Zoning Practice — December 2005

Ask the Author

Here are reader questions answered by Brian Ohm, author of the November 2005 Zoning Practice article "Let the Courts Guide You: Planning and Zoning Consistency."

Question:

My county recently rezoned my nine acres of land Urban Residential as part of a new comprehensive plan, but six of the nine acres are landlocked by a large pond (we have a 15-foot deeded easement right of ingress/egress for access to this acreage). My property shares a 400-ft boundary (mostly the pond) with a neighboring subdivision, but the other three sides border a conservation district. I requested Conservation zoning because the land cannot be developed for residential use. The Board of Supervisors, who were initially receptive, denied the request after concerns were expressed by residents of the subdivision. Can they force zoning that conflicts with the stated purpose of that zoning (specifically, moderately dense residential development) on land that cannot be used for that purpose?

Answer from author Brian Ohm:

The issue of Zoning Practice that I wrote addresses court interpretations of the statutory requirement in some states that local actions, like zoning ordinances, need to be consistent with a comprehensive plan. It sounds like your question is really a pure zoning question.

First, let me say your question presents a unique perspective. It is the reverse of the more common situation where neighbors often prefer being next to a conservancy area and oppose new residential development.

Second, without more detail I can only speculate as to what is going on in your situation. The "conservancy zoning" district could be written in such a way that the local government for where the parcel is located does not believe it is an appropriate designation for your property. You mention your land is bordered on three sides by a conservation district. It is not clear to me whether you are talking about a conservation zoning district or conservation area owned by the public that may or may not have some type of conservancy zoning designation. Sometimes communities may only apply a conservancy designation to publicly owned land.

Also, a zoning designation for moderately dense residential housing does not mean that you have to develop the property. You can continue to keep the parcel in its existing state. Depending on your state law for conservation easements, you might be able to place a conservation easement on your property to permanently limit future development of your parcel even though the parcel is zoned for residential purposes.

The zoning ordinance may also include a provision in the moderately dense residential zoning district that allows open space as a permitted use within that district. Your use may not actually conflict with the provisions for that residential zoning district.

Finally, while communities often strive to have zoning reflect the existing or proposed uses of property there is no general legal requirement that a newly adopted zoning ordinance must perfectly match the existing uses of a parcel.


Question from Shelly Johnson, Deputy Director of City Planning, City of Hernando, Mississippi:

How detailed do you think the future land use map should be? We have heard differing opinions on this for years. Does it need to be parcel-specific (almost like a future zoning map) or can it be more general? And if so, how do you interpret a very general map when consulting the plan and map for a rezoning?

Answer from author Brian Ohm:

There is no universal black and white rule for how detailed a future land use plan map should be. Comprehensive plans are intended to provide general guidance so a plan's future land use map should not be as detailed as a zoning map. Determining the level of detail for a plan map presents a continuum of options. A plan map that is very detailed might prove to be too inflexible as unforeseen events occur in the future. A plan map that is too general may prove to be of little value in providing guidance for future decisions.

In states that require state or regional agency review of local comprehensive plans, the agencies responsible for review may provide some guidance for how detailed the future land use map must be. State enabling laws defining a "comprehensive plan," or other laws, may also provide some guidance for how detailed the future land use map must be.

In the absence of that type of guidance, determining the level of detail in a plan map is really a policy decision for the local community. Several factors can influence a community's determination of the level of detail for the future land use map. One factor may relate to the type of community. For example, in a stable fully developed community, the future development pattern might be somewhat certain, so the community may have a very detailed future plan map. A developing community, on the other hand, may have large parcels that will be developed. The developing community wants to promote mixed-use. However, the community is not certain which exact spot within a larger parcel might be a commercial use so the future land use plan map might be more general.

Also, if you are dealing with a type of community that has certain features that will strongly influence the development pattern, the future land use map may be more detailed. For example, if you are in a community that has numerous natural resource features and you are in a state that has very strong laws that limit the development of those resources, the future land use map might be more detailed because these limitations are somewhat certain. The plan helps serve the function of informing people that these natural features are present in the community and there are various laws beyond the control of the community that protect the resources from development.

Another factor relates to the format of the plan. For example, a community could have a very general future land use map but have very detailed policies and procedures outlined in the text of the plan that provide very detailed guidance for how change is supposed to occur consistent with the plan map. Conversely, the community could have a very detailed future land use map but have policies and procedures in the plan text that soften the detail of the map. While people often focus on plan maps, the text of a plan can be more important than a map.

Another factor that may influence the detail of the plan is often the the structure of planning in the community. For example, a community may have a hierarchy of plans. The community's comprehensive plan provides general guidance for a variety of more detailed sub-area plans (neighborhood plans, corridor plans, etc.). The sub-area plans are developed consistent with the general guidance provided by the comprehensive plan. The comprehensive plan serves the function of helping to coordinate the disparate sub-area planning activities. The sub-area plans may be parcel-specific and serve as the basis for community decisions.

Another part of the planning structure in the community relates to how the plan will be implemented through the zoning ordinance. A plan map may provide parcel specific detail that designates certain parcels as "residential." There may be be fifteen different residential zoning classifications that are consistent with that plan map designation.

A final determining factor is the political process. The people who have input into the development of the plan (professional planners, the plan commission, the governing body, various interest groups, etc.) can also influence how detailed a future plan map might be. For example, a very vocal open space advocacy group might want to ensure that a certain area of the city is designated for a future park. That group persuades the plan commission and the governing body to designate the specific parcels for future acquisition. There may also be other issues where, as a matter of policy, the plan map is very detailed about some aspect of the community because the plan commission wants the community to be inflexible about that aspect of the community that is important to them.

As for interpreting very general plan maps, I think it is important for the community to have accompanying text in the plan (policies, procedures, etc.) that provides guidance for rezonings.

Question from Bryce Kelley, Director of Planning & Economic Development, Van Buren, Michigan:

Thank you for the fine article in the November issue of Zoning Practice. It has provided me with some new information and thoughts that I will flesh out.

My question to you goes to the impact and importance of state land-use and comprehensive plan legislation. I am continually counseled by our attorneys that Michigan is not a "strong" land-use planning state. In your research did you find this to an accurate statement?

Our township’s land-use policy and zoning regulations and actions are based on consistency, but we are continually cautioned by township legal counsel that Michigan laws are based on landowner property rights and, despite practicing consistency and doing our very best to adhere to the township master plan, courts have ruled against the township actions and in favor of the applicant /developer.

I think a process that permits a "citizen challenge" that is a permitted recourse completes part of the circle and to an extent validates the public input and process that needs to be part of all master plan and future use plans.

Answer from author Brian Ohm:

I am glad you found the article useful.

To my understanding, the Michigan state statutes do not require consistency between zoning decisions and an independently adopted local comprehensive plan. In that sense, Michigan is not a "strong" land-use planning state like the states covered in the article.

Many local governments in states that are not strong land-use planning states nonetheless follow the approach of trying to make zoning decisions consistent with their local comprehensive plan. However, without state law (either legislative or court-made) that also requires consistency between zoning decisions and the local comprehensive plan, local efforts to promote consistency may not be supported by the courts.

Based on your question, that appears to be what is happening in some of the land-use disputes in your township. These court decisions undermine the importance and effectiveness of comprehensive planning.

State statutes that expressly provide for citizen challenges to consistency determinations have been effective at getting courts in those states to acknowledge the importance of a comprehensive plan as a basis for local decision making.