Monday, September 11, 2017
Patricia Salkin on Contemporary Issues in Teaching Land Use: Question 4: Teaching about the Comprehensive Land Use Plan
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 Nolon, Patricia Salkin, Stephen Miller, & Jonathan Rosenbloom.]
Contemporary Issues in Teaching Land Use
Question 4: Teaching about the Comprehensive Land Use Plan
by Patricia Salkin
Sections 3 and 4 of Chapter 2 of the casebook introduces the comprehensive land use plan to students. The concept of planning preceding zoning and land use controls is important. After all, zoning enabling acts insist that zoning be in conformance with the comprehensive plan. This of course forms the basis for land use regulations to withstand challenges of being arbitrary and capricious. What exactly a comprehensive plan looks like, the process of how it is developed and adopted, and the legal significance of the plan are all important.
It is interesting to note the deliberate separation of planning and regulation in the Herbert Hoover Department of Commerce in the late 1920’s. By writing a separate City Planning Enabling Act and a Standard Zoning Enabling Act, the message that went out to the states was that planning and zoning were two different animals. Consequently, while most states enacted the standard zoning act, fewer states enacted the city planning act. The thinking at the time, perhaps in light of the Euclid case in 1926, was that zoning could stand on its own sturdy feet and need not be viewed as a means to the end of carrying out the comprehensive plan. Many years passed before legislatures in most states were convinced of the need to relate regulation to the foundation of planning, and in some jurisdictions the separation of regulation from planning is still the order of the day. Much of the confusion exhibited by courts when confronted with consistency arguments probably stems from this original separation.
Question: What strategies do you employ in class to help develop an appreciation for the comprehensive land plan and its legal significance? What do you think are the most important teaching takeaways when discussing the comprehensive plan?
I typically use two teaching strategies. First I ask students to access a copy of a comprehensive plan for a municipality of their choice. The hope is that they will then use the same municipality for an assignment in Chapter 3 where I ask them to obtain a copy of a zoning ordinance. In class, I ask them whether they were able to find a written plan for the municipality of their choice. It is not uncommon for one or two people to say they looked for one from a particular municipality but could not find one. This is because in some states, the comprehensive plan need not be a written document. That reality leads to a discussion as to whether plans should be written and what happens when communities change before plans formally change. Next I ask the students to look for the date when the plan was last adopted or updated. Invariably, students will report plans that are very recent, and then plans that are more than ten years old. The wide variance allows for a discussion about appropriate intervals for plan review. The third major point to explore with the plans is how they are organized, the topics that are covered, and whether students can get a sense from the plan about the desired community sense of place.
Following this, I use the state enabling statute from our host State (NY) and I ask the students to answer the following questions:
- With respect to preparation of a comprehensive plan:
- Who prepares it?
- Professionals? Members of the public? Existing body/board? A new entity?
- How is it prepared?
- How is community input collected? Who makes what decisions and when with respect to content?
- What is the timeframe for the preparation of a plan?
- How long should plan preparation take?
- Is there any required coordination between boards and/or existing plans?
- What is the role of the planning board, the legislative body, and other boards that might exist? Should other plans such as coastal zone management plans, disaster mitigation plans, and others be part of the comprehensive land use plan or should they be separate? Must they be consistent with each other?
2. With respect to the process for adoption of the plan:
- How many hearings are required?
- Is one enough? Are two enough? How long should the hearings last?
- Who holds the hearing(s)?
- Are hearings held by the entity that developed the draft plan? Some other entity?
- Where should the hearing(s) be held (e.g., accessible locations)?
- What time of day should hearings occur and what days of the week?
- What notice is required?
- How much notice is due (e.g., how much lead time)? Should the draft plan be published in full? If so, where?
- What happens when changes are recommended and the plan is altered after the hearing…is another hearing then required? If so, when would the cycle end?
- Which body is ultimately responsible for adopting the plan?
- The planning board? The legislative body? Why, what difference does it make?
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.
Previous posts in the Contemporary Issues in Teaching Land Use series