Growing Smart Legislative Guidebook Online
Chapter 7: Local Planning (endnotes)
[1 ] Note: The model legislation in this Chapter assumes the existence of a state planning agency (described in Chapter 4, State Planning) and/or a regional planning agency (described in Chapter 6, Regional Planning). The nature of the relationships between state and regional planning agencies and local governments will vary considerably. For example, on the simplest level, that relationship may be technical assistance by the state or regional agency to the local government. Or, there may be a state and/or regional plan that has an advisory (e.g., nonbinding) status with respect to local planning. On the other hand, the relationship may extend to a mandatory review and certification by the state and/or regional planning agency of the local government's plans for consistency with state and/or regional goals and policies and state statutes and administrative rules. (See Sections 7-402.1 to 7-402.2, which establish a procedure for state review and approval of local comprehensive plans.) The state or regional planning agency may also have other powers of intervention in local land-use decision-making when such decisions affect state or regional interests (see Section 4-208, State Planning for Affordable Housing, and Chapter 5, State Land-Use Control). Finally, in the area of transportation planning, there may be a metropolitan planning organization (MPO) whose role it is to formulate a long-range regional transportation plan as a requirement of ensuring continuing federal funding for transportation improvements in the region (the MPO may also be a regional planning agency as well). Many of the projects in the regional transportation plan will evolve out of local planning efforts (see Section 6-204, Regional Transportation Plan).
[2 ] Alan Black, "The Comprehensive Plan," in Principles and Practice of Urban Planning, William I. Goodman and Eric C. Freund, eds. (Washington, D.C.: International City Management Association, 1968), 360.
[7 ] Linda C. Dalton, "Politics and Planning Agency Performance: Lessons from Seattle," Journal of the American Planning Association, 51, no. 2 (Spring 1985):189-190, citing James A. Spencer, "Planning Agency Management," in The Practice of Local Government Planning, edited by Frank So, Israel Stollman, Frank Beal, and David S. Arnold (Washington, D.C.: International City Management Association), 84, and John Friedman, "A Response to Altschuler: Comprehensive Planning as a Process," Journal of the American Institute of Planners, 31, no. 3 (August 1965): 195. See generally Beverly Moss Spatt, A Proposal to Change the Structure of City Planning: Case Study of New York City (New York: Praeger, 1971), ch. 1.
[8 ] Advisory Committee on City Planning and Zoning, U.S. Department of Commerce, A Standard City Planning Enabling Act (Washington, D.C.: U.S. GPO, 1928), Tit. 1, 2-11 (hereinafter referred to as "SCPEA"). The main provisions of the SCPEA were directed at establishing a municipal planning function, but not at establishing a comparable structure for unincorporated areas, such as in counties or townships. The act did, however, authorize regional planning commissions.
[21 ] Mel Scott, American City Planning Since 1890 (Berkeley: University of California Press, 1971), 193. See also John Howard, "In Defense of Planning Commissions," Journal of the American Institute of Planners, 17, no. 2 (Spring 1951): 89-94.
[30 ] Harvey S. Moskowitz, "Who Plans? A Look at Who Sits on New Jersey Planning Boards," Newsletter of the New Jersey Chapter of the American Planning Association 2, no. 2 (Winter 1994): 2. See also The Planning Commission as Viewed by Planning Directors, Planning Advisory Service Report No. 200 (Chicago: American Society of Planning Officials, July 1965), 2 (noting that occupational, as opposed to ethnic, civic, or geographic balance is the most frequently sought balance on a planning commission).
[32 ] Alfred Bettman, in Edward Bassett, Frank B. Williams, Alfred Bettman, and Robert Witten, Model Laws for Planning Cities, Counties and States Including Zoning, Subdivision Regulation, and Protection of Official Map (Cambridge, Mass.: Harvard University Press, 1935).
[41 ] It is worth noting that placing the planning function in the executive office is no guarantee of its effectiveness. Linda C. Dalton provides an interesting account of the failure of the City of Seattle's Office of Policy Planning in the executive department because of poor technical performance, inexperienced staff, inability to manage citizen participation processes, and tension between it and other line departments as well as the city council, which was engaged in a struggle with the mayor over the office's priorities. Linda C. Dalton, "Politics and Planning Agency Performance: Lessons from Seattle," Journal of the American Planning Association 51, No. 2 (Spring 1985): 189-199, esp. 194-198.
[46 ] While it is certainly possible for a legislative body to designate itself as the local planning agency (as well as assume the full responsibilities of the local planning commission), in practice it is rarely done because of the need for planning expertise and because of the other competing demands on the legislative body's time. If the legislative body is the local planning agency, it will have the full burden of dealing with all planning issues on top of the host of other political, financial, and administrative issues matters it must face. The risk is that planning issues will get less attention than they may deserve with an overworked legislative body. Moreover, while the consideration and adoption of plans is a policy-making or legislative function, the administration of plans and regulations is typically thought of as a policy-effectuation or executive function. The self-designation of a legislative body as the local planning agency will blur the distinction between the two functions, involving the legislative body in the minutiae of development reviews and other administrative or executive activities. Consequently, it is not recomended that enabling legislation authorize self-designation. Still, under these model statutes the legislative body will continue to have final authority over key decisions such as local comprehensive plan adoption, development code enactment, zone changes, and capital budget approval.
[48 ] In any urban municipality, the legislative body may create a planning department headed by a planning director as a substitute for a planning commission, and, in that event all of the powers and duties of planning commissions set forth herein shall be exercised by such planning director, subject to such regulations as that executive body shall from time to time specify . . . In such event, that legislative body may further create an advisory planning council, which shall only function in an advisory capacity to the planning director in the exercise of his powers and duties, and shall have such other functions as that legislative body shall, by resolution, assign to such council.
[49 ] As a practical matter, it is often difficult for public facilities to be designed, bid, and built so that they are available for use at the time the impacts of a development occur. Moreover, it may be better to see exactly what the impact from the development is rather than what it is predicted to be before constructing new facilities or implementing strategies. Consquently, permitting a completion period of up to two years for facilities and strategies may be desirable.
[50 ] Net density is used in the Legislative Guidebook in preference to gross density for two reasons. First, net density more accurately reflects the number of dwelling units that are either built or likely to be built on privately owned land because it removes from the calculation any publicly owned land and improvements. Second, the use of net density in a land use element of a local comprehensive plan allows an accurate determination of consistency with zoning code requirements, which apply only to privately owned land by specifying minimum area per dwelling unit. It would be very difficult to make a determination of consistency between a land-use plan map that delineates future residential uses on the basis of gross density with a zoning ordinance that instead addresses net density and could lead to later disputes (and litigation) over interpretation of the relationship between a plan map and a zoning designation or proposed zoning map amendment.
[58 ] For example, North Carolina allows nonresidents to be appointed to planning boards if the governing body so desires. N.C.G.S. 160A-60 (1996). Another example of "constitutency representatives" is the Cape Cod Commission which includes one minority and one Native American member among its 19 representatives. Section 3(b), Cape Cod Commission Act, enacted by Ch. 716 of the Acts of 1989 and Ch. 2 of the Acts of 1990.
[59 ] The presence of representatives of local business interests, whether they are residents or not, is especially important to the credibility of the local planning commission in the development of plans and regulations. For example, even if the chief executive officer of the largest business in the community is not a resident, he or she would have a real, substantial interest in the activities of the commission over time (as well as useful knowledge to contribute) and should have the opportunity to serve, unfettered by a local residency requirement.
[60 ] Subparagraph (c) must be tailored to each state. In most parts of the U.S. there are county and/or regional planning agencies. If the local government is a county, then a person representing the regional planning agency would sit on the county planning commission.
[62 ] Edward M. Bassett and Frank B. Williams, in Edward Bassett, Frank B. Williams, Alfred Bettman, and Robert Witten, Model Laws for Planning Cities, Counties and States Including Zoning, Subdivision Regulation, and Protection of Official Map (Cambridge, Mass.: Harvard University Press, 1935), 39.
[63 ] Alfred Bettman, in Edward Bassett, Frank B. Williams, Alfred Bettman, and Robert Witten, Model Laws for Planning Cities, Counties and States Including Zoning, Subdivision Regulation, and Protection of Official Map (Cambridge, Mass.: Harvard University Press, 1935), 76.
[64 ] For a discussion of a 2001 Kentucky law (H.B. 55) that requires orientation and continuing education for planning commissioners, members of boards of adjustment, and professional planning staff, see Marshall Slagle, FAICP, "Kentucky Enacts Continuing Education Requirements for Planning Officials: The Inside Story," Land Use Law& Zoning Digest 53, No. 9 (Sept. 2001): 11-12.
[65 ] SCPEA, Tit. I, 3 provides that "All members of the commission shall serve as such without compensation.". Commentary to the SCPEA indicated that "In some States it is the practice to allow a fee for the attendance at such meetings. This seems neither necessary or desirable, though if desired, such a provision can be easily inserted." Id., at n. 18.
[66 ] Alfred Bettman, in Edward M. Bassett, Frank B. Williams, Alfred Bettman, and Robert Witten, Model Laws for Planning Cities, Counties and States Including Zoning, Subdivision Regulation, and Protection of Official Map (Cambridge, Mass.: Harvard University Press, 1935), 60. See also Robert M. Anderson, American Law of Zoning, 3d ed, Vol. 4, (Deerfield, Ill.: Clark Boardman Callaghan, 1986) 23.24 (discussion of expenses and compensation of members of a planning commission).
[68 ] See, e.g., Ind. Code Ann. 36-7-4-223 and 36-7-4-909 (1996) (regulating planning commission and board of adjustment conflicts); N.H. Rev. Stat. Ann. 673.14 (1996) (regulating zoning board of adjustment, building code board, planning board, and historic district commission conflicts of interest); and N.J.Stat.Ann. 40-55D-23(b) (1996) (regulating planning board conflicts of interest).
[69 ] Mark Dennison, "Dealing with Bias and Conflicts of Interest," Zoning News (Chicago: American Planning Association, November 1994), 4. This article includes a citation list of the aforementioned 19 states.
[73 ] The local planning agency has the same authority to adopt procedural rules under Section 7-104. If the local planning commission is also the local planning agency then it would use that Section.
[75 ] This commentary is based, in part, on "Implementing Local and Neighborhood Plans Through Neighborhood-Based Organizations," by Peter W. Salsich, Jr., appearing in Modernizing State Planning Statutes: The Growing Smart Working Papers, Vol. 2, Planning Advisory Service Report No. 480/481 (Chicago: American Planning Association, September 1998). Research for this paper as well as the drafting of the model statutes related to neighborhood planning were supported in part by a grant from the Annie E. Casey Foundation of Baltimore.
[85 ] See Benjamin B. Quinones, "Redevelopment Redefined: Revitalizing the Central City with Resident Control," University of Michigan Journal of Law Reform 27, nos. 3& 4 (1994): 689, esp. 756-7, n. 252 (discussion of governing structure of Dudley Street Neighborhood Initiative in Boston, Massachusetts); Frank J. Costa, Gail Gordon Sommers, and Brian J. Sommers, "University Park Neighborhood Association: A University-Community Partnership, in Modernizing State Planning Statutes: The Growing Smart Working Papers, Vol. 2, Planning Advisory Service Report No. 480/481 (Chicago: American Planning Association, September 1998).
[88 ] Seattle Planning Department, Toward a Sustainable Seattle: A Plan for Managing Growth, The Mayor's Recommended Comprehensive Plan, Neighborhood Planning Element (Seattle, Wash.: The Department, March 1, 1994), 10 (discussion of neighborhood initiated plans and neighborhood matching funds).
[89 ] See Frank B. Williams, The Law of City Planning and Zoning (New York: MacMillan, 1922), Note I, General Planning Laws in the United States, 576-605 (examples of early city planning legislation from California, Minnesota, New Jersey, New York, Pennsylvania, as well as charter provisions from Cleveland, Ohio).
[92 ] SCPEA, 6. For an analysis of the language in this section, contending that it is vague, see Charles Haar, "The Master Plan: An Impermanent Constitution" Law and Contemporary Problems 20, No. 3 (Summer 1955): 367-373.
[98 ] While planning was not required, it is arguable that the shopping list of plan elements was mandatory, under 6 of the SCPEA. Note Daniel R. Mandelker and Roger Cunningham: "These elements were made mandatory —'Such plans . . . shall show' [citing language from 6] — but no substantive policies were stated in the statute and the linkages among the elements were left to the planning process to determine. Consequently the statute failed to provide a structure for the planning process or to suggest how the plan elements might be linked and grouped to comprise an integrated planning product." Daniel R. Mandelker and Roger A. Cunningham, Planning and Control of Land Development: Cases and Materials (New York: Bobbs-Merrill, 1979), 73.
[103 ] Harland Bartholomew, "What is Comprehensive Zoning?" in National Conference on City Planning, New York, Planning Problems of Town, City and Region: Papers and Discussions (Philadelphia, Pa.: Wm. F. Fell, 1928), 47-71. Bartholomew listed the following in "Studies to Be Made in Advance of the Preparation of a Zoning Ordinance": existing uses of land and buildings; new buildings erected by five-year periods; building heights; lot widths; front yards; population density; population distribution; topography; computation of areas for different land uses. Id, at 50. He added: "In addition to these studies there should be available a major street plan, a transit plan, a rail and water transportation plan; in other words, a comprehensive city plan. Without such a comprehensive city plan, the framers of the zoning plan must make numerous assumptions regarding the future of the city in respect to all of these matters without the benefit of detailed information and study. Zoning is but one element of a comprehensive city plan. It can neither be completely comprehensive nor permanently effective unless undertaken as part of a comprehensive plan." Id. "Two fundamental considerations," Bartholomew said, would also need evaluation: "1. How much area is needed for each broad type of use and how shall it be arranged or balanced in any given community? 2 What regulations are needed in the several use districts to afford good relations between the individual structures?" Id., at 51.
[104 ] Theodora K. Hubbard and H.V. Hubbard, Our Cities To-Day and To-Morrow: A Survey of Planning and Zoning Progress in the United States (Cambridge, Mass.: Harvard University Press, 1929), 109-10, which discusses what comprehensive plans should include.
[105 ] Edward M. Bassett, Frank .B. Williams, Alfred Bettman, and Robert Whitten, Model Laws for Planning Cities, Counties, and States, Including Zoning, Subdivision Regulations, and Protection of Official Map (Cambridge, Mass.: Harvard University Press, 1935), 39-47, 76-80 (municipal planning acts).
[106 ] Id., 40. Bassett's views on the master plan were further amplified in his book, The Master Plan (New York: Russell Sage Foundation, 1938). For a critique of Bassett's views, see Charles M. Haar, "The Content of the General Plan: A Glance at History," Journal of the American Institute of Planners 21, no.23 (Spring-Summer 1955): 66-70.
[108 ] Alfred Bettman, City and Regional Planning Papers, Arthur C. Comey, ed (Cambridge, Mass.: Harvard University Press, 1946), 263-264, quoted in T.J. Kent, Jr., The Urban General Plan (Chicago: APA Planners Press, 1990, reprint of 1964 edition), 62.
[110 ] The statute was amended several times. See 40 U.S.C. 461(c) and (m) (1976) quoted in Mandelker and Cunningham, Planning and Control of Land Development, 81-82, describing the Section 701 program as it existed in the mid-1970s.
[120 ] An alternative approach is to draft a description of a comprehensive plan and its elements in general terms, with the belief that an administrative agency, such as a state planning office or department of community affairs, will have the authority to detail the statute through rules and guidelines. While this may be preferable in terms of flexibility, one cannot be certain that it will always occur. See the discussion of this issue in the commentary to the transportation element, Section 7-205 below. On the question of what is a good plan, see generally William C. Baer, "General Plan Evaluation Criteria: An Approach to Making Better Plans," Journal of the American Planning Association 63, no. 3 (Summer 1997): 329-344.
[121 ] Judith E. Innes, "Planning Through Consensus Building: A New View of the Comprehensive Planning Ideal," Journal of the American Planning Association 62, no. 4 (Autumn 1996): 460-472, at 469. This article is a response to the classic critique of city planning by Political Scientist Alan Altschuler, The City Planning Process: A Political Analysis (Ithaca, N.Y.: Cornell University Press, 1965), in which Altschuler challenged the legitimacy and effectiveness of comprehensive planning and of planners' expertise.
[123 ] American Law Institute (ALI), A Model Land Development Code (Philadelphia: ALI, 1976), Commentary to Art. 3, 115, citing Robert Mitchell, "A New Frontier in Metropolitan Planning," Journal of the American Institute of Planners 2, (1961): 169, 170.
[127 ] See Nancy Stroud, "State Review and Certification of Local Plans" in Modernizing State Planning Statutes: The Growing Smart Working Papers, Vol. 1, Planning Advisory Service Report No. 462/463 (Chicago: American Planning Association, March 1996), 85-88 (discussing mandatory certification in Oregon, Washington, Florida, and Rhode Island, and incentive-based certification in Maine, Vermont, and Georgia).
[129 ] For a rigorous debate over the mandatory local planning question see "Should state government mandate local planning ?. . . Yes" by Daniel R. Mandelker and "Should state government mandate local planning? . . No" by Lawrence Susskind in Planning 44, no. 6 (July 1978): 14-22.
[130 ] Raymond J. Burby, et al., "Is State Mandated Planning Effective?" Land Use Law& Zoning Digest 45, no. 10 (October 1993): 3-9, at 8-9; see also Raymond J. Burby and Peter J. May, Making Governments Plan: State Experiments in Managing Land Use (Baltimore, Md.: Johns Hopkins, 1997).
[131 ] Section 2-102 describes a series of statewide planning interests that all governments must take into account when exercising authority under this Act. For example, Section 2-102(1) includes "the promotion of the public health, safety, morals or general welfare of the state" and Section 2-102(6) cites the "adequate provision of a full range of housing opportunities for persons of all income levels" (emphasis supplied). The objective of this language is to ensure that a balance is achieved between the social, economic, and cultural well-being of people, communities, and the environment.
[132 ] For a discussion of small area planning see Kaiser, Godschalk, and Chapin, Urban Land Use Planning, 4th ed., 458- 460. They describe it as "the process of developing detailed plans for sub-areas of the jurisdiction, based on the overall land use plan as well as discourse with local interests to set specific community development objectives." Id., at 458.
[134 ] See, e.g., Oregon Visions Project, Oregon Chapter, American Planning Association, A Guide to Community Visioning: Hands-On Information for Local Communities (Portland, Ore.: Oregon Visions Project), 7.
[135 ] For examples of such plans or reports about visioning processes, see, e.g., KezziahWatkins, The Voices of Vail Comprehensive Report (Colorado Springs, Colo.: KezziahWatkins for the City of Vail, September 1996); Gresham 2002 Action Planning Committee, Final Gresham 2002 Action Plan (Gresham, Ore.: The Committee, December 1992); Grand Traverse 20/20 Steering Committee, Summary Report: Results of Information Obtained at Grand Traverse 20/20 Futuring Sessions and Summary Conference (Traverse City, Mich.: The Committee, May 1991); Hillsborough County City-County Planning Commission, A Vision for the Future of Our Community (Tampa, Fla.: The Commission, September 1993); Citizens of Lower Yakima Valley with Yakima County Planning Department, Focus 2010 Planning for Yakima County's Next 20 Years: Lower Valley Visioning Report (Yakima, Wash.: The Department, January 1992); Joseph Pobiner Consulting, Goals for Canyon — A Vision for the Future (and Echo from the Past: City of Canyon, Texas Visioning and Goal Development (Grapevine, Tx.: Joseph Pobiner, June 25, 1993); Morgantown Area Chamber of Commerce, Vision 2000 for a Greater Morgantown Area (Morgantown, W. Va.: The Chamber, July 1992); City of Greenville, Horizons: Greenville's Community Plan (Greenville, N.C. The City, January 9, 1992); Allegheny County, Allegheny County 2001 (Pittsburgh, Pa.: Allegheny County Planning Department, May 1992); and City of Everett, Everett 2000: Vision, Goals& Action: A Guide to Everett's Preferred Future in the 21st Century as Envisioned by its Citizens (Everett, Wash.: The City, 1991). See generally Jason Woodmansee, "Community Visioning: Citizen Participation in Strategic Planning," MIS Report 26, no. 3 (Washington, D.C.: International City/County Management Association, March 1994); Steven C. Ames, "Community Visioning: A Tool for Managing Change, PAS Memo (Chicago: American Planning Association, July 1996); Carolyn Kennedy, "Comprehensive Plans: Making the Vision Come True," PAS Memo (Chicago: American Planning Association, July 1992); William R. Klein, et al., "Visions of Things to Come," Planning 59, no. 5 (May 1993): 10-15; Oregon Visions Project, Oregon Chapter, American Planning Association, A Guide to Community Visioning: Hands-On Information for Local Communities (Portland, Ore.: Oregon Visions Project, 1993); and Steven C. Ames, Charting a Course for Corvallis: A Case Study of Community Visioning in Oregon (Portland, Ore.: Steven C. Ames, for the Oregon Visions Project, American Planning Association, Oregon Chapter, May 1989).
Each local government is encouraged to articulate a vision of the future physical appearance of its community as a component of its local comprehensive plan. The vision should be developed through a collaborative planning process with meaningful public participation and shall be adopted by the governing body of the jurisdiction. Neighboring communities, especially those sharing natural resources or physical or economic infrastucture, are encouraged to create collective visions for greater-than-local areas. Such collective visions shall apply to each city or county only to the extent that each local government chooses to make them applicable. . . .When a local vision of the future has been created, a local government should review its comprehensive plan, land development regulations, and capital improvement program to ensure that these instruments will help move the community toward its vision in a manner consistent with this act and with the state comprehensive plan.
[138 ] Examples of such assets include: natural features; historic landmarks; public or private institutions, cultural traditions; major attractions or employers; and commercial or community centers that act as gathering places.
[139 ] Such threats may include general threats such as crime and pollution as well as unique or specific threats such as natural hazards or regional economic changes, like the closing of a major employer.
[140 ] Portions of this commentary appear in different form in "Toward Model Statutes for the Land-Use Element: An Assessment of Current Requirements and Practice," by Dr. Gerrit Knaap, in Modernizing State Planning Statutes: The Growing Smart Working Papers, Vol. 2, Planning Advisory Service Report No. 480/481 (Chicago: American Planning Association, September 1998). Dr. Knaap was a Senior Research Fellow on the Growing Smart project.
[141 ] For descriptions of land-use elements in state statutes or administrative rules, see, e.g., Cal. Gov't Code 65302 (a) (1996); Fla. Stat. 163.3177(6) (a) (1996); Fla. Admin. Code 9J-5.006(1994); Rules of Ga. Dept. of Comm. Affairs, 11-3-2.04(f) (1992); Id. Stat. 67-6508 (e) (1996); Ky. Rev. Stat. 100.187(3); (1996) N.J. Stat. Ann. 40:55D-28(b)(2); Minn. Stat. 462.352, subd. 6 (1996); Miss. Code 17-1-1 (ii) (1996); R.I. Gen. Laws, 45-22.2-6(B) (1996). Ore. Dept. of Land Conservation and Development, Oregon's Statewide Planning Goals& Guidelines, 1995 ed., Goal 2: Land-use planning (1995); Vt. Stat 4382(a)(2) (1996); Ut. Code 10-9-302(2(a) (1996); R.C.W. 36.70A.070(1); Wash. Admin. Code 365-195-305 (1996). See generally Ore. Admin. Rules. Ch. 660 (1996).
 Ian McHarg, Design with Nature (New York: Doubleday/Natural History Press, 1971), 153-161.
[145 ] ALI, A Model Land Development Code, 3-101-3-105, 122-134. An earlier effort that reflected antecedent concepts to those contained in the ALI Code was New Directions in Connecticut Planning Legislation: A Study of Connecticut Planning, Zoning and Related Statutes by the American Society of Planning Officials (ASPO) (Chicago: ASPO, February 1966). The ASPO Connecticut report proposed that, as a precondition to the exercise of development control powers, Connecticut communities should have a development program approved by the state, the elements of which should be specified in a statute. The program would have three components: (1) locally-approved major development policies that the community seeks to carry out through land-use controls, a capital improvement program, and other means; (2) a locally-approved capital improvement program; and (3) evidence of the availability of adequate professional assistance to administer local land use regulations. Two types of policies for (1) would be required: 1. general municipal development policies, such as those dealing with the timing and character of anticipated development, principles governing the generalized location of anticipated development, and the relationship between development and public improvements; and 2. a listing of the major policies applied by the governing body in drafting and revising the zoning map and drafting and revising any map that accompanies the development policies. Id., 33, 35.
[146 ] For a criticism of this aspect of the ALI Code, see George M. Raymond, "New? Yes. . . More Effective? No," in 1971 Land Use Controls Annual (Chicago: American Society of Planning Officials, 1971): 47-54.
[147 ] The discussion of land-use plan prototypes is abstracted from Edward J. Kaiser and David R. Godschalk, "Twentieth Century Land Use Planning: A Stalwart Family Tree," Journal of the American Planning Association 61, no. 3 (Summer 1995): 365-385, esp. 371-377.
[150 ] David L. Callies, "The Quiet Revolution Revisited: A Quarter Century of Progress," in Modernizing State Planning Statutes: The Growing Smart Working Papers, Vol. 1, Planning Advisory Service Report No. 462/463 (Chicago: American Planning Association, March 1996), 19, citing Haw. Rev. Stat. 205 et seq.
[153 ] City of Sanibel, Fla., Comprehensive Land-use Plan (Sanibel, Fla.: The City, 1981); see also John Clark, The Sanibel Report: Formulation of a Comprehensive Plan Based on Natural Systems (Washington, D.C.: The Conservation Foundation, 1976).
[158 ] This commentary and portions of the following model statute are based on a working paper, "Land Supply Monitoring Systems," by Professor Scott Bollens of the University of California at Irvine, that appears in Modernizing State Planning Statutes: The Growing Smart Working Papers, Vol. 2, Planning Advisory Service Report No. 480/481 (Chicago: American Planning Association, September 1998). On the subject of land supply monitoring, see generally David Godschalk, Scott Bollens, John Hekman, and Mike Miles, Land Supply Monitoring: A Guide for Improving Public and Private Urban Development Decisions (Boston: Oeslschlager, Gunn, and Hain, 1985); Scott Bollens and David Godschalk "Tracking Land Supply for Growth Management," Journal of the American Planning Association 53, no. 3: 315-27 (1987); Susan C. Enger, Providing Adequate Urban Area Land Supply (State of Washington, Department of Community Development, Growth Management Division, 1992); and Larz T. Anderson, Seven Methods for Calculating Land Capability/ Suitability, Planning Advisory Service Report No. 402 (Chicago: American Planning Association, 1987). For an example of a regional geographic information system that could be used for land market monitoring, see Southern California Association of Governments, About ACCESS, World Wide Web, http:/www.scag.org/public_docs/d62.htm.
[166 ] It is possible that the inventorying of buildable land can occur more often than every five years and, indeed, could occur on an ongoing basis using computerized geographic information systems.
[167 ] The Metro in Portland, Oregon, uses a sophisticated geographic information system (GIS) to evaluate the infill or redevelopment potential of properties in the buildable lands inventory. The system identifies tax lots that are underutilized through the application of screening factors that include the size of the lot, existing building coverage, and neighborhood context (whether redevelopment has been occurring in the vicinity that may be the result of upzoning, thereby increasing property values). For example, the system could identify a one-acre parcel on which there is a single-family home that occupies only ten percent of the lot and where there has been extensive redevelopment activity in a 500-foot radius. Telephone interview by Stuart Meck, Principal Investigator, Growing Smart project, with Mary A. Weber, Senior Program Supervisor, Growth Management Services, Metro, May 13, 1998. Obviously any system that assesses redevelopment potential will involve judgment and continuing refinement. There will be a continuing debate over whether the assessment is accurate. For more information on Metro's GIS system, see its website: www.metro-region.org.
[168 ] For a compendium of these techniques, see Metro Regional Services, Livable Communities Workbook: A Guide for Updating Local Land-Use Codes (Portland, Ore.: Metro Regional Services, January 1988) (includes actual examples of development code changes adopted by communities in the Portland area).
[169 ] As a practical matter, it must be acknowledged that there may be political resistance to increasing densities or intensities in a zoning ordinance that will make this particular action difficult. In addition, even if political resistance can be overcome, there is no guarantee that the market will respond with higher density housing products or more land-intensive commercial and industrial products. For a discussion of the experience in Portland, Oregon, see Alan Ehrenhalt, "The Great Wall of Portland," Governing 10, no. 8 (May 1997): 20-24, esp. 24 (describing homeowner resistance to "first wave of increasing urban density").
[170 ] This commentary is based in part on "Toward a Model Statutory Plan Element: Transportation," by Jerry Weitz, AICP, in Land Use Law& Zoning Digest 49, no. 2 (February 1997): 3-9. This article also appears in Modernizing State Planning Statutes: The Growing Smart Working Papers, Vol. 2 (Chicago: American Planning Association, September 1998).
[171 ] SCPEA, 6. Under the SCPEA, a public utility could include railroads and street railways. Commentary to the act noted that "the location of the street railroads of the city bears as intimate and important a relation to the location of business, industrial, and residential districts as does the location of the streets themselves." Id., n. 37.
[174 ] Economist Anthony Downs called this the "triple convergence" phenomenon of equilibrium, which makes traffic congestion a ubiquitous problem that is next to impossible to solve. It means that, as a local government completes a highway capacity improvement, the new capacity gets swamped in a short period of time because three streams converge: (1) people who traveled at earlier or later periods now use the highway; (2) people traveling other modes, such as transit, now find it quicker to drive; and (3) those who found alternative routes earlier will now also use the expanded capacity of the highway because it is faster. Anthony Downs, Stuck in Traffic: Coping with Peak-Hour Traffic Congestion (Cambridge, Mass: Brookings Institution and Lincoln Institute of Land Policy, 1992) , 27-28. See also Terry Moore and Paul Thorsnes, The Transportation/Land Use Connection, Planning Advisory Service Report No. 448/449 (Chicago: American Planning Association, 1994), 2-3.
[175 ] See Genevieve Guiliano and Martin Wachs, "Transportation Demand Management as Part of Growth Management," in Growth Management: The Planning Challenge of the 1990's, Jay M. Stein, ed. (Newbury Park, Calif.: Sage Publications, 1993), 162-164; Deborah L. Johnson, "Suggestions for Model Transportation Demand Management Legislation," in Modernizing State Planning Legislation: The Growing Smart Working Papers, Vol. 1, Planning Advisory Service Report No. 462/463 (Chicago: American Planning Association, March 1996), 133-146.
[177 ] Oregon's rule elevates transportation planning to system plan status (with its own "elements"), while other states require one or more transportation elements of a local comprehensive plan. There are as many as nine required elements of local and regional transportation system plans, depending on the population of the urban area, as follows: (1) determination of transportation needs; (2) road plan (arterials, collectors, and standards for local street layout); (3) public transportation plan; (4) bicycle and pedestrian plan; (5) air, rail, water, and pipeline transportation plan; (6) transportation system management and demand management plan (for urban areas greater than 25,000 persons); (7) a parking plan in MPO areas; (8) policies and land use regulations for implementing the transportation system plan; and (9) transportation financing program (for urban areas greater than 2,500 persons). Ore. Admin. Rules 660-12-020.
[178 ] This discussion of transportation performance measures has been abstracted from Reid H. Ewing, "Beyond Speed: The Next Generation of Transportation Performance Measures," in Performance Standards for Growth Management, Douglas R. Porter, ed., Planning Advisory Service Report No. 461 (Chicago: American Planning Association, February 1996), 32-34.
[179 ] The Federal Clean Air Act Amendments of 1990 require states to integrate their air quality and transportation planning processes by establishing better coordination between those planning processes and setting a firm schedule. ISTEA strengthened those reforms by requiring that regional transportation plans prepared by metropolitan planning organizations (MPOs) and state transportation plans be consistent with state air quality plans.
[181 ] For a discussion of the evolution of street standards in the United States and their impact on neighborhood character and livability, see Michael Southworth and Eran Ben-Joseph, Streets and the Shaping of Towns and Cities (New York: McGraw-Hill, 1997).
[183 ] Frank So, "Governmental and Community Facilities," in Principles and Practice of Urban Planning, William I. Goodman and Eric C. Freund, eds. (Washington, D.C.: International City Management Association, 1968), 208.
[184 ] Fl. Stat. 163.3177 (3)(a) and (6)(c) (1995) ; Fl. Admin. Code 9J-5.011 and 9J-5.016 (1995); Rules of the Georgia Dept. of Community Affairs, 110-3-.04(5)(d)(1992); Ky. Rev. Stats. 100.187(4) (1996); Ore. Admin. Rules. Ch. 66, Div.11 (1985); R.I. Gen. Laws 45-22,2-6(F)(1996); Wash. Rev. Code 36.70A.070(3) to (4) Wash. Admin. Code 365-195-315 and 365-195-2320; Vt. Stats. 4382(4) and (6) (1997). The description of the "master plan" in 6 of the Standard City Planning Enabling Act (SCPEA) also contains a listing of a variety of community facilities.
[186 ]This commentary and the model statute that follows are based in part on "Creating Effective State and Local Telecommunications Plans, Regulations, and Networks," by Barbara Becker, AICP, and Susan Bradbury, in Modernizing State Planning Statutes: The Growing Smart Working Papers, Vol. 2, Planning Advisory Service Report No. 480/481 (Chicago: American Planning Association, September 1998). The preparation of the working paper, the commentary, and the model statute was supported by a grant from the Siemens Corporation. See also the commentary to Section 4-206.1, State Telecommunications and Information Technology Plan.
[187 ] See Robert A. Heverly, "Dealing with Towers, Antennas, and Satellite Dishes," Land Use Law& Zoning Digest 48, no. 11 (November 1996): 3; Stanley D. Abrams, "Update on the 1996 Telecommunications Act: Personal Wireless Services," Land Use Law& Zoning Digest 50, no. 4 (April 1998): 3
[189 ] Telecommunications Act of 1996, P.L. No. 104-104, 110 Stat. 56, 47 U.S.C.A. 151 et seq. The Act can also be found on the Federal Communications Commission website: www.fcc.gov/telecom.html.
[190 ] For an excellent discussion of the connection between telecommunications and economic growth, see Office of Technology Assessment, Congress of the United States, The Technological Reshaping of Metropolitan America, OTA-ETI-643 (Washington, D.C.: U.S. GPO, September 1995), ch. 7 (discussing telework, intelligent transportation systems, and investment in telecommunications infrastructure).
[191 ] See George Arimes, "Doing the Job in Double Time," Planning 63, no. 3 (March 1997): 22-25 (describing project tracking system in San Diego that will allow public access of data through Internet).
[192 ] Blacksburg Electronic Village, "About the Blacksburg Electronic Village," (1997), www.bev.net/project/index.html; Cambridge Civic Network (1997), www.civic.net.2401/cambridge_civic_network/cambridge_civic_network.html; Seattle Community Network, "Seattle Community Network," (1997), www.scn.org/ip/commnet/principles.html. For a comprehensive listing of such free nets and community networks in the U.S., see: www.freenet.mb.ca/othersys/freenets/usa.html
[193 ] City of Sunnyvale, California, Telecommunications Policy (Nov. 10, 1995), www.ganymede.org/ svale/telecomm_policy. html.
[194 ] For examples of comprehensive ordinances regulating telecommunications facilities, see City of Petaluma, California, Zoning Ordinance, Ch. 14.44, Telecommunication Facility and Antenna Criteria (1996), www.abag.ca.gov/bayarea/telco/samples/petaluma.html; Albany Dougherty Planning Commission, Telecommunications Ordinance (Albany, Ga., 1996). City of Bloomington, Minnesota,Zoning, Ch. 19(1997), www.ci.bloomington.mn.us/structur/codes/special/tower/towercov.htm; City of Sonoma, California, Zoning Ordinance (1996), Ordinance 96-23, www.abag.ca.gov/bayarea/telco/samples/sonoma.city.html;
[200 ] Fl. Stats. 163.3177(6)(f); Fl. Admin. Code 9J-5.010 (1994); Ga. Admin. Code 11-2-.04((5)(e) (1992); Ore. Admin. Rules, Ch. 660, Division 8 (Interpretation of Goal 10 Housing); Wash. Rev. Code 36.70A.070(2) (1996); Wash. Admin. Code 365-195-310 (1993)
[204 ] The households most commonly identified as requiring "special needs" programs include the elderly, the physically and mentally disabled, single heads of households, large families, farm workers and migrant laborers, and the homeless.
[206 ] This commentary and the following model economic development element are based, in part, on a paper by Dr. Gerrit Knaap, "Toward Model Statutes for the Economic Development Element of Local Comprehensive Plans," in Modernizing State Planning Statutes: The Growing Smart Working Papers, Vol. 2, Planning Advisory Service Report No. 480/481 (Chicago: American Planning Association, September 1998). Dr. Knaap was a Senior Research Fellow on the Growing Smart project.
[207 ] See generally Stephen B. Friedman and Alexander J. Darragh, "Economic Development," Ch. 10, in The Practice of Local Government Planning, 2d ed., Frank So and Judith Getzels, eds (Washington, D.C.: International City Management Association, 1988); Donald T. Iannone, "Economic Development," Ch. 5, in Managing Small Cities and Counties: A Practical Guide (International City/Council Management Association, 1994); Edward J. Blakely, Planning Local Economic Development: Theory and Practice, 2d ed. (Thousand Oaks, Ca.: Sage, 1994); Mary L. McLean and Kenneth P. Voytek, Understanding Your Economy: Using Analysis to Guide Local Strategic Planning (Chicago: APA Planners Press, 1992); and Avrom Bendavid-Val, Local Economic Development Planning: From Goals to Policies, Planning Advisory Service Report No. 353 (Chicago: American Planning Association, 1980).
[208 ] For a discussion of transformation to global economies and the competition of economic regions as opposed to nations, see Robert D. Yaro and Tony Hiss (Regional Plan Association), A Region at Risk: The Third Regional Plan for the New York-New Jersey-Connecticut Area (Washington, D.C.: Island Press, 1996), 23-43.
[214 ] See Robert Cervero, "Job-Housing Balance Revisited: Trends and Impacts in the San Francisco Bay Area," Journal of the American Planning Association 62, No. 4 (Autumn 1996): 429-511; Robert Cervero, "Jobs-Housing Balancing and Regional Mobility," Journal of the American Planning Association 55, No. 2 (Spring 1989): 136-150.
[215 ] Institutions are included in the economic development element. In many communities, institutions like public and private hospitals and universities as well as nonprofit organizations are significant employers.
[216 ] Md. Ann. Code Art. 66B, 3.05 and Art. State Finance and Procurement, 5-709 (1996). Delaware has a similar requirement for a conservation element for a county comprehensive plan. Del. Code 6956(g)(4) (1996).
[220 ] See generally Devon M. Schneider, David R. Godschalk, and Normal Axler, The Carrying Capacity Concept as a Planning Tool, Planning Advisory Service Report No. 338 (Chicago: American Planning Association, December 1978).
[221 ] See Jon Witten and Scott Horsley with Sanjay Jeer and Erin K. Flanagan, A Guide to Wellhead Protection, Planning Advisory Service Report No. 457/458 (Chicago: American Planning Association, August 1995).
[222 ] See David G. Burke, Erik J. Meyers, Ralph W. Tiner, Jr., and Hazel Groman, Protecting Nontidal Wetlands, Planning Advisory Service Report No. 414/415 (Chicago: American Planning Association, December 1988).
[223 ] This model statute was drafted by Jon Witten, an attorney and planning consultant in Sandwich, Massachusetts, with additional material by Stuart Meck, AICP, principal investigator for the Growing Smart project and Megan S. Lewis, AICP, a research associate with the American Planning Association.
[224 ] For example, critical habitat areas would be covered by the area of critical state concern designation and could be addressed in this element, providing a basis for nomination. See Christopher J. Duerksen, Donald L. Elliott, N. Thompson Hobbs, Erin Johnson, and James R. Miller, Habitat Protection Planning: Where the Wild Things Are, Planning Advisory Service Report No. 470/471 (Chicago: American Planning Association, May 1997).
[225 ] Calif. Govt. Code 65302 (g) requires a safety element "for the protection of the community from any unreasonable risks associated with the effects of seismically induced surface rupture, ground shaking, ground failure, tsunami, seiche, and dam failure; slope instability leading to mudslides and landslides; subsidence, liquefaction and other seismic hazards identified pursuant to Chapter 7.8 (commencing with Section 2690) of the Public Resources Code, and other geologic hazards known to the legislative body; flooding; and wild land and urban fires." In addition to the mapping of seismic and geologic hazards, the element is to address "evacuation routes, peakload water supply requirements, and minimum road widths and clearances around structures, as those items relate to identified fire and geologic hazards."
[227 ] The following state statutes provide for natural hazards planning: Arizona (Ariz.Rev.Stat. 11-806B), California (Cal.Gov't.Code 65302(e)(7)& (g)), Colorado (Colo.Rev. Stat. 30-28-106, 31-23-206), Florida (Fla.Stat.Ann. 163.3177(6)(g), 7(h), 163.3178), Georgia (Ga. Code Ann. 12-2-8), Idaho (Idaho Code 67-6508(g)), Indiana (Ind.Code 36-7-4-503), Iowa (Iowa Code 281.4), Kentucky (Ky.Rev.Stat.Ann. 100.187(5)), Louisiana (La.Rev.Stat.Ann. 33:107), Maine (Me.Rev.Stat.Ann. tit. 30A 4326A(1)(d)), Maryland (Md. Code Ann. tit. 66B 3.05(a)(1)(viii)), Michigan (Mich.Comp.Laws 125.36), Montana (Mont. Code Ann. 76-1-601(2)(h)), Nevada (Nev.Rev.Stat. 278.160.1 (k)& (l)), North Carolina (N.C.Gen.Stat. 113A-110ff), Oregon (Or.Rev.Stat. 197.175), Pennsylvania (53 Pa.Stat.Ann. 10301(2)), Rhode Island (R.I.Gen.Laws 45-22.2-6(E)), South Carolina (S.C. Code Ann. 6-7-510), Utah (Utah Code Ann. 10-9-302(2)(c)), Vermont (Vt.Stat.Ann. tit. 24, 4382(a)(2)), Virginia (Va. Code Ann. 15.1-446.1.1), Washington (Wash.Rev. Code 36.70.330(1)), West Virginia (W.Va. Code 8-24-17(a)(9)).
[228 ] See Using Earthquake Hazard Maps for Land Use Planning and Building Permit Administration, Report of the Metro Advisory Committee for Mitigating Earthquake Damage (Portland, Ore.: Portland Metro, May 1996) and Metro Area Disaster Geographic Information System: Volume One (Portland, Ore.: Portland Metro, June 1996).
[229 ] National Oceanic and Atmospheric Administration (NOAA), Pacific Marine Environmental Laboratory. Tsunami Hazard Mitigation: A Report to the Senate Appropriations Committee (Seattle, Wash.: NOAA, The Laboratory, March 31, 1995).
[230 ] Colorado has been increasing its attention to both the wildfire issue and hazards generally. See Land Use Guidelines for Natural and Technological Hazards Planning (Denver: Colorado Department of Local Affairs, Office of Emergency Management, March 1994). An interesting source on the mapping of wildfire hazards is Boulder County's World Wide Web site at http://boco.co.gov/gislu/whims.html.
[232 ] For a discussion of approaches to drafting floodplain management ordinances, see Jim Schwab, "Zoning for Flood Hazards," Zoning News (Chicago: American Planning Association, October 1997). See also Marya Morris, Subdivision Design in Flood Hazard Areas, Planning Advisory Service Report No. 473 (Chicago: American Planning Association, September 1997).
[235 ] The Northridge earthquake in February 1994, which occurred shortly after the adoption of the Los Angeles plan, afforded the rare opportunity for the National Science Foundation to underwrite two independent analyses of the plan's utility and effectiveness in the aftermath of that disaster. Spangle Associates with Robert Olson Associates, Inc., prepared The Recovery and Reconstruction Plan of the City of Los Angeles: Evaluation of its Use after the Northridge Earthquake (NSF Grant No. CMS-9416416), August 1997. The other study is The Northridge Earthquake: Land Use Planning for Hazard Mitigation (CMS-9416458), December 1996, by Steven P. French, Arthur C. Nelson, S. Muthukumar, and Maureen M. Holland, all of the City Planning Program at the Georgia Institute of Technology.
[236 ] ALI, A Model Land Development Code, 3-105, Short-Term Program, 132-133. Cf. Id. Stat. 67-6508 (n) (1996) which requires that the plan include an "implementation" component that contains "[a]n analysis to determine actions, programs, budgets, ordinances, or other methods including scheduling of public expenditures to provide for the timely execution of the various components of the plan."
[239 ] See, e.g., Cal. Gov't Code 65560 to 65570 (1997) (open space element); Id. Code 6508(e) and (f) (1998) (land use and natural resources components of comprehensive plan); Ore. Admin. Code Div. 5 (Interpretation of Goal 3 Agricultural Lands) (Sept. 1986) and Div. 6 (Goal 4 Forest Lands) (Dec. 1991); R.I. Gen. Laws, 45-22.26(E) (1997) (natural and cultural resources element); Wash. Rev. Code 36.70A.170 (1997) (natural resource lands and critical areas — designations, including agricultural and forest lands); Wash. Admin. Code 365-194-400 and ch. 365-190 (1993).
[240 ] Iowa Code, Ch. 352 (1997) (County Land Preservation and Use Commissions), esp. 352.5 (County land preservation and use plan); Minn. Stat. Ch. 40A (Agricultural Land Preservation Program), esp. 40A04-40A.05 (describing agricultural land preservation plan, and Ch. 473H (Metropolitan Agricultural Preserves Program) (1997).
[241 ] U.S. Department of Agriculture, Soil Conservation Service, National Agricultural Land Evaluation and Site Assessment Handbook (Washington, D.C.: U.S. GPO, 1983); see also Frederick R. Steiner, James R. Pease, and Robert E. Coughlin, editors, A Decade with LESA: The Evolution of Land Evaluation and Site Assessment (Soil and Water Conservation Society, 1994); Frederick R. Steiner, "The Agriculture Land and Site Assessment System," Environment& Development (May 1995): 1-3.
[242 ] This model statute was drafted by Jon Witten, AICP, an attorney and planning consultant in Sandwich, Massachusetts, with additional material by Stuart Meck, AICP, principal investigator for the Growing Smart project, and Michelle Zimet, AICP, an attorney and senior research fellow with the project.
[243 ] This language does not limit a local government's action in employing a transfer of development rights program or an acquisition program, either in fee simple or less-than-fee simple, for land other than agricultural and forest lands.
[244 ] See Caspersen v. Town of Lyme, 139 N.H. 637, 661 A. 2d 759 (1995) (finding that 50-acre minimum lot size in mountain and forestry district was rationally related to town's legitimate goals of encouraging forestry and timber harvesting and was supported by expert testimony that small lots create access problems, that there there are not any opportunities for harvesting on small lots, that there are more opportunities for harvesting on 50-acre lots, and that size has an important effect on profitability of forestry enterprises).
[248 ] For a review of thinking about the intersection of physical and social planning as it existed in the 1960s, see, e.g., Herbert J. Gans, "A Memorandum on Social Planning" and "Social and Physical Planning for the Elimination of Urban Poverty," in People and Plans: Essays on Urban Problems and Solutions (New York: Basic Books, 1968), 82-94 and 231-248; Harvey S. Perloff, "Common Goals and the Linking of Physical and Social Planning," in Urban Planning and Social Policy, edited by Bernard J. Frieden and Robert Morris (New York: Basic Books, 1968), 346-359. See also Cleveland City Planning Commission, Policy Planning Report (Cleveland, Ohio: The Commission, 1974) (city plan that examined issues of housing, income, job development, transportation, and community development from perspective of the city's disadvantaged citizens, articulating policies to give them wider choice); Norman Krumholz and John Forester, Making Equity Planning Work: Leadership in the Public Sector (Philadelphia: Temple University Press, 1990) (discussion of Cleveland plan).
[249 ] Thomas K. MacKesey, "Human Services" (Ch. 8), in Managing Small Cities and Counties: A Practical Guide, edited by James Banovetz, Drew A. Dolan, and John W. Swaim (Washington, D.C.: International City/County Management Association, 1994), esp. 149-160.
[250 ] Richard S. Bolan, "Social Planning and Policy Development in Local Government," in Managing Human Services, edited by Wayne Anderson, Bernard J. Frieden, and Michael J. Murphy (Washington, D.C.: International City Management Association, 1977), 110, quoting New England Municipal Center, Opportunities for Municipal Participation in Human Services (Durham, N.H.: New England Municipal Center, 1975).
[252 ] Palm Beach County, Florida, "Resolution of the Board of County Commissioners of Palm Beach County, Florida, Establishing the Palm Beach County Citizens Advisory Committee on Health and Human Services," Resolution R-90-1978 (November 13, 1990).
[253 ] Palm Beach County, Florida, "Resolution of the Board of County Commissioners of Palm Beach County, Florida, Amending Resolution No. R-90-1978 Dated November 13, 1990, Establishing the Palm Beach County Citizens Advisory Committee on Health and Human Services," Resolution No. 493-317 (March 16, 1993).
[255 ] City of Seattle, Comprehensive Plan, Human Development Element, adopted November 1995, www.ci.wa.us/planning/humandev.htm.
[256 ] City of Tacoma, Washington, Human Services Strategic Plan (April 6, 1998), www.ci.tacoma.wa.us/PDS/Community/human%20services/human2.htm.
[257 ] Nantucket Planning and Development Committee, Comprehensive Plan, Nantucket Island, Massachusetts, Goals and Objectives for Balanced Growth, Article No. 11 (Nantucket Island, Mass.: The Committee, November 1, 1990), 15.
[260 ] This model statute, however, is not intended to be used as a vehicle for historic preservation planning. Another Section of the Guidebook, 7-215, provides model plan element language for that purpose.
[261 ] In some states, it is impermissible to regulate land use for aesthetic purposes alone. However, aesthetic considerations may be a secondary purpose of regulation. See, e.g., Village of Hudson v Albrecht, Inc., 9 Ohio St. 3d 69, 458 N.E.2d 852 (1984), appeal dismissed, 467 U.S. 1237 (1984) (recognizing the "legitimate governmental interest of maintaining the aesthetics of the community" but tying the promotion of aesthetics to the protection of real estate "from impairment and destruction of value").
[262 ] See Jonathan Barnett, An Introduction to Urban Design (New York: Harper& Row, 1982); Gordon Cullen, The Concise Townscape (New York: Van Nostrand Reinhold, 1961); Sherwin Greene, "Cityshape: Communicating and Evaluating Community Design," Journal of the American Planning Association 59, no. 2 (Spring 1992): 177-189; Richard Hedman with Andrew Jaszewski, Fundamentals of Urban Design (Chicago: APA Planners Press, 1984); Kevin Lynch, The Image of the City (Cambridge, Mass.: MIT Press, 1960); Kevin Lynch, A Theory of Good City Form (Cambridge, Mass.: MIT Press, 1981); Anton Nelessen, Visions for a New American Dream (Chicago: APA Planners Presss, 1994); Hamid Shirvani, The Urban Design Process (New York: Van Nostrand Reinhold, 1985); Paul D. Spreiregen, Urban Design: The Architecture of Towns and Cities (New York: McGraw Hill, 1965). Two classic urban design plans are: San Francisco Department of City Planning, The Urban Design Plan (San Francisco, Ca.: The Department, May 1971); and Regional Plan Association, Urban Design Manhattan (New York: Viking Press, 1969).
[263 ] See generally, Constance E. Beaumont, Smart States, Better Communities: How State Governments Can Help Citizens Preserve Their Communities (Washington, D.C.: National Trust for Historic Preservation, 1996) for a discussion of the relationship of state growth management and planning initiatives to historic preservation planning and techniques. It includes case studies of state and local approaches to incorporating preservation ideals into state and local planning.
[264 ] See generally Christopher Duerksen, ed., A Handbook on Historic Preservation Law (Washington, D.C.: Conservation Foundation, 1983); and Constance E. Beaumont, Smart States, Better Communities, esp. ch. 1.
 To date, historic preservation is a mandatory element in local comprehensive plans in Delaware (Del. Code Tit. 9 2656(g)(9) (1995)); Georgia (Ga. Code Ann. 50-8-7.1(b)(1) (1989)); and Rhode Island (R.I. Gen. Laws 45-22.1-6(E) (1996). Historic preservation is an optional element in the following states: see Florida (Fla. Stat. 163.3177(7)(i) (1991)) where preservation issues are further required to be addressed in the future land use, housing, and coastal zone management elements (Fla. Stat. 163.3177(6)(a) (1991) — future land use); Fla. Stat. 163.3177(6)(g) (1991) — coastal zone management); Fla. Stat. 163.3177(6)(f) (1991) — housing); Maine (30 Me. Rev. Stat. Ann. 4326-1-I (1989)) where historic and scenic resources must be considered in the plan, although it is not required as a separate element; New Jersey (N.J.Stat. Ann. . 40:550-28(b)(10)(1996)); and Oregon (Ore. Rev. Stat. 197.175(2)(a) (1995)), where local governments are required to "prepare, adopt, amend, and revise comprehensive plans in compliance with goals approved by the [state land conservation and development] commission." Oregon Statewide Planning Goal 5 is Open Spaces, Scenic and Historic Areas, and Natural Resources. Local governments are required to provide programs that will "protect scenic and historic areas and natural resources for future generations" and conduct inventories on the quality and quantity of: outstanding scenic views and sites, historic areas, sites, and objects, and cultural areas (see Oregon's Statewide Planning Goals& Guidelines, 1995 ed. Ore. Dept. of Land Conservation and Development, at. 8); Vermont, where local planning is voluntary, but local governments that choose to adopt a comprehensive plan must include in it a "statement of policies on the preservation of rare and irreplaceable natural areas, scenic and historic features and resources."(Vt. Stat. Ann., Tit. 24, 4382(5) (1992)); and Washington, where state planning goal 13 is to "identify and encourage lands, sites, or structures that have historic or archaeological significance." However, historic preservation is not a mandatory or even optional plan element for local governments in the Washington growth management program (Rev. Code Wash. 36.70A.010).
[268 ] Note that the model statutes in the following three Sections require an adopted local comprehensive plan before preparation of subplans. In the view of the Legislative Guidebook, it is difficult to undertake small area planning without some type of overall framework. However, it should also be recognized that, in some communities, small area planning may occur in tandem with or independent of comprehensive planning efforts for the entire jurisdiction of local governments. Plans are sometimes completed for small areas first because they respond to an immediate set of needs or political opportunities. Users of these models should consider the context in which these statutes are to be used; if the state does not have mandatory planning, then the restrictive language on requiring an adopted local comprehensive plan before adopting a subplan may need to be relaxed.
[270 ] Neighborhood plans tend to emphasize on problems or issues that can be addressed in one to two years. This reflects, in many respects, the nature of neighborhood planning process itself, which often focuses on high-visibility problems that can be resolved quickly like clean-up of trash and installation of street lights.
[271 ] See, e.g., Frederick J. Adams, "Michigan Neighborhood Improvement Act," The Planner's Journal 3 (1937): 133-35 (an early version of neighborhood planning legislation, but never enacted); Bernie Jones, Neighborhood Planning: A Guide for Citizens and Planners (Chicago, Il: American Planning Association, 1979); Wendelyn A. Martz, Neighborhood-Based Planning; Five Case Studies, Planning Advisory Service Report No. 455. (Chicago: American Planning Association, 1995); David S. Sawicki and Patricia Flynn, "Neighborhood Indicators: A Review of the Literature and an Assessment of Conceptual and Methodological Issues," Journal of the American Planning Association 62, no. 2 (1996): 165-84; Christopher Silver, "Neighborhood Planning in Historical Perspective," Journal of the American Planning Association 51, no. 2 (1985): 161-74; Joel T. Werth and David Bryant, A Guide to Neighborhood Planning, Planning Advisory Service Report No. 342 (Chicago: American Planning Association, July 1979); N.Y.C. Charter 197a (describing plans for the development, growth, and improvement of the city and its boroughs and community districts); and N.J.Stat.Ann. 55:19-21 et seq., esp. 55:19-64 (1996) (Neighborhood empowerment plans).
[272 ] See Michael W. Marshall, "Working with Low-Income Neighborhoods to Prepare a Neighborhood Plan," Charles E. Connerly, "Identifying and Targeting Neighborhoods for Revitalization," Frank J. Costa, Brian J. Sommers, and Gail Gordon Sommers "University Park Neighborhood Association: A University-Community Partnership"; Ralph Stone, "Neighborhood Planning in St. Petersburg, Florida," in Modernizing State Planning Statutes: The Growing Smart Working Papers, Vol. 2, Planning Advisory Service Report No. 480/481 (Chicago: American Planning Association, September 1998).
[273 ] It is conceivable that a local government could develop neighborhood plans without a local comprehensive plan, but it would eventually would have to address systemic communitywide issues. For example, issues such as economic development, location of key community facilities like landfills and libraries and placement of transportation facilities like rail lines cannot be adequately dealt with on a segmented neighborhood-by-neighborhood basis. The Legislative Guidebook's approach is to ensure that the broader policy framework of a comprehensive plan be in place first before undertaking a neighborhood plan in order to help resolve conflicts between and among neighborhoods and between neighborhoods and citywide goals.
[274 ] See generally Peter Katz et al., The New Urbanism: Toward an Architecture of Community (New York: McGraw Hill, 1994); Andres Duany and Elizabeth Plater-Zyberk, Towns and Town-Making Principles (New York: Rizzoli, 1992). Compare with Raymond Unwin, Town Planning in Practice (Princeton, N.J.: Princeton Architectural Press, 1994, reprint of 1909 edition).
[275 ] Michael Bernick and Robert Cervero, Transit Villages in the 21st Century (New York: McGraw Hill, 1997); Michael Bernick and Jason Munkres, "Designing Transit-Based Communities," Working Paper 581 (Berkeley, Ca.:. Institute of Urban and Regional Development, National Transit Access Center, University of California at Berkley, August 1992). See generally Fred Kent and Steve Davies, The Role of Transit in Creating Livable Metropolitan Communities (Washington, D.C. Transportation Research Board, Transit Cooperative Research Program, Project H-04D, FY 1993, April 1996); New Jersey Transit, Planning for Transit-Friendly Land Use: A Handbook for New Jersey Communities (Trenton, N.J.: New Jersey Transit, June 1994); Tri-County Metropolitan Planning District (TRI-MET), Planning and Design for Transit Handbook: Guidelines for Implementing Transit Supportive Development (Portland, Ore.: TRI-MET, January 1996); Marya Morris, Creating Transit-Supportive Land-Use Regulations, Planning Advisory Service Report No. 468 (Chicago: American Planning Association, December 1996); City of San Diego, Land Guidance System, Transit-Oriented Development Design Guidelines, approved by the City Council, August 4, 1992, prepared by Calthorpe Associates for the City of San Diego (San Diego: Planning Department, October 1992); Peter Calthorpe, The Next American Metropolis (New York: Princeton Architectural Press, 1993).
[277 ] See e.g., Tri-Met Metropolitan Transportation District, Planning and Design for Transit Handbook: Guidelines For Implementing Transit Supportive Development (Portland, Or.: Tri-Met, 1996); City of San Diego, Land Guidance System, Transit-Oriented Development Design Guidelines (San Diego: City of San Diego, October 1992); Maryland-National Capital Park and Planning Commission, The Approved and Adopted Transit District DevelopmentPlan for the Prince George's Plaza Transit District Overlay Zone (Upper Marlboro, Md.: The Commission, July 1992); Arlington County, Va., Board, Rosslyn Station Area Plan Addendum (Arlington, Va.: Arlington County Economic Development Division, January 1992); and City of Chicago Department of Planning and Development and the Neighborhood Capital Budget Group, Community Green Line Planning Project. (Chicago: The Department, December 30, 1994).
[278 ] For a discussion of planning approaches for central business districts, see Emanuel Berk, Downtown Improvement Manual (Chicago: APA Planners Press, May 1976); Downtown Development Handbook, 2d ed. (Washington, D.C.: Urban Land Institute, 1992).
[279 ] See generally Smart Growth Network, Urban and Economic Development Division, Office of Policy, Planning and Evaluation, U.S. Environmental Protection Agency, An Integrated Approach for Brownfields Redevelopment: A Priority Setting Tool (September 1996) at: www.smartgrowth.org/library/ brownfields_tool/brownfields_priority_set.html.
[280 ] The Housing Act of 1949, Pub. L. No. 171, 63 Stat. 413, 432 U.S.C. 1441 et seq. The federal urban renewal provisions were amended many times, most significantly in 1954, when rehabilitation and conservation were added to clearance activities. 42 U.S.C. 1450 et seq.
[281 ] See Martin Anderson, The Federal Bulldozer: A Critical Analysis of Urban Renewal, 1949-1962 (Cambridge, Mass.: M.I.T. Press, 1964); James Q. Wilson, ed., Urban Renewal, The Record and The Controversy (Cambridge, Mass.: M.I.T. Press, 1967).
[285 ] For a comprehensive review of "brownfields" pilot programs, see the U.S. EPA web site: www.epa.gov/swerosps/bf/. A useful U.S. EPA guidance document, OSWER Directive No. 9355.7-04, "Land Use in the CERCLA Remedy Selection Process" which deals with local land use considerations in brownfields cleanups appears at: www.epa.gov/swerosps/bf/ascii/land_use.txt. See also James Schwab, "Redeveloping Brownfields," PAS Memo (American Planning Association, May 1997); Charles Bartsch and Elizabeth Collaton, Brownfields: Cleaning and Reusing Contaminated Properties (Westport, Conn: Praeger, 1997).
[288 ] For examples of descriptions of similar specific plans, see American Law Institute (ALI), A Model Land Development Code: Complete Text and Commentary (Philadelphia, Pa.: ALI, 1976), 2-211 (Specially Planned Areas); Cal. Gov't Code, Art. 8 (describing "specific plans"). See also Peter Buchsbaum, "Retrofitting Edge Cities into Centers," Land Use Law& Zoning Digest 50, No. 6 (June 1998): 3-9 (discussion of N.J. Stat. Ann. 40A:12A-1 et seq., 1992 Local Redevelopment and Housing Law).
[290 ] Typically, a local government that prepares a redevelopment area plan will enact a resolution defining the extent of the area to be covered by the plan and directing an agency of the local government, such as the planning agency or a redevelopment agency, to prepare the plan. The date of that resolution would signify the start of the process.
[291 ] This commentary and parts of Section 7-401 are based in part on "Collaborative Processes for Preparing and Adopting a Comprehensive Plan," by Patricia Salkin in Modernizing State Planning Statutes: The Growing Smart Working Papers, Vol 2, Planning Advisory Service Report No. 480/481 (Chicago: American Planning Association, September 1998).
[292 ] For example, the SCPEA required, before adoption of the master plan or any such part, extension or addition, "at least one public hearing thereon" by the municipal planning commission. SCPEA, 8.
[296 ] Kaiser and Godschalk, "Twentieth Century Land Use Planning," 382. See also David G. Godschalk et al., Pulling Together: A Planning and Development Consensus Building Manual (Washington, D.C.: Urban Land Institute, 1994) (observing that conflict management is an essential part of contemporary public participation).
[311 ] Parts of this commentary are drawn from Nancy Stroud, "State Review and Certification of Local Plans," in Modernizing State Planning Statutes: The Growing Smart Working Papers, Vol. 1, PAS Report 462/463 (Chicago: American Planning Association, March 1996), 85-88.
[316 ] Parts of this commentary are drawn from Nancy Stroud, "State Review and Certification of Local Plans," in Modernizing State Planning Statutes: The Growing Smart Working Papers, Vol. 1, PAS Report 462/463 (Chicago: American Planning Association, March 1996), 85-88.
[317 ] Florida: Fla. Stat. Ann. 163.3184 to .3191; Georgia: Ga. Code Ann. 36-70-25; Minnesota:Minn. Stat. 394.232, subdiv. 5; New Jersey: N.J. Stat. Ann. 52:18A-202 et seq.; Oregon: Ore. Rev. Stat. 197.250 to .283; Rhode Island:R.I. Gen. Laws 45-22.3-1 to -8; Vermont: Vt. Stat. Ann. tit. 24 4305, 4345a, 4350; Washington: Wash. Rev. Code 36.70A.130, 250 et seq.
[318 ] Under British law, revisions of or amendments to structure plans may be subject to a procedure called an "examination in public" (EIP) before approval by the Secretary of State for the Environment The structure plan consists of a written statement which sets out the local planning authority's policies and general proposals for the development and other use of land in the area, and a key diagram which illustrates the policies and general proposals in the written statement. Prior to approving or rejecting a structure plan, the Secretary of State (who is chief of the Department of the Environment) determines whether to hold an EIP during the plan's review period. An EIP is held when the Secretary of State determines that further information and investigation are needed, in particular on those matters that arise from conflicts between the plan's proposals and national or regional policies, or those of neighboring planning authorities, or between the various policies in the plan itself, or where there are issues that involve substantial unresolved controversy. A panel of up to three persons is appointed to conduct the EIP. The Secretary identifies, as the subject of the EIP, only those matters arising from the submitted proposals on which he or she needs to be better informed. It is on these issues that the panel's inquiry focuses, not on the full body of the plan. The panel invites individuals to testify in this regard, but the EIP is not a public hearing open to all. The examination itself is to take the form of a "probing discussion" to draw attention to those issues on which information and clarification are needed. A record of the EIP is developed and a report to the Secretary is written. The panel's report may contain recommendations that will form the basis for modifications to the proposed structure plan. Department of the Environment (U.K.) and the Welsh Office, Structure plans: The examination in public (London: HMSO, 1989), 1-19. See Town and Country Planning Act, 1990, Ch. 8 5 (describing "examination in public" procedure). For a discussion of the examination in public procedure, see Neal Alison Roberts, The Reform of Planning Law: A Study of the Legal, Political and Administrative Reform of the British Land-use Planning System (London: MacMillan Press, 1976), chapters 6, 7 and 11; J. Barry Cullingworth and Vincent Nadin, Town and Country Planning in the UK, 12th ed (London: Routledge, 1997), 297-298; R. Phelps, "Structure plans: the conduct and conventions of examinations in public," Journal of Planning and Environment Law (1995): 95-101.
[324 ]One reviewer of this Section questioned the need for a de novo review at both the administrative level and before the Comprehensive Plan Appeals Board. The reviewer pointed out that, if resources are going to be spent in both preparing and reviewing the plan, then there should be some deference to the local government and the administrative officials who initially review the plan. At each subsequent review, the reviewer pointed out, it is not reasonable to expect the administrative official or board to review the plan in more depth than the first reviewer. Certainly this is an alternative point of view, and has validity. However, as stated above, the review is not simply mechanical or wholly objective; it has political or policy content to it. It is for that reason that the Guidebook allows the reviewing body to conduct a new review of the proposed plan.
[325 ] One alternative is dispute resolution between the local government and the state. In Minnesota, disputes between a county and the state office of strategic and long-range planning regarding the development, content, or approval of voluntary community-based land-use plans by the state may be subject to mediation under provisions of the Community-Based Planning Act. Minn. Stat. 572A.01 (1998).
[326 ] San Diego Association of Governments (SANDAG), Regional Growth Management Strategy (San Diego: SANDAG, 1993), 67-117 (describing "local-regional consistency," "local-regional consistency checklist," and "self-certification process and schedule").
[337 ] See Section 4-210, Adoption of Plans (Four Alternatives); Section 4-211, Certification of Plan; Availability for Sale; Section 6-303, Adoption of Regional Plan; Section 6-304, Certification of Regional Plan, Availability for Purchase.
[338 ] This language assumes a legislative body like a city council where the number of persons who can vote is fixed by statute or charter In New England states, where the town meeting form of government may exist, the legislative body would be the town meeting. Consequently, the language here may need to be modified to require "a majority of all present and voting members" of the town meeting approving the plan.
[340 ] See, e.g., U.S.C.A. 3601 et. seq. (the Federal Fair Housing Act); City of Edmonds v. Oxford House, Inc. 514 U.S. 725 (1996) (holding that non-occupancy based definition of "family" was not exempt from provisions of the Fair Housing Act, U.S.C.A. 3607(b)(1)); see generally Daniel Lauber, "A Real LULU: Zoning for Group Homes and Halfway Houses Under the Fair Housing Amendments Act of 1988," John Marshall L.Rev. 29, No. 2 (Winter 1996): 369-407.
[341 ] John Vranicar, Welford Sanders, David Mosena, Streamlining Land Use Regulation: A Guidebook for Local Governments, prepared for the U.S. Department of Housing and Urban Development, Office of Policy Development and Research by the American Planning Association (Washington, D.C.: U.S. GPO, November 1980), esp. Ch. 5; NAHB National Research Center, Affordable Residential Land Development: A Guide for Local Government and Developers prepared for the U.S. Department of Housing and Urban Development, Office of Policy Development and Research (OPDR) (Washington, D.C.: OPDR, November 1987); Charles Lerable, Preparing a Conventional Zoning Ordinance, Planning Advisory Service Report No. 460 (Chicago: American Planning Association, 1995).
[343 ] N.J. Stat. Ann. 40:55D-89 and -89.1 (1997). Section 89.1 reads as follows: "The absence of the adoption by the planning board of a reexamination report pursuant to [ 40:55D-89] shall constitute a rebuttable presumption that the municipal development regulations are no longer reasonable."
[344 ] Id. Florida statutes also require that the local planning agency prepare and that the governing body adopt, in whole or in part, a report assessing and evaluating the success or failure of the comprehensive plan, or element or portion thereof. Such a report much be completed at least once every five years after the adoption of the plan and also sent to the state land planning agency. The report is to suggest changes needed to update the plan or its elements. Fla. Stat. 163.3191 (1996). See also Cal. Evid. Code 669.5 (1998), under which land use regulations that unduly restrict residential development lose the presumption of validity.
For an early discussion of the use of the comprehensive plan as a presumption-shifting device in supporting the constitutionality of local zoning and subdivision regulations, see also William A. Doebele, Jr., "Improved State Enabling Legislation for the Nineteen-Sixties: New Proposals for the State of New Mexico," Natural Resources Journal 2 (1962): 321, 336-337; William A. Doebele, Jr., "Horse Sense About Zoning and the Master Plan," Zoning Digest 13 (1961): 208, 212-14. Cf. Daniel R. Mandelker and A. Dan Tarlock, "Shifting the Presumption of Constitutionality in Land-Use Law," Urban Lawyer 24, no. 1 (Winter 1992): 1-50, at 47-49. Mandelker and Tarlock favor linking presumption-shfting to a local government's comprehensive plan to detect "political malfunction" in a community that is producing bizarre or unjustified land-use decisions, like single-tract spot zoning. Under their approach, a land-use decision that is consistent with a comprehensive plan is presumed constitutional and one that is not is presumed unconstitutional. "The advantage of this approach is that it allows a court to avoid making an independent judgment on a local government's political process as a basis for presumption-shifting. Instead, the court can rely on the comprehensive plan as the basis for deciding when the presumption should shift. The objection to this approach is that reliance on the plan is not justified if it is also produced by a process that malfunctions politically." Id., 48-49.
[346 ] This language gives the local government the ability to undertake the general reexamination more often than every five years, for example, when there is a significant change in market conditions that will affect the assumptions and projections of the plan.
[347 ] See Stuart Meck, "A Model Request for Proposals for Drafting a New Zoning Code," Zoning News (Chicago: American Planning Association, September 1996): 1-4. Some of the topics in the list of considerations are drawn from this article.
[348 ] Portions of this commentary are based, in part, on "A Working Paper on Official Maps," by Brian W. Blaesser and Daniel R. Mandelker, in Modernizing State Planning Statutes: The Growing Smart Working Papers, Vol. 2, Planning Advisory Service Report, No. 480/481 (Chicago: American Planning Association, September 1998). See also Daniel R. Mandelker and Brian W. Blaesser, Corridor Preservation: Study of Legal and Institutional Barriers, prepared for the Office of Real Estate Services (Washington, D.C.: Federal Highway Administration, 1996). Professor Mandelker also assisted in the drafting of the model corridor map statute in Section 7-501. Mr. Blaesser critiqued several drafts of the model statute as well.
[357 ] Arnold v. Prince George's County, 311 A.2d 223 (Md. 1973) (indication of road in master plan not a taking); Marvin E. Neiberg Real Estate Co. v. St. Louis County, 488 S.W.2d 626 (Mo. 1973) (selection of highway route under agreement between county and state highway department for selection of secondary state highways not a taking).
[358 ] People ex rel Dep't of Transp. v. Diversified Properties Co., III, 17 Cal. Rptr.2d 676 (Cal. App. 1993) (city refused to issue permit because state intended to built freeway on the land, and city and state had informal agreement to prevent development of intended freeway land); San AntonioRiver Auth. v. Garrett Bros., 528 S.W.2d 266 (Tex. Civ. App. 1975) (subdivision plan rejected because of specific request of river authority which intended to build dam on property); Plainfield v. Borough of Middlesex, 173 A.2d 785 (N.J.L. Div. 1961) (privately-owned land previously zoned residential rezoned to allow only parks and schools). But see Dep't of Transp. v. Lundberg, 825 P.2d 641 (Ore. 1992) (citing requirement of sidewalk dedication not done to depress value of land for compensation), cert. den'd 506 U.S. 975 (1992).
[359 ] Lomarch Corp. v. City of Englewood, 237 A.2d 881 (N.J. 1968). See also Urbanizadora Versalles, Inc. v. Rivera Rios, 701 F.2d 993 (1st Cir. 1983) (invalidating official map reservation for highway that was in effect for 14 years); Jensen v. City of New York, 369 N.E.2d 1179 (N.Y. 1977) (reservation made property "virtually unsalable"); Miller v. City of Beaver Falls, 82 A.2d 34 (Pa. 1951) (invalidating reservation for parks and playgrounds although reservation for streets previously upheld).
[373 ] Edward M. Bassett, Frank B. Williams, Alfred Bettman, and Robert Whitten, Model Laws for Planning Cities, Counties, and States (Cambridge, Mass.: Harvard University Press, 1935), 89-92, 110-113.
[374 ] Advisory Commission on Intergovernmental Relations (ACIR), "An Act to Authorize Local Governments to Adopt Official Maps, in ACIR State Legislative Program: Environment, Land Use, and Growth Policy, Vol. 5 (Washington, D.C.: U.S. GPO, 1975), 116, 118.
[376 ] A local government's fiscal capacity, priorities, and project management capacity may change over time and it should have the flexibility to add, subtract, or change the sequence of projects in a CIP. A shortfall in general fund revenues may result in the local government postponing a project, such as purchase of land for and development of a neighborhood park, until it can accumulate enough money to pay for it.
[381 ] Ariz. Rev. Stat. Ann. 11-1106 (Supp. 1997) (applying to counties that adopt impact fees); Ga. Code Ann. 36-71-3(a) (Supp. 1997) (CIP as part of adopted comprehensive plan); Haw. Rev. Stat. 46-142 (1997); Idaho Code 67-8206 (Supp. 1997) (CIP must be based on projections of land uses and population over at least a 20-year period); 604 Ill. Comp. Stat. Ann. 5/5-905(h) and 5/5-910 (1997) (comprehensive road improvement plan based on land use assumptions projected over 10-year period); Ind. Code Ann. 36-7-4-1318 (Burns Supp. 1997) (zone improvement plan based on projected development over 10-year period); Me. Rev. Stat. Ann. tit. 30-A, 4354(2)(C) (West Supp. 1997) (schedule for use of funds to be consistent with capital investment component of comprehensive plan); N.H. Rev. Stat. Ann. 674:21(V)(b) (1997); N.M. Stat. Ann. 5-8-3 to 5-8-5 (1997); Or. Rev. Stat. 223.309 (1997); Pa. Stat. Ann. tit. 53, 10502(A)(a)(Supp. 1997) (CIP must reflect land use assumptions projected over period of at least five years);Tex. Local Govt. Code Ann. 395.046 (West Supp. 1997) (CIP to be based on land use assumptions projected over period of at least 10 years); Vt. Stat. Ann. tit. 24, 5203(A)(a) (1997); Va. Code Ann. 15.2-2321 (Michie Supp. 1997) (CIP adopted as amendment to comprehensive plan or 6-year plan for county secondary roads); W. Va. Code 7-20-6(a)(7) (1997).
[382 ] Annual operating and maintenance costs are included in order that they may be incorporated into the operating budget. For example, a new wastewater treatment plant will have additional costs related to routine maintenance as well as electricity.
[383 ] Capital improvement programs may be financed from different funds, such as a general fund, which would include property, income, and sales taxes (if applicable), fees, fines, and interest, and other unrestricted sources of revenue, or a water fund, which would include revenues from water user charges and water taps. A water fund is a restricted fund for a public utility and cannot, however, be used to finance, for example, a sewer project. Similarly, an impact fee is segregated into a fund that is only to be used for specific types of improvements related to the impact of new development. Revenues from an impact fee could not to be used to remedy existing deficiencies in infrastructure, such as road resurfacing.
[384 ] Note that an agreement as described above is a contract with some other entity to perform, on an ongoing basis, some aspect of the general implementation of the comprehensive plan. It is not a development agreement, where the local government and a landowner form an agreement regulating the particular use of a particular parcel of land.
[385 ] Arizona: Ariz. Rev. Stat. Ann. 11-952 (1997); Colorado: Colo. Rev. Stat. Ann. 29-1-203 (1997); Illinois: 55 Ill. Comp. Stat. 220/1 et seq. (1997); Kansas: Kan. Stat. Ann. 12-2901 et seq. (1997); Michigan: Mich. Comp. Laws 124.1 et seq. (1998); North Carolina: N.C. Gen. Stat. 60A-460 et seq. (1998); Pennsylvania: 53 Pa. Cons. Stat. 2301 et seq. (1998); Washington: Wash. Rev. Code. 39.34.010 et seq. (1997).
[386 ] Ariz. Rev. Stat. Ann. 11-952(D) (all intergovernmental agreements must be reviewed by the attorneys for the parties to ensure each party has the "powers and authority granted under the laws of this state" to perform under the agreement); Kan. Stat. Ann. 12-2904(f) (review of proposed agreements by state Attorney General, with written evaluation to governmental parties, and state review when proposed agreement affects state agency); 53 Pa. Cons. Stat. Ann. 2314 (review by Local Government Commission of all proposed agreements with the state, other states, agencies of other states, and federal agencies); Wash. Rev. Code 39.34.050 (state review of proposed intergovernmental agreements affecting state agencies).
[390 ] Note that the implementation agreement may be subject to competitive bidding requirements of the state or local government as well as any other requirements governing the awarding of contracts, including those of the federal government if federal monies are involved.
[391 ] Florida requires an evaluation and appraisal report of the local comprehensive plan that is to be sent to the governing body and the state land planning agency at least once every five years after the adoption of the comprehensive plan. While not using the term "benchmark," the statute asks that the report assess "the comprehensive plan objectives as compared with actual results at date of report." Fla. Stat. 163.9191(2)(c) (1997).
[394 ] King County Office of Budget and Strategic Planning, King County Benchmarking Report, 1996 (Seattle: The Office, December 16, 1996). See also City of Seattle, Office of Management and Planning, Seattle's Comprehensive Plan: Monitoring Our Progress (Seattle: The Office, 1996).
[395 ] Other states, like Minnesota and Utah, have benchmarking programs that are part of a state strategic planning effort. See, e.g., Minnesota Planning, Minnesota Milestones: A Report Card for the Future (St. Paul, Minn.: Minnesota Planning, 1992); and State of Utah Strategic Planning Committee, Utah Tomorrow Strategic Plan (Salt Lake, Ut.: The Committee, 1996), at http:// www.governor.stat.ut.us/planning/utahom/master96.htm. The Minnesota report is authorized by Minn. Stat. 4A.01 (1997) (directing the state office of strategic and long-range planning to develop an integrated long-range plan for the state). The Utah plan is authorized by Utah Stat. 38-18-1(8) (1997) (directing Utah Tomorrow Strategic Planning Committee to recommend to the legislature and governor on an ongoing strategic planning process for the state).
[400 ] See Meck and Thompson, "Benchmarking: Developing Report Cards on Planning"; Ore. Rev. Stat. 197.763(2) (1997) (describing performance measures adopted by metropolitan service district); David N. Ammons, Municipal Benchmarks: Assessing Local Performance and Establishing Community Standards (Thousand Oaks, Ca.: Sage, 1996).