Monday, October 2, 2017

Jonathan Rosenbloom 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 Jonathan Rosenbloom

Because many law students will represent their clients before plan & zoning commissions and city councils, it is important for students to understand that the “in accordance” requirement—explored in Sections 3 and 4 of our textbook—can translate into a variety of practices on the ground.

For example, Iowa, like Idaho (as vividly described in Stephen’s post) and other states, requires local governments to exercise their zoning powers through decisions “made in accordance with a comprehensive plan and designed . . . to encourage efficient urban development patterns . . . [and] to promote health and the general welfare.” Iowa Code § 414.3.

In Iowa, this does not mean that local governments must have a written plan. Webb v. Giltner, 468 N.W.2d 838, 840 (Iowa App. 1991). Rather, “compliance with the comprehensive plan requirement merely means that zoning authorities have given ‘full consideration to the problem presented, including the needs of the public, changing conditions, and the similarity of other land in the same area.’” Iowa Coal Min. Co. v. Monroe County, 494 N.W.2d 664, 669 (Iowa 1993) (quoting Montgomery v. Bremer Cty. Bd. of Supervisors, 299 N.W.2d 687, 695 (1980)) (emphasis added); see also Residential and Agricultural Advisory Committee, LLC v. Dyersville City Council, 888 N.W.2d 24, 44 (2016) (concerning rezoning of the property from Field of Dreams).

When a zoning action is considered to be in accordance with the comprehensive plan, the Des Moines Plan & Zoning Commission (P&Z) summarily approves with the following language recommended by city staff:

Staff recommends that the Commission find that a rezoning to a [___] District be found in conformance with the Des Moines’ 2020 Community Character Plan [the city’s comprehensive plan until 2016].

See, e.g., City of Des Moines Plan & Zoning Commission, Staff Report and Recommendation, Agenda Item 1A-1C, Feb. 19, 2015. What is more interesting is the pro forma language used by P&Z for projects where the zoning action is not “in accordance” with the comprehensive plan. That language looks like this:

Part A) Staff recommends that the Commission find the proposed rezoning not in conformance with the existing Des Moines' 2020 Community Character Plan.

Part B) Staff recommends approval of the request to amend the Des Moines’ 2020 Community Character Plan to revise the existing future land use designation . . .

Part C) Staff recommends approval of the requested rezoning . . .

See, e.g., City of Des Moines Plan & Zoning Commission, Staff Report and Recommendation, Agenda Item 4A-4C, Mar. 5, 2015.

Before probing deeply into this, it’s interesting to start by asking the students: 1) what is P&Z doing and why, and 2) what do the students think about this as a practice?

We can begin to break it apart and explore it as this ad hoc amendment to the comprehensive plan raises many fascinating issues to discuss. In terms of what is happening, basically, if accepted P&Z finds the applicant’s zoning request to be inconsistent with the comprehensive plan. P&Z, then, quite simply amends the comprehensive plan to fit the proposed zoning. In its final step, it approves the requested rezoning.

Some of the issues for in-class discussion include: 1) how should P&Z show that it has given “full consideration to the problem presented” when re-planning in this way [this being the standard pursuant to Iowa Coal Min. Co. cited above]; 2) whether this type of ad hoc amendment of the comprehensive plan essentially re-orders the planning and zoning processes, where zoning now directs the planning, and what is the import of such a re-ordering; and 3) whether this practice limits the practical significance of the “in accordance” state statutory requirement.

Ironically, the Iowa State Supreme Court has held, “The ‘comprehensive plan’ requirement was imposed to prevent piecemeal and haphazard zoning.” Wolf v. City of Ely, 493 N.W.2d 846, 849 (1992). The plan is “intended to ensure [local governments] . . . act[] rationally rather than arbitrarily in exercising their delegated zoning authority.” Wolf, 493 N.W.2d at 849. I’ve yet to do this, but next semester I think I’ll ask my students whether they believe comprehensive plans in Iowa are fulfilling this goal.

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]

| Permalink