statutes and regulations, will not thwart the plans of neighboring local governments and the region in which the local government lies or any overarching plans, goals, or policies of the state, and will be sound and feasible. The basis for this is the notion that a bad plan can very well be worse than no plan at all under certain circumstances, as when a local comprehensive plan: (a) contradicts an element of a state or regional plan; (b) interferes with the goals or implementation of the comprehensive plan of a neighboring local government; or (c) is grossly unrealistic in its premises or in the availability of resources to implement the plan.

Which States Have Review and/or Certification?

The idea of reviewing or certifying local or regional plans is not new. Florida, Georgia, Minnesota, New Jersey, Oregon, Rhode Island, Vermont, and Washington[317] all have such a process in place for some years, as has the United Kingdom[318] since the 1970s. They have built up a reservoir of experience for planning governments elsewhere to draw upon. This experience has shown that a workable plan review and approval or certification process should include: (a) an adequate time period for local plan preparation; (b) review and comment on the submitted local plan by affected state and regional agencies and local governments to the certification agency; (c) an adequate time period for evaluation by the certification agency; (d) a detailed evaluation report by the certification agency with concrete suggestions for improving the submitted plan; (e) an opportunity for the local government to conform its plan to the state evaluation; (f) adequate incentives for the local plan to achieve certification; (g) a certification or approval decision reviewable under a quasi-judicial process; and (h) periodic recertification or reapproval, including certification of amendments.

State agency review, such as that by the state transportation or environmental agencies, is critical if the planning program requires those agency plans to be compatible with a certified local plan, as in Vermont and Rhode Island. Review of local plans by a regional agency (whether a county, regional planning body or otherwise) is essential to adequately address interjurisdictional planning issues (except perhaps in the smallest states) and can also provide assistance to state review that might otherwise be too far removed from local realities. At both the administrative hearing stage and the review stage, the parties that will be affected by the proposed plan must be able to comment upon it. Since the proposed plan is being reviewed for consistency with the existing state, state agency, regional, and local plans, the parties affected by the plan review include the state planning agency, state agencies with strategic plans, the regional planning agency, and the local planning agencies of the adjacent local governments. These same entities should also be able to comment on whether the stated factual bases for the plan are basically correct, as they may have some of the information which contributes to that analysis. In California, a statute[319] requires that cities and counties, prior to adopting proposed plans or significant amendments to plans through their legislative bodies, must refer them to adjoining cities and counties, school districts, areawide planning agencies (if any) federal agencies that will be affected by the proposed plan or amendment, and other specified bodies. These bodies then have 45 days to comment on the proposed plan or amendment. (However, the California statute also specifies that it is merely directive and not mandatory; failure to refer the proposal to the listed entities will not invalidate the adoption of the plan or amendment.)

Which Agency Does the Review?

The agency chosen in most states to review or certify plans is an appointed commission, such as the Oregon Land Conservation and Development Commission[320] or the Vermont Council of Regional Commissions (for regional plans)[321] and Regional Planning Commissions (for municipal plans), assisted by a professional staff. The Director of a state operating agency such as the Florida Department of Community Affairs[322] or the Rhode Island Division of Planning,[323] has also carried out the certification process.

In the procedure created by Section 7-402.2 below, hearing or plan-review officers of the administrative agency would review any proposed plan, check that it complies with the legal requirements, and compare it to the state's plan (or goals for planning if the state does not have a plan as such) and state agency plans. The officer would then be required to make both a finding as to whether the plan is accepted, rejected, or accepted in part and rejected in part, supported by an analysis of the reviewed plan stating why every particular element of the plan was disposed of as it was. The Section authorizes the state planning agency to contract out the initial administrative review to regional planning agencies. This authority to delegate may be preferred by a state with a strong regional planning focus, but should not be used to merely "pass the buck" from the state to a region if that region does not have the necessary resources to perform such reviews.

The first level of this review is conducted by a review officer, who makes a report of his or her findings and submits it to the director of the state planning agency or the regional planning agency if there has been a delegation of the review function. The director makes the actual decision as to whether the proposed plan or amendment is approved, rejected, or approved in part and rejected in part, and states in a written order the decision and the basis for it. If a party to the original review of the proposed plan objects to that order, that party may appeal to the Comprehensive Plan Appeals Board (see above).

The evaluation of a plan is largely a policy question. Whether a proposed plan or amendment is a reasonable one is at least partially subjective. An administrative proceeding should be placed at the beginning of the review process because it can efficiently dispose of routine questions (e.g., whether all the plan elements called for in a statute are present). However, local governments and planning agencies may be concerned about a statute which would require them to submit plans for review by an administrative official whose decision could not be reviewed in depth. Consequently, there should be a policy-focused reviewing board that is able to conduct a fresh de novo review on important issues[324] and that will not be bound by the director's decision.[325]

What Is The Effect of Circumventing the Review Procedure?

A key question is what would be the effect of not submitting the plan for review, or enacting a plan which has been rejected. The most direct method is to make the adoption of such a plan void, to state that any enactment purporting to adopt a rejected or unsubmitted plan does not have the actual power to do so. The "plan," legally, does not exist. But this leads to another issue: what if the local or regional government decides to act in compliance with and in furtherance of their "plan" though it has not been legally adopted as a plan? The solution to that problem is to create a rebuttable presumption that development regulations enacted after the unauthorized "plan" are not reasonable. If the plan is faulty, then enactments that presumably are implementing it are faulty as well.

Some Points on the Review Procedure

The approach in this Legislative Guidebook is that the proposed plan be submitted for approval by the state planning agency after public participation and formal hearings. This is because the draft plan for review should be a version ready to be adopted by the local or regional government. The result is that there is no preset mandatory time period in which the local or regional government must complete the preparation of a plan, as the review process is triggered only when the plan is ready for adoption. Also, if a preliminary draft is submitted for review and approved, and then changed after the public commentary and hearings, then the review will have to occur all over again. If a plan that is ready for adoption is submitted for review, and is approved, then the proposed plan can be adopted and implemented by the local government or regional planning agency without need for further review.

Once the plan is submitted for review, the governmental bodies with an interest in the plan — the state, its agencies, regional planning agencies, local governments in a region, neighboring regions and/or local governments — are granted 60 days to make written comments. The time limit ensures that the plan approval process cannot be brought to a halt by intentionally delaying the submission of a written opinion.

An important component of the approval process is the periodic review of approved plans and reapproval where substantial changes have been made to the plans, or where new state policy requires an additional review. Section 7-402.2 provides for a ten-year period of validity of the approval, after which, if there has been no new proposed plan or amendment, the presumption of reasonableness which attaches to most governmental actions will be reversed. In the meantime, significant amendments to local and regional plans should also be subject to review if they are substantial enough to warrant review, as they are in these Sections. What constitutes a "significant" or "substantial" amendment is left to be determined by administrative rule making.

Alternative Self-Review Procedure

The procedure set forth in the Section below authorizes the review of local or regional comprehensive plans and significant amendments by the state. However, concerns over local autonomy as well as the sheer administrative burden of the state reviewing every proposed plan and significant amendment of every local government and regional planning agency may cause some states to prefer a more streamlined, locally-focused, procedure. If desired, the Section below can be easily modified by any state adopting it to an alternative, self-review and approval procedure. Such a procedure for the self-evaluation of proposed plans, based upon a checklist, is applied by the member governments of the San Diego Association of Governments (SANDAG) in ensuring that their plans are consistent with the SANDAG Regional Plan.[326]

Under such an arrangement, the local government or regional planning agency would submit a copy of the proposed plan or amendment to the various governmental units and others — the same relevant parties as in the regular version of the Section — for comment. However, instead of submitting the proposed plan or amendment to the state for review, the local government or the regional planning agency would evaluate the proposed plan or amendment for compliance, consistency, soundness and feasibility, which are the plan approval criteria in Section 7-402.2(4). In evaluating its proposed plan or amendment, the planning government would employ a detailed checklist (with supporting guidance) created by the state planning agency.

As the state itself must under this Section, the local government or regional planning agency would then produce a report recommending the acceptance or rejection of the plan or amendment and stating the reasons for the recommendation. Additionally, the report would have to include a completed checklist. If the report recommended rejection, then the plan or amendment cannot be adopted. If the recommendation is to accept the plan or amendment, with due notice being given to all relevant parties, and no one objects within 30 days (or some other period), then the plan or amendment can be adopted by the local government or regional planning agency and it will be presumed valid in the face of any legal challenge. If acceptance were recommended and any relevant party disagreed, that party could initiate a review of the local or regional plan and report by petitioning the Comprehensive Plan Appeals Board as under the present version of the Section. External formal review of the plan or amendment can thus be limited to cases where there is a serious dispute, rather than in every case.

Thus, in order to create a self-review procedure from Section 7-402.2:

(a) eliminate paragraphs (6) and (8) (they are unique to an external state review and are not needed in a self-review);

(b) amend paragraphs (7) through (11) to have the plan review conducted by the local planning agency or regional planning agency, and not a state review officer, in the manner described above;

(c) add a new paragraph authorizing the state planning agency to create the checklist and promulgate related administrative rules and requiring the planning governments to apply the checklist and related rules to their proposed plans and amendments; and

(d) leave intact the initial paragraph of (12), but omit subparagraphs (a) to (e). In addition the remaining parts of the Section can be left as is, but all references to "Order" should be changed to "Report."


7-402.2 Review and Approval of Regional and Local Comprehensive Plans and Significant Amendments

(1) No regional or local comprehensive plan, or significant amendment thereto, may be adopted by a [regional planning agency], local government, special district, or school district pursuant to Sections [6-303], [6-305], or [7-403] unless it has first been reviewed under the procedures of this Section and approved thereunder, either in whole or in part.

(2) The purposes of this Section are to:

(a) ensure that the proposed comprehensive plan or amendment is in compliance with this Act and any rules thereunder;

(b) ensure that the state and its agencies, the region, contiguous regions and contiguous local governments, and other interested parties, being affected by the proposed comprehensive plan or amendment, have an opportunity to comment upon it;

(c) ensure that the proposed comprehensive plan or amendment does not conflict with the plans and capital improvements of the state and its agencies, the region, contiguous regions, and contiguous local governments, so that when plans are implemented by different governmental units, the effects shall reinforce each other;

(d) ensure that the stated facts and findings which are the basis of the proposed comprehensive plan or amendment are substantially correct; and

(e) ensure that the proposed comprehensive plan or amendment is a proper response to the facts and findings which are the stated basis of the proposed comprehensive plan or amendment.

(3) For purposes of this Section:

(a) "planning government" refers to the [regional planning agency] proposing the regional comprehensive plan or significant amendment, or the local government proposing the local comprehensive plan or significant amendment.

(b) what constitutes a "significant amendment" shall be defined by rule of the [state planning agency].

(4) A proposed plan or significant amendment shall be approved pursuant to this Section if every element thereof is compliant, consistent, sound, and feasible. It shall be rejected if, in consideration of all its parts, it is not compliant, consistent, sound, and feasible. It shall be approved in part and rejected in part if one or more elements thereof is not compliant, consistent, sound, and feasible but the plan or significant amendment, in consideration of all its parts, tends to be compliant, consistent, sound, and feasible.

(a) A proposed comprehensive plan or significant amendment thereto, or a particular element of the same, is compliant when it conforms with the requirements of this Act [,] [and] any rules enacted thereunder[, and any ordinance or charter requirement that otherwise affects the preparation of comprehensive plans by the planning government.]

(b) A proposed comprehensive plan or significant amendment thereto, or a particular element of the same, is consistent when its goals, policies, and program of implementation would further, or at least would not interfere with, the goals, policies, and program of implementation of:

1. other elements of the same proposed comprehensive plan or significant amendment thereto;

2. the plans of the state including [list plans];

3. the capital improvements of the state, its agencies [,] [and ] special districts [, and school districts];

4. if the planning government is a [regional planning agency], the approved regional comprehensive plans of the contiguous regions and the approved local comprehensive plans of the local governments which are located in the region; and

5. if the planning government is a local government, the approved regional comprehensive plan for the region in which the local government is located and the approved local comprehensive plans of the contiguous local governments.

(c) A proposed comprehensive plan or significant amendment thereto, or a particular element of the same, is sound when both:

1. the findings of facts, statistics, and other information stated to be the basis of the proposed comprehensive plan or significant amendment thereto are substantially correct and substantially reflect the circumstances facing the planning government, the [regional planning agencies] and local governments which are contiguous with it or which are located in it, and the state; and

2. the goals and the policies of the proposed comprehensive plan or significant amendment thereto are an appropriate response to the findings of facts, statistics, and other information stated to be the basis of the proposed comprehensive plan or significant amendment.

(d) A proposed comprehensive plan or significant amendment thereto, or a particular element of the same, is feasible when sufficient authority and resources, including but not limited to finances, personnel, and facilities, exist to carry out the program of implementation in the proposed comprehensive plan or significant amendment thereto, or a particular element of the same.

(5) After the completion of the preparation of a proposed comprehensive plan or significant amendment thereto, and upon the completion of the procedures and hearings required by Section [6-301] or [7-401], the planning government shall, for purposes of obtaining comments pursuant to paragraph (8) below, submit, within [30] days, copies of the proposed comprehensive plan or significant amendment to:

(a) the director of the [state planning agency], who shall then send a copy of the proposed comprehensive plan or significant amendment to the director of each state agency that has adopted a strategic plan pursuant to Section [4-202];

(b) the chief executive officer of each special district and school district that has any territory located within the planning government;

(c) if the planning government is a [regional planning agency], the director of the [regional planning agencies], if any, for all contiguous regions;

(d) if the planning government is a [regional planning agency], the chief executive officer of each local government that is located in the region;

(e) if the planning government is a local government, the director of the [regional planning agency], if any, for the region in which the local government is located;

(f) if the planning government is a local government, the chief executive officer of each contiguous local government[.][, and]

(g) [other interested parties].

— "Other interested parties" can be whomever the state legislature decides should have a role in the review of local comprehensive plans and amendments. This may include individual citizens or taxpayers, nonprofit advocacy groups, neighborhood or community organizations, and any other nongovernmental organizations.

(6) If two or more planning governments are proposing the same element or significant amendment to their comprehensive plans, then, at the option of the planning governments, they may submit the common proposed element or significant amendment jointly, and for purposes of this Section the proposed element or significant amendment shall be treated as a single amendment, and the planning governments shall be treated as a single planning government except for the purposes of the time limitation set forth in paragraph (23) below. This, however, shall not preclude the rejection of the proposed element or amendment as to one planning government and its approval as to another, applying the requirements of paragraph (4) above.

(7) The director of the [state planning agency] shall, within [10] days of receipt of the proposed comprehensive plan or significant amendment, select a review officer to conduct the review. The review officer may, but need not, be an employee of the [state planning agency]. The director of the [state planning agency] shall notify in writing the planning government and the other parties identified in paragraph (5) above within [5] business days of the appointment of a review officer of the name of the review officer and the address and telephone number at which he or she may be reached during business hours.

(8) The [state planning agency] may enter into an agreement with any [regional planning agency] to perform the review mandated by paragraph (10) below for proposed local comprehensive plans or significant amendments by local governments of the respective regions, but shall not so contract with any [regional planning agency] unless that [agency] has sufficient professional planning staff to perform said reviews at least as efficiently as the [state planning agency]. When such an agreement has been entered into with a [regional planning agency], the [regional planning agency] shall select a review officer and make the notification thereof, as provided in paragraph (7) above, and the director of the [regional planning agency] shall perform the duties of the director of the [state planning agency], but in all other ways the provisions of this Section applicable to review shall apply equally to reviews performed by the [state planning agency] and by [regional planning agencies].

(9) Upon receipt of the notice required by paragraph (7) above, the parties so notified, with the exception of the planning government may, within [60] days, submit to the review officer and all parties identified in paragraph (7) above a written opinion upon the proposed comprehensive plan or significant amendment, stating any comments thereon, objections thereto, or criticisms thereof. The [state planning agency], [regional planning agencies], and the local governments in consultation with their planning agencies, shall include in their opinions a statement as to whether or not the proposed comprehensive plan or significant amendment is consistent with their state, regional or local plan and whether or not it is sound.

(10) The review officer shall review the proposed plan or significant amendment and the written opinions thereon, and shall determine whether or not the proposed comprehensive plan or significant amendment meets the requirements of paragraph (4) above.

(11) After conducting the review, the review officer shall, within [30] days of date upon which the last opinion was due to have been received by him or her, produce a written Report Upon the Proposed Plan (or Amendment).

(a) Such Report shall state whether the proposed plan or significant amendment should be approved, rejected, or approved in part and rejected in part, in the latter instance specifying which elements should be rejected. When the Report suggests that a proposed plan or significant amendment should be rejected, or approved in part and rejected in part, it shall include, for each element thereof rejected, a statement of how that element does not meet the requirements of paragraph (4) above. The Report may also include recommendations of how the rejected element or amendment may be revised to meet the requirements of paragraph (4) above .

(b) Such Report shall include the proposed plan or significant amendment and all opinions in the Appendix thereto.

(12) The Report shall, within [5] days of its completion, or of the date upon which it is required by this Section to be completed, be transmitted to the parties referred to in paragraph (7) above and submitted to the director of the [state planning agency].

(a) The director shall review the proposed comprehensive plan or significant amendment and shall determine whether or not it meets the requirements of paragraph (4) above.

(b) The director, in conducting the review, shall read the Report, including the opinions submitted pursuant to paragraph (9) above, but shall not be bound thereby in making the determination required by paragraph (4). The review shall be de novo and shall not defer to the Report.

(c) Within [15] days of receiving the Report, the director shall issue a written Order, approving, rejecting, or approving in part and rejecting in part the proposed comprehensive plan or significant amendment. The Report shall be attached to and incorporated within the Order as an appendix.

(d) If the Order differs from the Report in its conclusions or findings, the director shall specify in the Order how and why the Order differs from the Report, and if the Order rejects, or approves in part and rejects in part different elements or for different reasons than the Report, it shall include, for each element thereof rejected, a statement of how that element does not meet the requirements of paragraph (4) above. The Order may also include recommendations of how the rejected element or amendment can be revised to meet the requirements of paragraph (4) above.

(e) Within [5] business days of issuing the Order, the director of the [state planning agency] shall transmit a copy of the same to all of the parties referred to in paragraph (7) above.

(13) If any of the parties referred to in paragraph (7) above, upon receipt of the Order, have any objections to or criticisms of the Order, they may, within [30] days of the transmission of the Report, commence a review of the Order by the Comprehensive Plan Appeals Board. A review of an Order by the Comprehensive Plan Appeals Board shall be commenced by submitting a copy of the Order to the Chairperson of the Comprehensive Plan Appeals Board and by submitting a notice that the same was done to all parties referred to in paragraph (7) above.

(14) If no review of the Order is commenced within [30] days of the transmission of the Order, then, any time after the [thirtieth] day:

(a) A proposed plan or significant amendment that is approved may be adopted by the planning government and, if it is a regional comprehensive plan or significant amendment, by the local governments, special districts, and school districts in the region.

(b) A proposed plan or significant amendment that is approved in part and rejected in part may be adopted, but only to the extent of the approval, by the planning government, and the bodies referred to in subparagraph (a) above if the planning government is a regional planning agency.

(c) Any purported adoption by a [regional planning agency], local government, special district, or school district of a proposed plan, element, or significant amendment thereof, which is rejected shall be void.

(d) A comprehensive plan or significant amendment that is adopted shall enjoy a rebuttable presumption of validity, to the extent of the adoption, in any judicial or administrative proceeding in which the invalidity of the plan or amendment is asserted by any party.

(15) The Comprehensive Plan Appeals Board, shall, within [15] days of the commencement of the review of an Order, set a date, time, and place for a hearing on said review, and shall commence a hearing on the date and time and at the place so set.

(a) All parties referred to in paragraph (7) above shall be notified in writing of the hearing within [30] days before the hearing.

(b) At least [30] days before the date of the hearing, the Board shall give notice to the public of the date, time, place, and purpose of the hearing by publication in a newspaper of general circulation in the territory of the planning government. The Board may also give such notice, which may include a copy of the draft plan or amendment, by publication on a computer-accessible information network or other appropriate means.

— The hearing contemplated by paragraph (15) is open to the public. However, the only parties who may participate are those referred to in paragraph (7) above because they are the only parties with standing.

(16) The Comprehensive Plan Appeals Board may, in addition to the evidence gathered at the hearing, consult any publicly available source of demographic, economic, land supply, land demand, or other data in making its determination, as well as the plans of the state, [regional planning agencies], and local governments.

(17) The Comprehensive Plan Appeals Board shall determine whether or not the proposed comprehensive plan or significant amendment meets the requirements of paragraph (4) above. It shall review the proposed comprehensive plan or significant amendment in light of the comments, objections, and criticisms and of the Order, but shall not be limited or bound thereby in making its determination. The evaluation of the proposed comprehensive plan or significant amendment by the Comprehensive Plan Appeals Board shall be de novo and shall not defer to the Order.

(18) The Comprehensive Plan Appeals Board shall, within [30] days of the last session of the hearing required by paragraph (15) above, produce a Review of the Order. Such Review shall state whether the proposed plan or significant amendment is approved, rejected, or approved in part and rejected in part, in the latter instance specifying which elements are rejected. When the Review rejects a plan or proposed significant amendment, or approves it in part and rejects it in part, it shall include, for each element thereof rejected, a statement of how that element was not compliant, consistent, sound, and feasible, as applicable. The Review may also include recommendations of how the rejected element or amendment can be revised to meet the requirements of paragraph (4) above. This recommendation may also include suggestions for mediation. Said Review shall include the Order, all testimony and evidence from the hearing, and all data and plans consulted pursuant to paragraph (16) above, if any, in the Appendix thereto.

— Conceivably a Comprehensive Plan Appeals Board could mediate disputes itself. However it may also recommend the disputes be mediated by a third party. This will depend on the preferences of the Board, the Board's workload, and the parties to the appeal.

(19) The Review shall, within [5] days of its completion, or of the date upon which it is required by this Section to be completed, be transmitted to the parties referred to in paragraph (7) above.

(20) Within [30] days of the transmission of the Review, any party referred to in paragraph (7) above may appeal the decision of the Comprehensive Plan Appeals Board to the [trial-level] Court for the relevant county in the manner set forth in the [Code of Civil Procedure] for judicial review.

(21) If no judicial review of the Review is commenced within [30] days of the transmission of the Order, then, any time after the [30th] day the planning government may adopt the comprehensive plan or significant amendment in the manner and to the extent provided in paragraph (14) above, as applicable, and the adopted comprehensive plan or amendment shall be presumed valid in the manner and to the extent provided in subparagraph (14)(d) above.

(22) The enactment by a [regional planning agency] or local government of any ordinance, referendum, or measure purporting to adopt a comprehensive plan without submitting the same to the review procedure mandated by this Section, or purporting to adopt a comprehensive plan when such adoption is in violation of the provisions of this Section, shall constitute a rebuttable presumption that any development regulations adopted subsequent to said enactment may no longer be reasonable.

(23) If [10] years pass from the adoption of a comprehensive plan or significant amendment thereto without the submission of a new proposed comprehensive plan or significant amendment for review under this Section, then this shall constitute a rebuttable presumption that any development regulations adopted by the [regional planning agency] or local government subsequent to said adoption may no longer be reasonable, with such presumption commencing only after the [10th] year.

(24) Upon the approval and lawful adoption of a proposed plan or significant amendment thereto, no state agency [,or] special district [,or school district] shall engage in any significant capital improvement, as that term is defined in Section [7-402.4], anywhere within a [regional planning agency]'s or local government's jurisdiction which is not described in and not included in the comprehensive plan, as amended, of that [agency] or local government, except as provided in Section [7-402.4].


Commentary: Appeal of Urban Growth Area Designation

Section 7-402.3 provides for an appeal to the Comprehensive Plan Appeals Board by a municipality (or other local government) of a regional or county planning agency's written determination of a designation of an urban growth area in a regional comprehensive plan. The appeal would occur when the municipality is unable to reach agreement with the agency over the location and extent of the urban growth area and has also employed any procedures for dispute resolution.

Under the procedures, the municipality files a petition with the Comprehensive Plan Appeals Board. The regional or county planning agency, as well as other governmental units, may respond to the petition. The Board holds a hearing on the petition and then issues a ruling on the matter. If the Board determines the procedures in Section 6-201.1(5), which sets forth the steps involved in establishing the urban growth area, have not been followed but that the written determination of the agency is not arbitrary, capricious, or unreasonable, it can remand the matter to the county or regional planning agency with instructions to comply. If it finds that the written determination of the agency is arbitrary, capricious, or unreasonable, it then approves the petition and rejects the designation.

If the Board rejects the petition, then, after a period in which appeal of its decision to a trial-level court in the state may occur, the regional planning agency, municipalities, and other local governments are to incorporate and adopt the proposed urban growth area as part of their plans.

Note that the Board does not have the authority to negotiate a disputed urban growth area among the parties. Under Section 6-201.1, that is the province of the regional or county planning agency, municipalities, and other local governments. Rather, the Board's authority is to determine whether the correct procedures have been followed and substantive criteria have been met, and whether the designation of the boundary is reasonable. Under Section 7-402.3(9)(b), the Board does have the authority to recommend ways in which the urban growth area may be modified to meet the requirements of the Act, but the actual resolution of a dispute over growth area designation would instead occur by action of the parties to that dispute. While the parties would not necessarily be bound by the recommendations, following the Board's suggestions is the fastest route to achieving compliance.

If a local government refused to incorporate an approved urban growth area in its local comprehensive plan, its plan would not be approved by the state. A local government that consistently fails to obtain state approval of its local comprehensive plan would be subject to the loss of certain state funds pursuant to Section 7-402.5 below.


7-402.3 Appeal of Determination Regarding Urban Growth Area Designation

(1) Any municipality [or other local government] may appeal the written determination of a [regional or county planning agency] designating a proposed urban growth area pursuant to Section [6-201.1(5)(e)] by filing a petition with the Comprehensive Plan Appeals Board.

(2) The petition shall contain:

(a) a copy of the written determination of the [regional or county planning agency] made pursuant to Section [6-201.1(5)(e)];

(b) a map drawn to an appropriate scale showing the proposed urban growth area that is the subject of the appeal;

(c) a copy of the proposed [regional comprehensive plan] or amendment of which the proposed urban growth area is part;

(d) a statement regarding how the proposed urban growth area does not satisfy the requirements of paragraph (8) below; and

(e) any other relevant information or analyses.

(3) Within [5] days of filing of the petition with the Board, the municipality [or other local government] shall send a copy of the petition to:

(a) the director of the [regional or county planning agency];

(b) the chief executive officer of all local governments in or adjacent to the proposed urban growth area;

(c) the chief executive officer of all other municipalities in the [region or county]; and

(d) [other interested parties].

(4) Within [30] days of receiving the petition, any party designated in paragraph (3) above may file with the Board a response to the petition, which may include:

(a) a statement regarding how the proposed urban growth area does not satisfy the requirements of paragraph (8) below; and

(b) any other relevant information or analyses.

(5) Within [10] days of receiving the last response to the petition, or [45] days from the filing of the petition at the latest, the Board shall set a date, time, and place for a hearing on the appeal, and shall commence a hearing on the date and time and at the place so set.

(a) All parties referred to in paragraph (3) above, as well as the municipality [or other local government] filing the petition, shall be notified in writing of the hearing within [30] days before the hearing.

(b) At least [30] days before the date of the hearing, the Board shall give notice to the public of the date, time, place, and purpose of the hearing by publication in a newspaper of general circulation in the [region or county]. The Board may also give such notice, which may include a copy of the petition and supporting documents, by publication on a computer-accessible information network or other appropriate means.

(6) The Comprehensive Plan Appeals Board may, in addition to the evidence gathered at the hearing, consult any publicly available source of demographic, economic, land supply, land demand, or other data in making its determination, as well as the plans of the state, [regional planning agencies], and local governments.

(7) Within [30] days of the completion of the hearing mandated by paragraph (5) above, the Comprehensive Plan Appeals Board shall rule upon the petition. The Board shall either approve the petition, remand the petition, or reject the petition, as provided in paragraph (9) below. The Board shall, within [5] days of ruling on the petition, notify in writing the parties referred to in subparagraph (5)(a) above of its decision and shall include in said writing the legal and factual bases for its decision, including any data or plans consulted pursuant to paragraph (6) above.

(8) The Comprehensive Plan Appeals Board shall, in ruling upon the petition, find in writing whether or not:

(a) the procedural requirements of Section [6-201.1(5)], including the procedures for dispute resolution, have been complied with;

(b) the criteria of Section [6-201.1(6)] and, as applicable for any new fully contained community, Section [6-201.1(8)], have been satisfied, and the sequence of Section [6-201.1(7)] has been adhered to; and

(c) the written determination by the [regional or county planning agency] pursuant to Section [6-201.1(5)(e)] is arbitrary, capricious, or unreasonable.

(9) If the Board finds that:

(a) the requirements of subparagraph (8)(a) have not been satisfied, but finds that the requirements of subparagraphs (8)(b) and 8(c) above have been satisfied, then it shall remand the matter to the [regional or county planning agency] with instructions to comply with the requirements of subparagraph (8)(a);

(b) the requirements of subparagraphs (8)(b) and/or 8(c) have not been satisfied, whether or not the requirements of subparagraph (8)(a) have been satisfied, then it shall approve the petition and shall include, with its findings, recommendations of how the urban growth area that is the subject of the petition may be revised to meet the requirements of subparagraphs (8)(b) and (8)(c); or

— It is recommended that the Board be given the authority to suggest how the urban growth may be revised to satisfy the statutory requirements (assuming all dispute resolution options have been exhausted). If the Board states how a disapproved urban growth area can be changed so that it would be approved, the process of obtaining approval of the urban growth area is streamlined. This is because the parties do not have to guess or surmise what changes are needed and do not have to develop an acceptable urban growth area by trial and error.

(c) the requirements of subparagraphs (8)(a), (8)(b), and (8)(c) have been satisfied, then it shall reject the petition.

(10) Within [30] days of the notification required by paragraph (7) above, any party referred to in paragraph (5)(a) above may appeal the decision of the Comprehensive Plan Appeals Board to the [trial-level] Court for the relevant county in the manner set forth in the [state administrative appeals act or code of civil procedure] for judicial review.

(11) If the Board approves the petition, then the enactment by a [regional or county planning agency] or municipalities [and other local governments] of any ordinance, referendum, or measure purporting to adopt or otherwise implement the urban growth area that is the subject of the petition shall be void and shall constitute a rebuttable presumption that any development regulations adopted subsequent to said enactment may not be reasonable.

— As noted, if the Board approves the petition and therefore rejects the disputed urban growth area, it is obligated to recommend those changes to the growth area that are necessary to ensure compliance with the statute. This will prevent the designation process from becoming an endless cycle of proposals and rejections. Until the growth area designation is resolved, however, state approval of local comprehensive plans that are directly affected by the proposed growth area cannot be completed, and some type of conditional approval will be necessary. The Legislative Guidebook provides, in Section 7-402.2, that the state may approve parts of a comprehensive plan and reject others.

(12) If the Board rejects the petition, then, after [30] days from the notification required by paragraph (7) above, the [regional or county planning agency] and the municipalities [and other local governments] in the urban growth area that is the subject of the petition shall incorporate and adopt the proposed urban growth area pursuant to Section [6-201.1(5)(d)] as if the urban growth area were approved by agreement.


Commentary: Procedures for Authorizing State and Special District Projects Not Included in Approved Regional or Local Comprehensive Plans

An advantage to state approval of a regional or local comprehensive plan is that once the approved plan is adopted, then no state agency, special district, or school district (if the state legislature decides to include school districts in the process) may construct a capital improvement that is not included in and described in the plan (see Section 7-402.2(24)). The intention of such a requirement is to ensure that such agencies or districts take seriously the review process for the plan. It is also meant to encourage the agencies or districts to ensure that their own projects are incorporated into the plan and that the projects mesh with the development objectives of the regional planning agency or local government.

However, circumstances may arise where, despite best efforts, a capital improvement has not been included in a regional or local plan. This may be the result of timing — where a plan has recently been approved and the next update is several years away. Alternately, it may be the result of a new opportunity for funding, where, for example, federal monies are available for a short period of time to provide matching funds for the project. Sometimes the project will simply be omitted inadvertently.

The following procedure is intended to provide a mechanism by which such large-scale or significant capital improvements that were not described and included in a plan may be constructed nonetheless. Under this procedure, which is based in part on a Rhode Island statute,[327] the state agency, special district, or school district petitions the Comprehensive Plan Appeals Board for approval of the capital improvement. Notices are sent to the regional or county planning agency or the local government in which the capital improvement is proposed, who may file a written response to the petition. A hearing is held and the Board must determine, in approving the petition, whether the project satisfies three criteria, among them, whether the proposed capital improvement has been planned to, and in fact does, vary as little as possible from the regional or local comprehensive plan, or, if it does vary, the manner in which it departs is insignificant.

The nature of the review is such that it will encourage state agencies, special districts, and school districts to meet with the regional planning agency or local government to resolve any questions or concerns about the proposed capital improvement, in order to ensure subsequent approval of the proposed capital improvement by the Board. One consequence may be that these agencies and districts will instead attempt to ensure that their capital improvements are contained in local comprehensive plans so that the procedure in Section 7-402.4 need not be employed.


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

(1) Any state agency [,][or] special district[, or school district] that proposes to construct a significant capital improvement within a [regional planning agency]'s or local government's jurisdiction that is not described as a capital improvement and included in the comprehensive plan of that [agency] or local government, approved pursuant to Section [7-402.2] may do so only with the approval of the Comprehensive Plan Appeals Board in accordance with this Section. What constitutes a "significant capital improvement" shall be defined by rule of the [state planning agency].

— The state planning agency is given the authority to define "significant capital improvements" that will be subject to this review, with the purpose of exempting small projects, such as resurfacing, minor additions to public buildings, and repair and replacement of facilities that have minimal impact on facility capacity. If it is desired, capital improvements of school districts may be omitted from regional comprehensive plans and therefore, by eliminating the relevant bracketed language, would not be subject to the review process described in this Section.

(2) The purposes of this Section are to:

(a) ensure coordination between state agencies[,] [or] special districts[, or school districts] and regional planning agencies and local governments in the construction of significant capital improvements that have not previously been described and included in a regional or a local comprehensive plan; and

(b) provide a mechanism for review of such significant capital improvements that balances the need to promote or protect the public health, safety, and welfare of the people of the state[,] [and the] special district[, and school district] with the interests of the region and the local government.

(3) A state agency[,] [or] special district[, or school district] that proposes to construct a significant capital improvement that is not described and included in the comprehensive plan of a [regional planning agency] or local government which has been approved pursuant to Section [7-402.2] shall petition the Comprehensive Plan Appeals Board in writing for approval of such capital improvement, which petition shall set forth:

(a) a description of the significant capital improvement that includes:

1. the location, such as lot or parcel number, street address, or other relevant method of determining location, such as descriptions of rights-of-way and easements;

2. the type, use, or purpose of the project, including the number of persons to be served by the project;

3. the size of the project, including the acreage of the land, and any descriptions of buildings, including their square footage;

4. the year(s) of construction of the capital improvement; and

5. the cost of the project, including construction, design, and engineering.

(b) a statement explaining why the proposed significant capital improvement is needed to promote or protect the health, safety, and welfare of the people of the state; and

(c) a statement explaining how the proposed significant capital improvement has been planned to, and in fact does, vary as little as necessary from the comprehensive plan of the [regional or county planning agency] or the local government, or how the manner in which it varies is insignificant.

(d) a statement in writing from the [regional planning agency] or local government that confirms that the significant capital improvement is not described in and is not included in the comprehensive plan of the region or local government.

(4) A copy of the petition shall be sent by the petitioning state agency[,] [or] special district[,or school district] to:

(a) the director of the [state planning agency];

(b) the director of the [regional or county planning agency], if any, for the region(s) in which the significant capital improvement is proposed;

(c) the chief executive officer of the local government(s) in which the significant capital improvement is proposed; and

(d) [other interested parties].

(5) The parties so notified shall have [30] days to file a written response to the petition with the Comprehensive Plan Appeals Board and shall transmit a copy to all other parties so notified as well as the petitioner.

(6) Within [15] days of the filing of the petition with the Comprehensive Plans Appeals Board, the Board shall set a date, time, and place for a hearing on said review, and shall commence a hearing on the date and time and at the place so set. At least [30] days before the date of the hearing, the Board shall provide written notice of the hearing on the petition to the petitioning state agency[,] [or] special district[, or school district] and to the parties listed in paragraph (4) above as well as by publication in a newspaper of general circulation in the area of the [regional planning agency] or local government that is the site for the proposed significant capital improvement. It may also give notice, which may include a copy of the petition and supporting documents, by publication on a computer-accessible information network or other appropriate means.

(7) The Comprehensive Plan Appeals Board may, in addition to the information presented at the hearing or as part of the petition, consult any publicly available sources of demographic, economic, land supply, land demand, or other data in making its determination as well as plans of the state, its regional planning agencies, and its local governments.

(8) Within [30] days of the hearing, the Comprehensive Plan Appeals Board shall make its decision on the petition. The decision shall be in the form of a written opinion stating whether the project is approved, approved with reasonable conditions, or rejected and the manner or extent to which the proposed significant capital improvement does or does not comply with the requirements of paragraph (9) below. The written opinion shall be transmitted, within [10] days of its issue, to the petitioning state agency[,] [or] special district[, or school district] and to the parties referred to in paragraph (4) above.

(9) No such petition shall be approved by the Comprehensive Plan Appeals Board unless the Board determines that:

(a) the proposed significant capital improvement is consistent with an adopted plan of the state[,] [or] special district [,or school district];

(b) the proposed significant capital improvement is needed to promote or protect the health, safety, and welfare of the people of the state; and

(c) the proposed significant capital improvement has been planned to, and in fact does, vary as little as necessary from the comprehensive plan of the [regional or county planning agency] or the local government or the manner in which it varies is insignificant, in the opinion of the board.

(10) Within [30] days of receipt of the written opinion, the petitioning state agency[,] [or] special district[, or school district], or any of the parties referred to in paragraph (4) above may appeal the decision of the Comprehensive Plan Appeals Board to the [trial-level] court for the relevant county in the manner set forth in the [administrative appeals or review act or code of civil procedure] for judicial review.


Commentary: Financial Incentive to Prepare New Plan

In a state that mandates local planning (or regional planning agency), how do you induce local governments (or regional planning agencies) to prepare plans, apart from providing direct funds to do so? If a local government or regional planning agency simply refuses to prepare a comprehensive plan or repeatedly prepares a plan that does not meet state standards, what recourse is there? A number of states authorize, as a last resort, the withholding of discretionary and nondiscretionary grant funds for local governments that are not in compliance with the state planning statutes.

In Florida, if the state Administrative Commission (the administrative hearing body) finds that a comprehensive plan or plan amendment is not in compliance with the Local Government Comprehensive Planning and Land Development Regulation Act, then the Commission must specify remedial action which would put the plan or amendment in compliance, and also may direct state agencies not to provide funds for the expansion of roads, bridges, water and sewer systems in the local government whose plan is not in compliance.[328] It may also declare the local government ineligible to receive Small City Community Development Block Grants, Recreation Development Assistance Program funds, state revenue sharing, and grants under the coastal management program (if it is the coastal management element of the plan which is in non-compliance.

Oregon authorizes the Land Conservation and Development Commission to withhold grant funds from a local government that is in non-compliance with state planning goals, and it may have the local government's share of state-shared revenues withheld by the amount of state planning grants already received, with the Commission empowered to retain a portion of the withheld funds to cover costs.[329] This power is part of the Commission's general power to order local governments, state agencies, and special districts to bring comprehensive plans (and land use regulations and decisions) into compliance with state goals, which it may exercise only after due notice and a hearing.[330]

In Washington,[331] the governor may reduce a city or county's appropriations, cut off a county or city's road-fund distributions and its share of certain state-collected sales, use, and liquor tax revenues, or rescind the county or city's ability to collect real estate excise taxes, if a growth management hearings board finds after a hearing that the county or city is not compliant and the governor makes findings that the noncompliance is due to bad faith or unreasonable delay. These sanctions may be applied for failing to adopt a comprehensive plan and for failing to designate urban growth areas or critical areas or to enact regulations protecting critical areas. Washington's approach may be too harsh, in that it allows the governor to cut off not only grant funds but also basic tax revenue that the state happens to collect on behalf of a city or county. It may be at the same time too lenient, in that there are two levels of fact-finding before a county or city can be sanctioned for the easily-proven fact that it did not produce a comprehensive plan by a given deadline.

In Tennessee, in counties and municipalities that do not have "growth plans" that have been approved by statutorily created local planning advisory committees, certain state grants for housing, infrastructure, tourism, and job training, as well as federal transportation and community development funds are to remain "unavailable" until the plans are approved.[332]

An alternative approach is that of Rhode Island. When that state enacted its Comprehensive Planning and Land Use Regulation Act in 1988,[333] it required that existing comprehensive plans had to be brought into compliance with the provisions of that Act by a specific date, either by amending an existing plan or proposing a new one.[334] It also provided that comprehensive plans must be updated at least once every five years, but with the proviso that comprehensive plans could not be amended more than four times in a calendar year.[335] There is no loss of grant money or other penalty if a local government fails to timely submit a plan for approval under the Act which is ultimately approved. However, in such an instance, the director of administration will prepare, and the comprehensive plan appeals board will adopt, a plan for that municipality without its approval, subject to appeal by the municipality to the state supreme court.[336]

The following Section authorizes the governor to direct the withholding of state funds from regional planning agencies (if the act applies to them) and local governments that do not prepare required comprehensive plans or prepare plans that do not meet state standards (presuming that there is a state review and approval process that determines whether the plan is in compliance with state requirements). Paragraph (3) of this Section provides a "warning period": if a regional planning agency or local government doesn't submit a proposed plan within four years of the effective date of this Act or within nine years of the approval of its most recent comprehensive plan or significant amendment under the Act, it will receive a written notice from the state planning agency, and will have one more year to comply before grant funds may be cut off, if the governor so decides. Under paragraph (5), eligibility for receipt of such grant funds is automatically restored when the regional planning agency or local government submits a plan or amendment that is then approved by the state.


7-402.5 Submission of Plans Under This Act; Withholding of Grant Money

(1) If any [regional planning agency] or local government does not submit a proposed comprehensive plan to the [state planning agency] for approval under Section [7-402.2] of this Act, with such proposed comprehensive plan then being approved [, or approved in part and rejected in part,] within [5] years of the effective date of this Act, then the [state planning agency] shall notify the governor in writing of the failure of that [regional planning agency] or local government to submit a proposed comprehensive plan for approval within the [5]-year period.

(2) If any [regional planning agency] or local government does not submit a proposed comprehensive plan or significant amendment thereto to the [state planning agency] for approval under Section [7-402.2] of this Act, with such proposed comprehensive plan then being approved [, or approved in part and rejected in part,] within [10] years of the most recent approval of a comprehensive plan or significant amendment by that [regional planning agency] or local government, then the [state planning agency] shall notify the governor in writing of the failure of that [regional planning agency] or local government to submit a proposed comprehensive plan or significant amendment for approval within the [10]-year period.

— Paragraph (1) of this Section applies to submission of regional or local comprehensive plans for initial approval. Paragraph (2) applies to submission of plan revisions or amendments after initial approval — the requirement that plans be periodically updated. The ten-year time limit for updates is consistent with Section 7-406 on periodic revision of plans. In either case, failure of a regional planning agency or local government to submit a proposed plan or amendment for review and approval means that the state planning agency must notify the governor of this fact.

(3) If [4] years of the [5]-year period established by paragraph (1) above, or [9] years of the [10]-year period established by paragraph (2) above, elapse for any [regional planning agency] or local government, and the [agency] or local government does not submit a proposed comprehensive plan or significant amendment thereto, then the [state planning agency] shall notify in writing the chief executive officer of that [agency] or local government of the provisions of this Section.

(4) Upon the receipt of the notice referred to in paragraphs (1) and (2) above, the governor may declare the [regional planning agency] or local government named in the notice ineligible to receive funds under the following grant programs: [list grant programs and statutory citations]. The governor's declaration shall render the named [regional planning agency] or local government ineligible to receive funds under those grant programs enumerated in the declaration.

(5) Eligibility to receive said funds under those grant programs enumerated in the governor's declaration shall be restored to any [regional planning agency] or local government when:

(a) that [regional planning agency] or local government submits for approval a proposed comprehensive plan or significant amendment and the proposed comprehensive plan or amendment is approved [, or approved in part and rejected in part,] pursuant to Section [7-402.2] of this Act; and

(b) the governor has been notified in writing of the same.


Commentary: Adoption, Amendment, and Recordation of Local Comprehensive Plans

Sections 7-403 to 7-405 contain procedures for adopting, certifying, recording, filing, and amending the local comprehensive plan. These provisions are similar to those for state and regional agencies described elsewhere in the Legislative Guidebook.[337]


7-403 Adoption of Local Comprehensive Plans

(1) With the recommendation of the local planning commission, if one exists, the legislative body of the local government may adopt the local comprehensive plan as a whole by a single [ordinance or resolution] or may, by successive [resolutions or ordinances], adopt successive elements of the plan, and any other amendment thereto.

(2) The adoption of the local comprehensive plan or of any such part or other amendment shall be by [ordinance or resolution] of the legislative body carried by the affirmative votes of not less than a majority of the entire membership of the legislative body.[338] The [ordinance or resolution] shall refer expressly to the document intended by the legislative body to form the whole or part of the plan. The action taken shall be recorded on the plan or part or other amendment by the identifying signature of the presiding officer and the clerk of the legislative body.

7-404 Certification, Filing, and Recordation of Local Comprehensive Plans; Availability for Purchase; Computer Access to Plans

(1) A true copy of the adopted local comprehensive plan or part or other amendment thereof and a true copy of its adopting [ordinance or resolution] shall be certified by the legislative body and filed with the clerk of the legislative body, the public library that serves the area in which the local government is located, the state library, [the director of the regional planning agency in the region where the local government is located,] the chief executive officer of any adjoining local government, and the director of the [state planning agency].

(2) The adopted local comprehensive plan or part or other amendment thereof shall be filed and recorded with the recorder of each county wherein the local government is located.

(3) The [chief executive officer or director of planning] of the local government shall make the local comprehensive plan or part or other amendment available for purchase by the public at actual cost or at a lesser amount.

(4) The [chief executive officer or director of planning] of the local government may also make the local comprehensive plan or part or other amendment available in whole or in a summary form for viewing and downloading by the public on a computer-accessible information network.

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