Recent Developments in Comprehensive Planning

• Library: At the Cutting Edge: Land Use Law from The Urban Lawyer (ABA) (2014 Ed.)

Edward J. Sullivan^* and Jennifer Bragar^**

I. Introduction

This annual report deals with the relationship of zoning and other land use regulations and actions and the comprehensive plan (sometimes referred to as the "general" or "master" plan). The tension between planning and land use regulation has existed since the promulgation of the two model acts drafted by an advisory committee to the Secretary of Commerce in the 1920s. The first in time, the Standard State Zoning Enabling Act (1926) was the more popular of the two, having been enacted in one form or another by three-quarters of the states and providing the basis for local governments to divide their territories into use districts.¹ The second model act was the Standard City Planning Enabling Act (1928)² which provided for a framework for future land uses and public works and was enacted by about half the states. Section three of the Standard State Zoning Enabling Act provided that zoning must be "in accordance with a comprehensive plan;"³ however, the term "comprehensive plan" was not used in the Standard City Planning Enabling Act, so courts were left with guessing at the relationship between the two acts. More than eighty years later, courts are still exploring the relationship between planning and land use regulations and actions.

This report chronicles those cases decided on these matters between October 1, 2011 and September 30, 2012 and, following this introduction, is divided into several parts. The next three parts deals with three schools of thought on this relationship—one in which the plan is unnecessary and legally irrelevant,⁴ another in which the plan is a factor in judicial review of land use regulations and actions,⁵ and a third in which the plan achieves quasi-constitutional status, although it may be changed as can any policy.⁶ Following this tripartite analysis, the authors review the cases for this same period which relate to amendment, and then interpretation of the comprehensive plan, if the plan has legal significance, and proceeds to conclusions.

II. Unitary View

Although the view that the comprehensive plan is found in the zoning ordinance and maps was once the majority view, very few states now adhere to that analysis. Connecticut has most of the cases in this category for the last year, but also noteworthy is a rural land use case from Ohio. The Connecticut cases are all at the sub-appellate level, and the Ohio case was decided by the Court of Appeals, and is where the discussion will start.

In White Oak Property Development, LLC v. Washington Township, the court upheld a summary judgment motion that the county court granted in favor of the Township.⁷ White Oak sought a zone change of a 60 acre parcel to construct 300 multi-family condominium units. Petitioner challenged whether a comprehensive zoning plan existed and whether the zoning resolution and map were "in accordance with a comprehensive plan" as required by state law. The court found that the Township's zoning resolution reflected four available current uses—agricultural, residential, commercial, and industrial; and allowed for change as additional needs develop.⁸ Further, the resolution and map, incorporated into the resolution by reference, provided a potential purchaser with the identity and location and boundaries by each district.⁹ Thus, the town zoning resolution and map were considered a valid comprehensive plan.

In a representative Connecticut case, Perugini v. Watertown Planning & Zoning Commission, plaintiff appealed a decision of the commission that amended the town's zoning regulations and zoning map to create a new medical and general business zone for an 18.24 acre parcel that was formerly zoned for industrial use.¹⁰ Plaintiff creatively claimed the amendments were inconsistent with the town's comprehensive plan because the purpose of the new zone was inconsistent with the purpose of the industrial zone from which the new zone was carved.¹¹ The court disagreed, finding that the planning commission had reasonably approved the rezoning based on the need for medical facilities and the proximity of the rezoned property to existing senior housing complexes.¹² Thus, where substantial evidence ties a rezone to the general purpose of a zoning ordinance and map, the courts will defer to local government discretion in zoning matters.

III. Planning Factor Cases

For many years now, the trend in cases relating to the significance of the comprehensive plan is that in which the plan is a factor or consideration in a judicial analysis. This past year has seen a similar trend.

In an Idaho case, Friends of Minidoka v. Jerome County, petitioners challenged respondent County's approval of a Concentrated Animal Feeding Operation ("CAFO"), inter alia, for violation of the county's comprehensive plan.¹³ However, the court noted the county's zoning ordinance stated it was made in accordance with a comprehensive plan,¹⁴ but the plan was not dispositive in any event.¹⁵

In an Illinois case, Robrock v. County of Piatt, neighbors challenged the county's grant of a special use to establish a restricted landing area ("RLA") for a personal gyrocopter.¹⁶ The appellate court found a trial court injunction overly broad, but upheld the invalidation of the grant.¹⁷ In doing so, the court considered two factors used in Illinois to determine the validity of a zoning ordinance, one of which was the care the County took when planning its land use.¹⁸ The plan had identified protection of the rural countryside as a whole, and the proximity of other airports negated the need for similar improvements in the County; thus, the court found the County approval not to be in harmony with the County's plan.¹⁹

A Kansas case, Baggett v. Board of Commissioners, involved a challenge to an annexation based on the local plan.²⁰ The court used a standard of whether the decision was unsupported by sufficient evidence or otherwise arbitrary, capricious or unreasonable²¹ and remanded, based on inconsistencies set out in the planning staff report, the plan itself, and petitioner's specific reliance on the plan.²²

In a Maine case, Forest Ecology Network v. Land Use Regulation Commission,²³ the fact that a state land use commission was required to have any zoning be consistent with a comprehensive plan did not require the agency to adopt zoning for the area when it considered a concept plan for land within Maine's unorganized areas.²⁴

A Maryland case, HNS Development, LLC v. People's Counsel for Baltimore County,²⁵ involved a local code provision (as opposed to a statute) requiring development to comply with the county's master plan²⁶ was a sufficient basis for rejecting further development of a plat.²⁷

Two unreported Minnesota Court of Appeals cases illustrate the use of the plan as a factor in that state. In Wilmes v. City of St. Paul, a landowner challenged denial of his request for removal of a tree in a city right of way.²⁸ The majority upheld the denial, but did not mention any city plan; however, the dissenting judge noted that the city's "Street Tree Master Plan" was termed a "comprehensive guide for selection, placement and proper maintenance of trees" and was thus not binding.²⁹ But in Vier v. City ofWoodbury, respondent city relied inter alia on its comprehensive plan as a justification for adoption of an ordinance against installation of an "outdoor wood boiler."³⁰

IV. The Planning Mandate View

Some states take the view that the plan is a quasi-constitutional document to which land use regulations and actions must adhere. Cases from six states illustrate this view.

The cases from California over the past year relate most often to consistency with the General Plan.³¹ For example in Center for Sierra

Nevada Conservation v. County of El Dorado³² respondent adopted an alternative means of dealing with the potential loss of oak woodlands from that contained in its General Plan, but only provided a negative declaration to support that decision, rather than an environmental impact report ("EIR"), which petitioners challenged as insufficient.³³ While the potential loss of these woodlands was contained in the General Plan, dealing with that loss through an alternative mechanism to that in the plan was not covered by the plan and would result in significant environmental effects which required an EIR, resulting in reversal of the county decision.³⁴

A Delaware case, Farmers for Fairness v. Kent County Levy Court, arose over respondent's adoption of a new county comprehensive plan which, Petitioners claimed, adversely affected the use and value of their property.³⁵ Petitioners claimed that Delaware statutory law prohibited development in conflict with the comprehensive plan and the impact of the plan adoption effected zone changes from a general maximum density of one dwelling per acre to one dwelling per four acres.³⁶ Respondent contended the case was not ripe until the County adopted new regulations and maps, while Petitioners claimed the effects were immediate upon adoption of the plan.³⁷ The statute at issue provided that the plan has the "force of law" and development must be in conformity with both the plan and the local development regulations.³⁸ That result meant that development proposals inconsistent with the newly adopted plan could not go forward.³⁹

Florida requires that a "development order," a term that includes most permits to develop land, be in conformity with a comprehensive plan.⁴⁰ In Graves v. City of Pompano Beach, a revised plat approval was challenged as allegedly inconsistent with the city's comprehensive plan.⁴¹ The court reversed dismissal of the challenge, finding a plat approval to be a reviewable development order which must be consistent with the local comprehensive plan.⁴²

Three unpublished New Jersey cases all deal with the role of the master plan in the grant or denial of variances and are of no special importance.⁴³ In an Oregon case, McCollum v. State, relief from more restrictive...