Monday, September 25, 2017

Stephen R. Miller on Teaching about the Comprehensive Land Use Plan: Question 4 in the Contemporary Issues in Teaching Land Use Series

While updating the recently released ninth edition to the casebook Land Use and Sustainable Development Law, the four co-authors engaged in numerous spirited discussions about teaching land use. We wanted to open this discussion to others to get their comments and thoughts as we continue to rethink the teaching of this important subject. Each month on this blog, we will introduce a new topic relevant to teaching land use. The topics will loosely follow our casebook chapters, and we are now up to Chapter 2. We'll explore each topic through four blog posts, one from each of us. We hope you find the discussion enriching, and encourage you to contribute to the conversation in the comments section below or off-line.  -- John NolonPatricia SalkinStephen Miller, & Jonathan Rosenbloom.]

Contemporary Issues in Teaching Land Use

Question 4:  Teaching about the Comprehensive Land Use Plan

by Stephen R. Miller

Teaching the comprehensive plan is complicated, and my approach probably has more personal history in it than it does for some professors.  I went to law school, planning school, and practiced land use law in California.  There I was taught the principle that the comprehensive plan—known in California as the general plan—is the “constitution of land use.”  See Concerned Citizens of Calaveras Cty. v. Bd. of Supervisors, 166 Cal. App. 3d 90, 97 (Cal. Ct. App. 1985) (“The general plan is atop the hierarchy of local government law regulating land use. It has been aptly analogized to ‘a constitution for all future developments.’”).  As a result, the general plan in California has primary control over the use of land in a local government and the zoning is the implementation of that general plan.  This arises through the consistency requirement, which is the best known and nationally applicable requirement used by several other states.  See id. at 97 (“If a general plan is to fulfill its function as a “constitution” guiding “an effective planning process,” a general plan must be reasonably consistent and integrated on its face.  A document that, on its face, displays substantial contradictions and inconsistencies cannot serve as an effective plan because those subject to the plan cannot tell what it says should happen or not happen.”). But in California, there are additional requirements of the general plan derived from Guidelines and case law that make the plan have teeth.  Perhaps most notably, an environmental impact report (EIR) is required for a general plan, which provides a whole host of environmental considerations, and intellectual honesty, to the process.  As an example, see this EIR for the general plan of Davis.

Where I now teach, in Idaho, the comprehensive plan is more like most states where the plan is considered an advisory document.  There is no requirement of consistency; in other words, a re-zone can flagrantly conflict with a land use map designation in the comprehensive plan.  See Evans v. Teton Cty., 139 Idaho 71, 76, 73 P.3d 84, 89 (2003) (“A comprehensive plan is not a legally controlling zoning law, it serves as a guide to local government agencies charged with making zoning decisions. . . . The “in accordance with” language of I.C. § 67–6511 does not require zoning decisions to strictly conform to the land use designations of the comprehensive plan.”).  Idaho courts have also made a facial challenge to a comprehensive plan almost impossible through heightened standing requirements to challenge the plan.  Indeed, in a recent case, a large family farm in a rapidly urbanizing agricultural county challenged the analysis in an agricultural element of a newly adopted comprehensive plan.  The Idaho Supreme Court held that the farmer did not have standing to challenge the agricultural element of the comprehensive plan, which makes it pretty clear that almost no one can facially challenge a comprehensive plan in Idaho.  See generally Coal. for Agric.'s Future v. Canyon Cty., 160 Idaho 142, 147–48 (2016).  Idaho also does not require any environmental review, which means commissioners and local decisionmakers often have little idea of the environmental effects of their decisions.

While many of my students will stay in Idaho, much of the real estate practice of local firms bleeds over state lines.  The Boise region reaches into Oregon; the northern panhandle of the state is close to Washington and Montana.  The ubiquity of California means many businesses here have operations in the Golden State.  All of the surrounding states—Washington, Oregon, and Montana—have approaches to comprehensive plans that are more like California than they are like Idaho.  As a result, I feel that I must teach both the “constitution of land use” and the “advisory” approaches.  And so, I spend more time on comp plans than most professors probably do. 

In addition, when talking about Idaho and the advisory approach, I also add in one other layer of analysis that foreshadows some of the later discussion of the administrative nature of land use decisionmaking.  I pull out the findings requirements for discretionary permits for the city of Boise, which are almost identical to every major city in the U.S.  In those discretionary permits, we find language that states the necessary findings for a conditional use permit, which are:

  1. the location is compatible to other uses in the general neighborhood;
  2. The proposed use will not place an undue burden on transportation and other public facilities in the vicinity;
  3. The site is large enough to accommodate the proposed use and all yards, open spaces, pathways, walls, fences, parking, loading, landscaping, and such other features as are required by this Code;
  4. The proposed use, if it complies with all conditions imposed, will not adversely affect other property of the vicinity;
  5. The proposed use is in compliance with the Comprehensive Plan;
  6. [several other project specific findings omitted.]

Boise City Code § 11-03-04(6).  In reviewing this language, I point out that here, there is a legally mandated requirement to find that a project is “in compliance with the Comprehensive Plan.”  Indeed, in heated battles over a discretionary permit, a denial of a project almost always relies upon findings that the project is not in compliance with the comprehensive plan.  If the commission or council cannot make these findings, they cannot deny the permit.  They also cannot grant the permit, of course, without making these compliance findings.

Even in states, like Idaho, where the comprehensive plan is advisory and facially hard to challenge, the comprehensive plan retains a special, legal importance in the granting of discretionary permits and the sufficiency of findings for those permits.  In this posture, the findings are legally mandated requirements subject to appeal, and it is in this use that the comprehensive plan becomes especially powerful and has legal value in the “advisory” states.  That this is why, even in states like Idaho, lawyers need to be well-attuned to the comprehensive plan:  the granting of discretionary permits normally turns on the sufficiency of findings about compliance with the comp plan.

The ninth edition of Land Use and Sustainable Development Law, is now available for the 2017-18 academic year.  Feel free to contact any of the co-authors if you would like to discuss the book--or just teaching land use law in general.

Land Use Book Image

Previous posts in the Contemporary Issues in Teaching Land Use series

Question 1: Teaching the Crossroads Where Nuisance & Zoning Meet [Rosenbloom | Nolon | Salkin | Miller]

Question 2:  Teaching the 1916 NYC Zoning Ordinance and the Standard State Zoning Enabling Act [Rosenbloom | Nolon | Salkin | Miller]

Question 3:  Teaching the Economics of Land Use Regulation and Ethics [ Salkin | Nolon | Miller | Rosenbloom]

Question 4:  Teaching about the Comprehensive Land Use Plan [Salkin | Nolon | Miller | Rosenbloom] 

http://lawprofessors.typepad.com/land_use/2017/09/stephen-r-miller-on-teaching-about-the-comprehensive-land-use-plan-question-4-in-the-contemporary-is.html

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