Local Land Development Regulation

This chapter contains model statutes that authorize local governments to adopt a variety of land development regulations. Topics covered include zoning, subdivision, planned unit development (PUD), uniform development standards, exactions, development impact fees, vesting, nonconforming uses, and development agreements, among others. A feature of the Chapter is model language to gauge consistency between a local comprehensive plan and land development regulations or specific development proposals.

The Chapter is intended to be used in conjunction with Chapter9, Special and Environmental Land Development Regulation and Land-Use Incentives, Chapter10, Administrative and Judicial Review of Land-Use Decisions, and Chapter 11, Enforcement of Land Development Regulations. Specific provisions related to the administration of landd evelopmentregulations, including the adoption of a unified development permit review system, appear in Chapter 10.

Chapter Outline

General Provisions

8-101 Definitions
8-102 Authority to Adopt Land Development Regulations; Purposes; Presumption of Validity
8-103 Adoption and Amendment of Land Development Regulations; Notice and Hearingx
8-104 Consistency of Land Development Regulations with Local Comprehensive Plan
8-105 Relationship of Land Development Regulations to OtherDevelopment Agreements Federal and State Laws, Regulations, Programs, and Plans; Maintenance of List by the [State Planning Agency]
8-106 Relationship of Land Development Regulations to Lands Owned by the Federal, State, and Other Governmental Units (Four Alternatives)

Zoning

8-201 Zoning Ordinance

Review of Plats and Plans

8-301 Subdivision Ordinance; Review and Approval of Subdivision by Local Government
8-302 Site Plan Review
8-303 Planned Unit Development; Traditional Neighborhood Development

Uniform Development Standards

8-401 Uniform Development Standards

Development Rights and Privileges

8-501 Vested Right to Develop (Two Alternatives)
8-502 Regulation of Nonconformities; Amortization (Two Alternatives)

Exactions, Impact Fees , and Sequencing of Development

8-601 Development Improvements and Exactions
8-602 Development Impact Fees
8-603 Concurrency; Provision of Adequate Public Facilities
8-604 Moratorium on Issuance of Development Permits for a Definite Term

8-701 Development Agreements

Cross-References for Sections in Chapter 8

Section No. Cross-Reference to Section No.

8-101 7-502, 8-401
8-102 2-102, 7-406, 7-501, 8-201, 8-301, 8-302, 8-303, 8-601, 8-602, 8-603, 8-701, 9-101, 9-201, 9-301, 9-401, 9-403, 9-501, 14-301
8-103 7-106, 7-109, 7-110, 8-102
8-104 7-201, 7-406, 8-102
8-105 8-102, 8-103
8-106 7-109, 7-110, 7-402.2, 7-402.4, 8-102

8-201 8-102, 8-103, 8-104, 8-303, 8-502, 9-101, 9-301, Ch. 10, Ch. 11

8-301 7-501, 8-102, 8-103, 8-104, 8-201, 8-501, 8-601, 8-602, 10-204, 10-207, Ch. 11
8-302 8-102, 8-103, 8-104, 8-201, 8-301, 8-303, 8-501, 8-601, 8-602, 10-201, 10-502
8-303 8-102, 8-103, 8-104, 8-201, 8-301, 8-601, 8-602, 10-502

8-401 4-103, 8-601, 8-602, 10-601 et seq.

8-501 8-201, 8-301, 8-302, 8-303, 8-701, 10-201, 10-203
8-502 8-201, 8-301, 8-302, 8-303

8-601 8-102, 8-103, 8-104, 8-301, 8-302, 8-303, 8-401, 8-501, 8-602
8-602 7-202, 7-502, 7-503, 8-102, 8-103, 8-104, 8-301, 8-302, 8-303, 8-401, 8-601, Ch. 10
8-603 7-202, 7-302, 7-303, 7-502, 7-503, 8-102, 8-103, 8-104, 10-201 et seq.
8-604 4-401, 7-201 et seq., 8-102, 8-103, 8-104, 8-603, Ch. 10

8-701 7-202, 8-102, 8-103, 8-104, Ch. 10, Ch. 11

The Evolution of Model Zoning and Subdivision Statutes

This commentary[1] reviews the various model statutes that have influenced (or have attempted to influence) the enactment of state legislation for zoning and subdivision controls as well as the major studies that have critiqued land development controls in the U.S. It is intended to provide an overview, chiefly focusing on zoning and subdivision, which are the two principal land-use controls used in the United States. It does not include model statutes on planning, which are covered elsewhere in the Legislative Guidebook. Later in this Chapter as well as in Chapters 9, 10, and 11, the Guidebook assesses specific techniques and issues and analyzes approaches from different states.

A zoning ordinance divides the jurisdiction of a local government into districts or zones and regulates land-use activity in each district, the intensity or density of such uses, the bulk of buildings on the land, parking, and other characteristics or aspects of land use. The ordinance consists of a text and a zoning map, both of which may be periodically amended by the local legislative body. By contrast, subdivision regulations govern the division of land into two or more lots, parcels, or sites for building, and the location, design, and installation of supporting infrastructure. Sometimes the subdivision regulations will also incorporate detailed engineering and design criteria for required public infrastructure. Zoning and subdivision control are interrelated; the layout of a subdivision is shaped by standards in the subdivision regulations themselves, but zoning requirements for lot area, width, and building setbacks also greatly influence the ultimate site design.

Early Efforts

Interest in planning and zoning enabling legislation in the U.S. began in the 1910s. The proceedings of the Fifth National Conference on City Planning in 1913 in Chicago contained a report of the conference's Committee on Legislation[2]. The committee report, which was adopted by the conference and published as part of its proceedings, contained several model acts for land development control (as well as planning):

(1) establishing a city planning department and giving it extraterritorial (three-mile) planning jurisdiction and the authority to regulate plans of lots;

(2) empowering cities to create from one to four districts within their limits and to regulate the heights of buildings thereafter constructed in each district;

(3) authorizing the platting of civic centers;

(4) authorizing the platting of reservations for public use without specifying the particular public use; and

(5) authorizing the establishment of building lines on any street or highway.

In 1916, New York City was the first municipality in the nation to adopt zoning. During this early period many states adopted enabling acts, freely borrowing from other another. For example, by 1919, at least 10 states had authorized all or certain classes of cities to adopt zoning. That same year, Congress instructed the commissioners of the District of Columbia to prepare comprehensive zoning regulations. The Texas legislature approved an amendment to the Dallas city charter in 1920 to permit overall zoning. The next year it sanctioned zoning for all cities in the state. In 1921 alone, Connecticut, Indiana, Kansas, Michigan, Missouri, Nebraska, Rhode Island, South Carolina, and Tennessee all granted cities the authority to regulate the use of land and building bulk[3].

The Standard Acts

The Standard State Zoning Enabling Act (SZEA) and the Standard City Planning Enabling Act (SCPEA), drafted by an advisory committee of the U.S. Department of Commerce in the 1920s, laid the basic foundation for land development controls in the U.S.[4]. For many states, the Standard Acts still supply the institutional structure, although some procedural and substantive components may have changed.

There were several motivations for drafting the Standard Acts. One was the interest of Secretary of Commerce (and later President) Herbert Hoover. Witnessing the tremendous building boom in many American cities in the 1920s, Hoover was concerned that the value of private investment, especially in residences, be protected from incursions of incompatible uses, and that cities be planned so there was an adequate public infrastructure, as well as amenities, to support the burgeoning population[5]. Another motivation, for the SZEA in particular, was to ensure that there was a clear grant of the state's police power authority to local governments. When the question of the constitutionality of zoning came before state and federal courts, the matter of delegation of power to undertake zoning would have been resolved through the enactment of the enabling statute[6].

The SZEA, which was drafted first, had nine sections. It included a grant of power, a provision that the legislative body could divide a municipality's territory into districts, a statement of purpose for the zoning regulations, and procedures for establishing and amending the zoning regulations. The legislative body was required to establish a zoning commission to advise it as to the initial development of the zoning regulations. The zoning commission was a temporary body that was intended to go out of existence after the regulations were adopted — in effect a task force with a limited mission. It was not necessary to continue a zoning commission beyond the adoption of the original ordinance under the SZEA. Where it existed, the planning commission could also serve as the zoning commission. The SZEA's longest section described the powers of the board of adjustment, a quasi-judicial body with the ability to authorize hardship variances and special exceptions (also known as conditional uses). The SZEA concluded with authorization for the adoption of enforcement mechanisms and language resolving conflict with other laws.

The SCPEA was intended to complement its predecessor. In the area of land development control, it included:

(1) Provisions for adoption by the governing body of a master street plan and subsequent control of a master street plan and subsequent control of private building in the bed of mapped but unopened streets, and of public building in unofficial or unapproved streets; and

(2) Control of private subdivision of land into building parcels and accompanying streets and other open spaces[7].

The U.S. Department of Commerce tracked the SZEA's progress. By 1930, the department could report that 35 states had adopted legislation based on it. The SZEA was adopted in some form by all 50 states and is still in effect, in modified form, in 47 states. The SCPEA was not as popular, perhaps because there was less pressure to authorize planning institutions and more to allow zoning.

One criticism of the two acts was the confusion between a land-use element and a "zoning plan." The SZEA required that zoning regulations be "in accordance with a comprehensive plan." It did not define[8] what a "comprehensive plan" was, or the exact nature of the analysis that a municipality would need to undertake to determine what the relationship was to be between the zoning regulations and the plan, especially when the zoning map was being amended. Nonetheless, a footnote to the SZEA attempted to clarify the phrase with the explanation: "This will prevent haphazard or piecemeal zoning. No zoning should be done without such a comprehensive study[9]." Both acts used the term "zoning plan" to describe a map of zoning districts developed as part of the proposed regulatory scheme. The SCPEA, in Section 6, included a "zoning plan" as element of the "master plan." It did not describe or list a land-use element — the guiding policy framework for land-use regulations — as a part of a master plan. The SZEA language, in the words of one critic, "thus encouraged overall zoning unsupported by a thoughtfully prepared general plan for the future development of the city."[10] Perhaps the zoning plan requirement in the SCPEA reflected the decision to publish the zoning act before the planning act. Still another view is that the practice in the 1920s was to prepare a detailed zoning plan as part of a comprehensive or master plan, as opposed to a more conceptual land-use element, but the studies that underpinned the zoning plan were similar (although more rudimentary than) those that would support the land-use element[11].

Model Laws for Planning Cities

In 1935 Harvard University Press published Model Laws for Planning Cities, Counties and States, Including Zoning, Subdivision Regulation, and Protection of Official Map, authored by attorneys Edward M. Bassett, Frank B. Williams, and Alfred Bettman, and planner Robert Witten[12]. Bassett and Bettman also served on the committee that drafted the Standard Acts.

Bassett and Williams drafted a series of statutory models that tended to be narrow in focus and procedural in nature, avoiding legislation with substantive content that dictated how planning was to be accomplished. For example, they believed that the legislation should not require the creation of a planning organ in local government. Thus, under their legislation, the legislative body was authorized but not required to create a planning commission. Under their model, there was also a zoning commission, which formulated the original zone plan and regulations, and a separate planning commission. Their model allowed the planning commission or board to serve as the zoning commission, although it would have to keep separate sets of minutes in order to distinguish between the planning and land-use control functions.

The Bassett and Williams model zoning enabling act included broad standards to guide the board of appeals (the term was used in preference to board of adjustment, which appears in the SZEA) in authorizing variances and exceptions and procedures for appeal to the courts. The language is virtually identical to the Standard State Zoning Enabling Act. The pair recognized the problems of boards overstepping their authority and, through use variances, effectively rezoning property, a function of the legislative body. Ability to appeal to the courts, they contended, "would tend to keep the actions of these boards within reasonable limits."[13]

Bettman conceded the seriousness of the problem often caused by the boards. Many boards, he wrote, took advantage of the indefiniteness of the "hardship clause" in the language of the SZEA for granting variances and exceptions. The cumulative effect of these changes "represents a far more serious impairment of the integrity of the zoning plan than results from court decisions or councilmanic spot zoning," he wrote.[14] Bettman's model did not establish standards themselves. Instead it authorized the legislative body to define and presumably limit the scope of the appeals board's authority, based on "the product of actual experience."[15] Thus, the legislative body could rein in the board if it had been abusing its powers.[16] Bettman did not provide a special procedure for court review of zoning decisions, contending that conventional court procedures were adequate for this purpose.

USDA Rural Zoning Enabling Legislation

In 1936, the U.S. Department of Agriculture's Resettlement Administration published an illustrative rural zoning enabling act accompanied by an extensive, very sophisticated commentary.[17] The act was a series of changes to the basic structure of the SZEA in order to adapt it to serve rural zoning interests in unincorporated areas. The publication also contained examples of alternative language that would give the state some control in rural zoning. The inclusion of these provisions seems prescient for their time, since they anticipate a state interest in controlling land use and supervising local actions. For example, the USDA model proposed: (1) giving a state planning board or some similar agency authority to approve or appoint the membership of the county zoning commission; and (2) limiting the ability of the commission to adopt zoning regulations only after they had been approved by the board. It also proposed state aid and direct technical assistance to the county zoning commission in formulating zoning regulations.[18]

The New Mexico Report

In 1962, Harvard University Planning Professor William Doebele completed an extensive enabling statute study for the State of New Mexico Planning Office that was later summarized in a law journal article.[19] While most of the recommendations were specific to New Mexico, some have broader implications, especially those regarding development control. In particular, Doebele proposed an imaginative presumption-shifting approach to relate the general (or comprehensive) plan to implementing ordinances, such as zoning or subdivision. In any litigation or dispute, the adoption of the plan could be introduced as evidence supporting the reasonableness of the ordinance. When this occurred, the party seeking to invalidate the ordinance assumed a "correspondingly greater burden of proof of unreasonableness."[20]

ASPO Connecticut Report

In 1966, the American Society of Planning Officials, a predecessor of APA, assisted by the Chicago law firm of Ross, Hardies, O'Keefe, Babcock, McDugald, and Parsons, produced New Directions in Connecticut Planning Legislation.[21] The first major postwar study on planning law reform, the study, prepared for the Connecticut Development Commission, recommended major changes in the Connecticut statutes. Many of the study's proposals were aimed at revamping the state's system of development control and have a great deal of transferability. They stressed procedural uniformity and fairness, and limitations on local powers and practices that tended to lead to ineffective, unnecessary, or inappropriate development regulation. The study recommended, among other things:

• A single planning and development agency. This agency would replace separate commissions for "planning" and "zoning," a legacy of the SZEA. A single administrative agency, either a planning and development commission or an executive department, would be established by the governing body of the municipality.

• A municipality that adopts land-use regulations should be required to establish the office of development administrator to enforce the regulations. Enforcement of the regulations should be through the issuance of certificates of compliance, and the issuance or denial of such certificates could be appealed to a local review board.

• The statutes should prohibit the inclusion of minimum house size requirements in local zoning regulations.

• The public hearing requirements of the existing statutes should be broadened so that no significant decision affecting land-use controls may be made without a public hearing. The hearing should be conducted by the agency that is the deciding authority, and all testimony taken at the hearing should be under oath, with the opportunity to cross-examine witnesses given to the applicant. A complete and accurate record of a hearing should be made either by stenographic transcription or mechanical recording device. The hearing agency should be given subpoena powers. The manner of giving notice for hearings on variance matters must be standardized and uniform time periods employed.

• The statutes should require explicit findings of fact and explicit reasons for each decision rendered by a local hearing agency or legislative body.

• The statutes should define the proper factors to be considered by a local agency in deciding applications for variances or special use permits. Use variances — variances that allow uses to be established that are not permitted in the zoning district —should be expressly prohibited.

The Use of Land

The Use of Land, a 1973 study sponsored by the Rockefeller Brothers Fund, described a "new mood in America . . . that questions traditional assumptions about the desirability of urban development . . . [and that was] part of a rising emphasis on human values, on the preservation of natural and cultural characteristics that make for a humanly satisfying living environment."[22] The study's focus was national and did not touch on specific states or local practices. However, the report favored more discretionary reviews in approving local development proposals, among them, environmental impact statements.[23] It also cited the need for state and local laws that would disqualify state and local officials for voting on or otherwise participating in any regulatory decision whose outcome would confer financial benefit to themselves, their families, or their business or professional association. It advocated citizen suits to appeal local regulatory decisions and to enforce ordinance requirements (note: these are typically permitted).[24]

According to the study, to reduce "exclusionary incentives" by local governments to minimize costs or keep out the poor, states should enact measures to reduce the impact of new development on local tax rates, although it did not present specifics.[25] The report called for state legislation to deprive local governments of the power to establish minimum floor area requirements for dwellings in excess of a statewide minimum established by statute.[26] In addition, it encouraged incentives, such as density bonuses, to stimulate large-scale developments, which it championed.[27] The report contained an extensive discussion of open space preservation techniques, such as mandatory parkland dedication and fees-in-lieu, cluster zoning, acquisition of easements along beaches, and revision of federal tax laws to encourage land donations.[28]

ALI Model Land Development Code

The American Law Institute's A Model Land Development Code (ALI Code), published in 1976 after 11 years of work, represented a critical rethinking of American planning and zoning law.[29] The ALI Code was not intended as a unified document to be adopted in its entirety by states to replace the Standard Acts, but instead as a source of various statutory models to address specific development concerns. Each state could select the provisions it needed for the 12 articles in the ALI Code. Other Chapters in the Legislative Guidebook discuss and update various proposals contained in the ALI Code with respect to state, regional, and local planning as well as state-level land use control (e.g., developments of regional impact and areas of critical state concern).

The ALI Code allocates responsibility for planning and land-use decision making between the state and local governments. The local government retains control over its planning and development regulation, subject to state supervision and policy guidance.

The core proposals affecting zoning and subdivision control appear in Article 2.[30] The Code combines both into a "development ordinance." The ordinance is required to list for "general development" all of the "permitted uses in a given area." Any developer seeking to build such a use may apply for a "general development permit."

In addition, the Land Development Agency — the local entity that oversees all planning and development control — can issue "special development permits" for certain types of development. These permits may be issued only after notice and hearing of a type similar to that required for variances and special exceptions under the SZEA. Every Land Development Agency may allow variances in matters other than use, modification of nonconforming uses, and subdivision of land. Other types of special development permits can be granted by the Land Development Agency only if specifically authorized by the local development ordinance. These include permits allowing "economic use" of property, permits that involve minor modifications in zoning district boundary lines, and permits to allow development on property designated a landmark site or located in special preservation district.

Comprehensive planning was not mandatory under the ALI Code — a matter of sharp debate among its critics — but local governments that adopted what the Code termed a "Local Land Development Plan" may issue special permits for planned unit development and for development in "specially planned areas," and may devise other categories of special development permits that incorporate material in the plan by reference.[31]

In administering the development ordinance, the Land Development Agency must follow procedures set forth in the Code. The local legislative body can amend the development ordinance in the same manner as it may amend any other local ordinance, except that, if the amendment is the equivalent to the rezoning of a particular piece of property, the amendment is valid only if it is preceded by an administrative hearing by the Land Development Agency followed by findings that the action accomplished by the amendment meets a set of standards set forth in the Code. This subtle modification in the Code is intended to ensure that parcel-specific zone changes are treated as administrative (or policy-effectuating) matters, rather than legislative (or policy-making) actions.

Finally, under the Code, all governmental agencies are required to comply with local development regulations. If a state (or other governmental agency) disagrees with local regulations, its remedy is an appeal to a State Land Adjudicatory Board, a specialized land-use court. Noted the ALI Code: "In most states this would significantly enlarge the power of local governments to control development by state or regional agencies."[32]

ACIR Model State Statutes

The U.S. Advisory Commission on Intergovernmental Relations (ACIR), a now-defunct (since 1997) body created by Congress to study relationships among local, state, and national levels of government, published a series of model state statutes in 1975. The land-use legislation included local planning, zoning, and subdivision legislation drawn from enabling statutes for Florida counties. It also addressed planned unit development and mandatory dedication of park and school sites and fees-in-lieu.[33]

Council of State Governments Model Legislation

The Council of State Governments, a joint research and information service supported by all the states, publishes annually a compendium of suggested model legislation. These models are typically based on exemplary or prototypical work in one or more states and appear in a standardized format. The models that relate to land development control are listed in the footnote below.[34]

Other Models

As part of a 1988 symposium issue on impact fees, the Journal of the American Planning Association published two model impact fee enabling acts, later reprinted in a collection of articles from that issue.[35] The National Association of Home Builders (NAHB) Research Center in 1993 published Proposed Model Land Development Standards and Accompanying Model State Enabling Legislation. This report, funded by the U.S. Department of Housing and Urban Development, contained model minimum design and construction standards and two alternative statutes that would provide a mechanism to establish such standards on a statewide basis, with the standards either being voluntary or mandatory for all local governments.[36] These models are reviewed in Section 8-401, Uniform Development Standards.

ABA Housing for All Under Law

The American Bar Association (ABA) Advisory Commission on Housing and Urban Growth published a far-reaching report in 1978, Housing for All Under Law: New Directions for Housing, Land Use and Planning Law.[37] Funded by a grant from the U.S. Department of Housing and Urban Development, the study proposed a series of measures to increase housing opportunity and choice and to promote a more rational growth process.

Among its recommendations in the area of land development controls, the study endorsed the then-new trend of treating zoning amendments that involve only individual parcels of property and have limited impact on the immediate area, as opposed to those affecting the community-at-large (such as adoption of a new zoning map for a city), as "adjudicatory" acts instead of legislative decisions. Such a characterization would subject zone changes to a higher level of judicial scrutiny. "If zone changes are treated as adjudicatory," the report concluded, "they will be subject to the essentials of procedural due process that are traditionally expected of administrative bodies--adequate notice, an opportunity to present and rebut evidence, a statement of findings, and will not be subject to voter referendum."[38]

To correct unevenness in the administration of land-use controls, the report discussed limitations on ex parte contacts between the parties to an action and the public officials involved, formal participation by neighborhood groups in land-use decisions that substantially affect their interests, and consolidation of administrative reviews and development permits. The report strongly backed the use of hearing examiners in lieu of zoning boards to ensure a more efficient and professional land-use appeals process at the local level.[39]

Federal Studies

Beginning with the Douglas Commission in 1968, numerous federal commission and federally sponsored study groups have recommended, in varying degrees, overhaul of state planning and zoning legislation. The major studies are discussed below, with emphasis on recommendations for land development controls.

1. National Commission on Urban Problems (Douglas Commission). In 1968, the National Commission on Urban Problems (also known as the Douglas Commission after its chair, Senator Paul Douglas) issued its report, Building the American City.[40] A number of the report's recommendations addressed state enabling legislation for land-use controls.

The report proposed abolishing local planning commissions as constituted in many communities. Under the commission's proposal, planning commissions would retain their authority as citizen advisory commissions and advocates for comprehensive planning. However, administration of land-use regulations (such as review of subdivision plats and site plans, approving or making recommendations on special exceptions, variances, and rezoning), and plan-making itself, would be the job of paid professionals under the general direction of elected officials or a chief executive office, like a mayor or city manager. The report called for state recognition of local development controls by the enactment of legislation that grants to large units of government the same regulatory power over the actions of state and other public agencies (this was similar to a proposal in the ALI Code).

State governments, said the report, should enable local governments to establish holding zones in order to postpone urban development in areas that are inappropriate for development within the next three to five years.[41] In such areas, local governments should be authorized to limit development to houses on very large lots (10 to 20 acres), agriculture, and open space uses. The state legislation should require that localities review such holding zones at least once every five years.

The report urged state legislation authorizing planned unit developments in both undeveloped and built-up areas. In addition, it proposed state statutes that enabled local governments to classify undeveloped land in planned development districts. In such districts, development would be allowed to occur at a specified minimum scale, one that was sufficiently large to allow only development that created its own environment.

The commission proposed that states adopt statutes that established clear policies as to the allocation of various costs between developers and local governments--a predecessor of development impact fees. This legislation should specify the kinds of improvements and facilities for which developers may be required to bear the costs and the manner in which such obligations may be satisfied. At minimum, the legislation was that developers provide for local streets and utilities and dedicate land (or make payments in lieu of dedication), parks, and schools, provided that "such facilities will directly benefit the development and be readily accessible to it."[42] Under this legislation, local governments would not be permitted to deviate from state policies.

The commission report also advocated legislation containing stricter procedural and substantive requirements for variances, rezonings, and nonconforming uses. For example, the report favored giving local governments the power to impose substantive limitations on the power of boards of appeal to grant variances and to eliminate deleterious nonconforming uses that adversely affect the environment. Also proposed was authorization for the establishment of formal rezoning policies on individual zoning map amendments.

2. President's Commission on Housing. In 1982, the President's Commission on Housing, appointed by President Ronald Reagan, issued a lengthy report on the provision, financing, and regulation of housing. In particular, the report was critical of overregulation by state and local governments through zoning. A number of recommendations related to enabling legislation. For example, the report proposed:

• Leaving the density of development to the conditions of the market except where a lesser density is necessary to achieve a "vital and pressing governmental interest," a new standard by which the constitutionality of development controls would be gauged.
• Requiring states and local government to remove from their zoning laws all forms of discrimination against manufactured housing, providing the housing conforms to nationally recognized model codes.
• Eliminating minimum or maximum limits on the size of individual dwelling units.
• Ensuring that builders and developers should be obligated only for such fees, dedications, easements and servitudes, parking requirements, or other exactions as specifically attributable to the development.
• Streamlining local permit processing by eliminating or consolidating multiple public hearings, establishing a central permit authority and joint review committees whenever several departments are involved in a project approval, and employing a hearing officer to conduct quasi-judicial hearings on applications or parcel rezonings, special use permits, variances and other such devices.

The report urged states and local governments to implement its recommendations, but it did not contain specific enabling language to do so.

3. Advisory Commission on Regulatory Barriers to Affordable Housing. The 1991 Report of the Advisory Commission on Regulatory Barriers to Affordable Housing, which was appointed by HUD Secretary Jack Kemp, contained 31 recommendations addressing government regulations that drive up housing costs.[44] A number of them were directed at states, some echoing recommendations of previous federal commissions. The report proposed, for example, that states institute "barrier removal plans," a comprehensive assessment of state and local regulations and administrative procedures as well as state constitutional authority and enabling legislation. From this analysis, states would propose a program of state enabling reform and direct state action, as well as provide for model codes, standards, and technical assistance to local governments. In addition, states needed to review and reform their zoning and land planning systems to remove all institutional barriers to affordability.[45]

Like the Douglas Commission and the President's Commission on Housing, the report pointed to the need to consolidate and streamline multiple regulatory responsibilities, favoring state legislation to centralize authority in a single agency to shorten and improve state and local approval processes. States should also enact legislation that establishes time limits on building code, zoning, and other approvals and reviews. Statewide impact fee legislation should be enacted that restricts the use of impact fees "to fund only facilities that directly serve or are directly connected to the house or development on which these fees are levied."[46]

States, said the report, should either enact a statewide subdivision ordinance and mandatory development standards or, alternatively, formulate a model land development code for use by localities. In addition, states should amend enabling acts that authorize manufactured housing under appropriate conditions and standards, as a permitted dwelling unit, and bar local governments from prohibiting them. Local governments should be directed to permit accessory apartments as of right, not as a conditional use, in any single-family district, subject to appropriate design, density, and other occupancy standards adopted by the state. Finally, the state should require localities to include a range of residential-use categories that permit, as of right, duplex, two-family, and triplex housing and adequate land within their jurisdictions for such use.

Other Critiques of Zoning Enabling Legislation

A 1991 article in the Urban Lawyer by George Liebman, a Maryland attorney, proposed a "developer's bill of rights" in connection with a revised zoning enabling act.[47] Liebman's proposals for revision of enabling statutes focused on increasing the supply and reducing the cost of housing in developed areas and those areas proposed for development.

Liebman's proposals, in large measure, tracked the recommendations of the various study commissions and models describe above. For example, in order to eliminate delays and jurisdictional conflicts, he favored abolishing planning commissions, vesting zoning, subdivision, and building and housing code enforcement in one agency, and establishing a uniform structure of appeal to a board of zoning appeals.[48] Similarly, he called for duplexes and accessory apartments to be permitted uses as of right in all new residential construction.[49] Liebman declared that municipalities "should be required to scrap the extravagant street width requirements imposed in the gas-guzzler era, possibly by imposition of a 26 foot maximum for collector and subcollector roads and an 18 foot maximum for dead end and cul-de-sac streets."[50]

Other recommendations would have eliminated the statutory authorization of minimum lot sizes, setback, and yard requirements and replaced them with authorization for density and floor area ratio limitations, and light and air standards.[51] Another proposal would guarantee "the right of developers to reduce lot sizes and dimensional requirements, so long as density limitations are met and open space dedicated."[52] In areas where development is sought to be concentrated, such as cities, municipalities of a certain size, or redevelopment areas, development permits should be deemed issued, if not denied or conditionally granted within 180 days of application.[53] Municipalities should be denied the right to distinguish between development of similar physical characteristics on the basis of tenure or form of ownership (i.e., condominium, owner-occupied, rental).[54] Liebman also wanted municipalities to be required to permit in residential zones home offices and telecommuting not involving show windows, exterior display advertising, or frequent personal visits of persons not employed on the premises.[55]

Zoning ordinances, Liebman contended, should be precluded from distinguishing between permitted structures on the basis of the number of housing units contained within them, so long as density, buffer, and architectural conformity requirements are satisfied. "The enabling act," wrote Liebman, "should make clear . . . that zoning ordinances are regulations of physical development and its physical consequences (e.g., traffic, damage to landscape, overburdening of public services, and prevention of nuisances) not vehicles for discriminating among housing types having similar environmental effects."[56] Concluded Liebman: "The fundamental emphasis in these proposals is certainty, equality among subdivisions, and respect for market forces. The mechanism best attuned to this approach is amendment of state enabling statutes, since this alone permits landwasting [sic] and burdensome local regulations to be immediately swept away."[57]

According to the Growing Smart Directorate, effective development
• Balance community vision with rights of property owners.

• Support community in the broadest sense.

• Account for long-term intended and, where possible, unintended impacts.

• Engender fairness and equity for all people in the community, not just those served by any given development.

• Incorporate smart growth principles, including efficient use of land, and mixing uses, in creating transportation and housing choices, and promoting good urban design.

• Be based on adequate enabling legislation.

• Aspire to reach a middle ground with standards that are both clear and predictable but that also allow flexibility and creativity.

• Encourage information sharing on the parts of administrators, lay board members, and applicants with regard to all standards, the characteristics of development sites, and the potential impacts of development.

• Include review processes that have a beginning, middle, and an end.

• Provide for nonjudicial mediation and review of decisions.

• Include incentives where possible and appropriate.

General Provisions

8-101 Definitions

As used in this Act, the following words and terms shall have the meanings specified herein:

"Adequate Public Facility" means a public facility or system of facilities that has sufficient available capacity to serve development or land use at a specified level of service;

"Adjusted Cost" means the cost of designing and constructing each new fee-eligible public facility or capital improvement to an existing fee-eligible public facility, less the amount of funding for such design and construction that has been, or will with reasonable certainty be, obtained from sources other than impact fees.

"Base Flood" means the flood having a one percent chance of being equaled or exceeded in any given year.

"Base Flood Elevation" means the elevation for which there is a one percent chance in a given year that flood levels will equal or exceed it.

"Concurrent" or "Concurrency" means that adequate public facilities are in place when the impacts of development occur, or that a governmental agency and/or developer has/have made a financial commitment at the time of approval of the development permit so that the facilities are completed within [2] years of the impact of the development;

"Construction Drawings" mean the maps or drawings and engineering specifications accompanying a final plat and showing the specific location and design of public and nonpublic improvements to be completed as part of a development.

"Dedication" means the transfer of title to, and responsibility for, public improvements to the local government from the owner of a development subject to an improvements and exactions ordinance.

"Development Agreement" means an agreement between a local government, alone or with other governmental units with jurisdiction, and the owners of property within the local government's jurisdiction regarding the development and use of said property.

"Development Impact Fee" or "Impact Fee" means any fee or charge assessed by the local government upon or against new development or the owners of new development intended or designed to recover expenditures of the local government that are to any degree necessitated by the new development. It does not include real property taxes under [cite to property tax statute] whether as a general or special assessment, utility hookup or access fees, or fees assessed on development permit applications that are approximately equal to the cost to the local government of the development permit review process.

"Development Standards" mean standards and technical specifications for improvements to land required by an improvements and exactions ordinance for subdivisions, developments subject to site plan review, and planned-unit developments. Development standards include specifications for the placement, dimension, composition, and capacity of:

(a) streets and roadways;

(b) sidewalks, pedestrian ways, and bicycle paths;

(c) signage for traffic control and other governmental purposes, including street name signs, and other traffic control devices on streets, roadways, pedestrian ways, and bicycle paths;

(d) lighting of streets, pedestrian ways, and bicycle paths;

(e) water mains and connections thereto, including connections for the suppression of fires;

(f) sanitary sewers and storm-drainage sewer mains and connections thereto;

(g) utility lines and poles, conduits, and connections thereto;

(h) off-street parking and access thereto;

(i) landscaping and contouring of land, and other provisions for drainage, sedimentation, and erosion control;

(j) open space, parks, and playgrounds; and

[(k) public elementary and secondary school sites.]

"Fee-Eligible Public Facilities" mean off-site public facilities that are one or more of the following systems or a portion thereof:

(a) water supply, treatment, and distribution, both potable and for suppression of fires;

(b) wastewater treatment and sanitary sewerage;

(c) stormwater drainage;

(d) solid waste;

(e) roads and public transportation; and

(f) parks, open space, and recreation.

"Financial Commitment" means that sources of public or private funds or combinations thereof have been identified which will be sufficient to finance public facilities necessary to serve development and that there is a reasonable written assurance by the persons or entities with control over the funds that such funds will be timely put to that end. A "Financial Commitment" shall include, but shall not be limited to, a development agreement and an improvement guarantee;

"Floodplain" means any land area susceptible to being inundated by water from any source.

"Final Plat" means the map of a subdivision to be recorded after approval by the local government.

"Improvement" means any one or more of the following which is required by an improvements and exactions ordinance to be constructed on the premises of a subdivision, development subject to site plan review, or planned-unit development:

(a) streets and roadways;

(b) sidewalks, pedestrian ways, and bicycle paths;

(c) signage for traffic control and other governmental purposes, including street name signs, and other traffic control devices on streets, roadways, pedestrian ways, and bicycle paths;

(d) lighting of streets, pedestrian ways, and bicycle paths;

(e) water mains and connections thereto, including connections for the suppression of fires;

(f) sanitary sewers and storm-drainage sewer mains and connections thereto;

(g) utility lines and poles, conduits, and connections thereto;

(h) off-street parking and access thereto;

(i) landscaping and contouring of land, and other provisions for drainage, sedimentation, and erosion control;

(j) open space, parks, and playgrounds; and

[(k) public elementary and secondary school sites.]

"Improvement Guarantee" means a security instrument, including but not limited to a bond, accepted by a local government to ensure that all public and nonpublic improvements required by an improvements and exactions ordinance or otherwise required by the local government as a condition of approval of a development permit will be completed in compliance with the approved plans and specifications of the development.

"Land Use" means the conduct of any activity on land, including, but not limited to, the continuation of any activity the commencement of which constitutes development.

"Level of Service" means an indicator of the extent or degree of service provided by, or proposed to be provided by, a public facility or system of public facilities based on and related to the operational characteristics of the facility or system;

"Local Capital Budget" means the annual budget for capital improvements adopted by ordinance that is also the first year of the local capital improvement program.

"Local Capital Improvement Program" means the document prepared pursuant to Section [7-502].

"Maintenance Guarantee" means any security instrument that may be required by a local government to ensure that necessary public and nonpublic improvements installed in connection with a development will function as required for a specific period of time.

"Manufactured Home" means a building unit or assembly of closed construction that is fabricated in an off-site facility and constructed in conformance with the federal construction and safety standards established by the secretary of housing and urban development pursuant to the "Manufactured Housing Construction and Safety Standards Act of 1974," as amended, 42 U.S.C. 5401 et seq., and that has a permanent label or tag affixed to it, as specified in 42 U.S.C. 5415, certifying compliance with all applicable federal construction and safety standards.

"Minor Subdivision" means any subdivision containing not more than [3 to 5] lots fronting on an existing street, not involving any new street or road or the creation or extension of any public improvements.

"Nonconforming Land Use" means a land use, lot, or parcel that was lawfully established or commenced prior to the adoption or amendment of a local government's land development regulations, and was in compliance with any land development regulations then in effect, but which does not presently comply with the land development regulations.

"Nonconforming Lot or Parcel" means a lot or parcel that was lawfully established or commenced prior to the adoption or amendment of a local government's land development regulations, and was in compliance with any land development regulations then in effect, but which does not presently comply with the land development regulations.

"Nonconforming Sign" means a sign that was lawfully constructed or installed prior to the adoption or amendment of a local government's land development regulations, and was in compliance with any land development regulations then in effect, but which does not presently comply with the land development regulations.

"Nonconforming Structure" means a building or structure that was lawfully constructed prior to the adoption or amendment of a local government's land development regulations, and was in compliance with any land development regulations then in effect, but which does not presently comply with the land development regulations.

"Nonconformity" means a nonconforming land use, nonconforming lot or parcel, nonconforming structure, and/or nonconforming sign.

"Nonpublic Improvement" means any improvement for which the owner of the property, a homeowners' association, or some other non-governmental entity is presently responsible and which the local government will not be assuming the responsibility for maintenance or operation.

"Off-Site" means not located on property that is the subject of new development.

"Overlay District" means a district that is superimposed over one or more zoning districts or parts of districts and that imposes specified requirements that are in addition to those otherwise applicable for the underlying zone.[58]

• An overlay district is a type of district that lies on top of another, like a bedspread over a blanket. The blanket is the underlying zoning district, such as a single-family detached with 10,000-square-foot lots. With an overlay zone, the provisions of underlying zones that are not affected by the provisions of the overlay zone remain the same. Instead, like the bedspread over the blanket, the requirements of the overlay district are placed over portions of the underlying zone or zones. The boundaries of the overlay also do not have to correspond perfectly with the underlying zone; the overlay district may cover only part of a regular zone or may cover part of several underlying zones.

"Performance Standards" mean criteria to control and limit the impact of land uses and their operation upon the surrounding neighborhood and the community as a whole.

• Therefore, instead of fixed uses, zoning with performance standards would permit those uses in a particular district as do not exceed the district's specified limits for traffic, noise, odors, visual impact, etcetera.

"Permanent Foundation" means permanent masonry, concrete, or other locally-approved footing or foundation to which a building may be affixed.

"Permanently Sited Manufactured Home" means a manufactured home that meets all of the following criteria:

(a) The structure is affixed to a permanent foundation and is connected to water mains or wells, sewer mains or a septic system, and electric services, as may be required by generally-applicable ordinance;

(b) The structure, excluding any addition, has a width of at least [twenty-two] feet at one point, a length of at least [twenty-two] feet at one point, and a total living area, excluding garages, porches, or attachments, of at least [nine hundred] square feet;

(c) The structure has a six-inch minimum eave overhang, including appropriate guttering; and

(d) [other.]

"Planned Unit Development" means one or more lots, tracts, or parcels of land to be developed as a single entity, the plan for which may propose density or intensity transfers, density or intensity increases, mixing of land uses, or any combination thereof, and which may not correspond in lot size, bulk, or type of dwelling or building, use, density, intensity, lot coverage, parking, required common open space, or other standards to zoning use district requirements that are otherwise applicable to the area in which it is located.

"Preliminary Subdivision" or "Preliminary Plan" means the initial drawing or drawings that indicate the proposed manner or layout of a proposed subdivision to be submitted to the local government.

"Public Improvement" means any improvement for which the local government entity is presently responsible or will, upon acceptance and determination that it has been constructed as approved, ultimately assume the responsibility for maintenance and operation.

"Resubdivision" means any change to an approved or recorded subdivision plat or lot, or parts thereof, that creates a lesser number of lots or parcels, changes the area or dimensions of lots or parcels, or changes the area or dimensions of any areas reserved for public use. Land that has been subject to, or is proposed to be subject to, resubdivision is a subdivision for the purposes of Chapter 8 [and this Act].

"Site Plan" means a scaled drawing that shows the development of lots, tracts, or parcels, whether or not such development constitutes a subdivision or resubdivision of the site. A site plan may include elevations, sections, and other architectural, landscape, and engineering drawings as may be necessary to explain elements of the development subject to review;

"Special Flood Hazard Area" means land in the floodplain within the jurisdiction of a local government subject to one percent or greater chance of flooding in any given year.

"Subdivision" means any land, vacant or improved, which is divided or proposed to be divided into two (2) or more lots, parcels, or tracts for the purpose of offer, sale, lease, or development, whether immediate or future. Subdivision includes the division or development of land for residential or nonresidential purposes, whether by deed, metes and bounds description, devise, intestacy, lease, map, plat, or other recorded instrument. Subdivision does not include condominiums pursuant to the [cite state condominium act] or the division of land into lots or parcels for cemetery purposes.

"Uniform Development Standards" mean standards and technical specifications for improvements to land required by subdivision, site plan review, and planned-unit development ordinances and, in order to be considered complete for purposes of Section [8-401(1)], shall include specifications for the placement, dimension, composition, and capacity of:

(a) streets and roadways;

(b) sidewalks, pedestrian ways, and bicycle paths;

(c) signage for traffic control and other governmental purposes, including street name signs, and other traffic control devices on streets, roadways, pedestrian ways, and bicycle paths;

(d) lighting of streets, pedestrian ways, and bicycle paths;

(e) water mains and connections thereto, including connections for the suppression of fires;

(f) sanitary sewers and storm-drainage sewer mains and connections thereto;

(g) utility lines and poles, conduits, and connections thereto;

(h) off-street parking and access thereto, except that local governments retain the power to prescribe minimum and maximum number of parking spaces for given types, locations, and densities or intensities of land use; and

(i) landscaping and contouring of land, and other provisions for drainage, sedimentation, and erosion control.


Commentary: Authority to Adopt Land Development Regulations

Section 8-102 below gives broad authorization to local government to adopt, amend, and provide for the enforcement of land development regulations. The Section lists in one place the entire range of land-use controls and related development incentives that individually may constitute a form of land development regulation that local governments may wish to use.[59]

Paragraph (4) contains general requirements for all land development regulations. The language contains a requirement that the land development regulations be published in both electronic and paper format. That ordinances exist in an electronic format is a fact of life that should be reflected in enabling legislation.[60] An advantage, of course, is that the electronic version will be searchable by phrase or keyword and the language below provides for that as well as requiring an index to further ensure user-friendliness.

Another provision in Paragraph (4) is intended to ensure that the land development regulations are kept current, reflecting amendments during the previous year. By providing for the regular updating of the land development regulations, users can be assured that they are relying on the most current version. Several states have similar provisions.[61]

Under paragraph (4), all land development regulations must "contain approval standards and criteria that are clear and objective." This language is derived from the administrative rules for Oregon's statewide land-use planning program.[62] It is intended to ensure regulations are specific enough that property owners and community residents affected by the regulations can understand what types of development and land use are allowed fully, not at all, or conditionally, and under what conditions.

Section 8-103 concerns the procedures for adoption and amendment of land development regulations, including notice and hearings. Paragraph (1) states who may initiate land development regulations and amendments and includes property owners who would be affected by the change as well as citizens of the local government. Paragraph (6) indicates who is to receive notice of the hearing when the proposed land development regulation affects "discrete and identifiable parcels of land," such as a zoning map amendment. These provisions, however, would not apply to administrative actions, such as a conditional use permit or a variance, which are addressed in Section 10-204, Notice of Hearing, and 10-205, Methods of Notice.


8-102 Authority to Adopt Land Development Regulations; Purposes; Presumption of Validity

(1) A local government may adopt and amend by ordinance land development regulations requiring that development within its jurisdiction be undertaken in accordance with the terms of the regulations.


(2) The purposes of land development regulations are to:

(a) implement the local comprehensive plan; and

(b) have regard for the state interests described in Section [2-102].

[or]

(b) promote the public health, safety, environment, morals, and general welfare.[63]

(3) Land development regulations may include the following types of land-use controls:

(a) a zoning ordinance, in text and map form;

(b) a subdivision ordinance;

(c) a planned unit development ordinance;

(d) a site plan review ordinance;

(e) an improvements and exactions ordinance that is part of the subdivision, site plan review, and/or planned unit development ordinance;

(f) a development impact fee ordinance;

(g) a concurrency or adequate public facilities ordinance;

(h) a transfer of development rights ordinance;

(i) an ordinance adopting a corridor map;

(j) a historic preservation or design review ordinance;

(k) a trip reduction or transportation demand management ordinance;

(l) an ordinance regulating development in critical and sensitive areas and/or natural hazard areas;

(m) an ordinance regulating development in floodplain areas;

(n) an ordinance regulating stormwater and/or erosion and sedimentation; and

(o) an ordinance authorizing mitigation banking;

(p) an ordinance regarding the provision of affordable housing, including, but not limited to, development incentives;

(q) an ordinance regarding the promotion of infill and brownfields redevelopment, including, but not limited to, development incentives;

(r) development agreements;

(s) interim versions of any of the ordinances above, to the extent consistent with the provisions of the Sections of this Act governing such ordinances; and

• For example, Boston employs interim overlay zoning districts to regulate individual areas of the city while the plans for that area are being revised.

(t) other local government regulations that affect the use or development of land.

(4) Land development regulations may provide for:

(a) development that, when in compliance with the terms of land development regulations, will be granted a development permit as of right;

(b) development for which a development permit will be granted only after the exercise of discretion by a body, agency, or officer of the local government in accordance with the criteria of this Act and any additional criteria contained in the land development regulations;

(c) development that is exempt from the requirement of obtaining a development permit but is otherwise subject to the requirements of the land development regulations; and

• Examples of development that might be exempt from obtaining a development permit but still subject to land development regulations would include agriculture, small signs, and minor repairs and maintenance.

(d) development that is exempt from the requirements of the land development regulations.[64]

Federal or state statutes may completely preempt local government regulations. For example, Ohio law (Ohio Rev. Code 4906.13) provides that only a state permit is required for the siting of major utility facilities and expressly exempts them from local authority.

See Sections 10-201 et seq., which describe the unified development permit review process.

(5) Regardless of the type of land-use control, land development regulations adopted by a legislative body of a local government shall:

(a) be drafted in a uniform format;

(b) employ common definitions, including any definitions that are required by this [Act or cite to applicable Chapters or Sections];

(c) contain approval standards and criteria that are clear and objective;

(d) be in both electronic and paper form; and

(e) contain an index, and be searchable in the electronic version.

Note that elaborate or expensive computing resources are not required to satisfy the requirements of subparagraphs (d) and (e). The "electronic form" or "electronic version" of land development regulations may be as simple as the word-processing files that were used to generate the printed version; most, if not all, word-processing programs include a "search" or "find" function.

(6) Land development regulations adopted by a legislative body of a local government shall:

(a) be certified by the [clerk of the local government] as a duly-adopted ordinance of the local government, effective as of the effective date in the ordinance;

(b) upon certification, be published by the local government on [insert month and day] of each year, unless there have been no amendments during the previous year, and made available for sale to the public at actual cost, or a lesser amount. A local government may also publish the electronic version of its land development regulations on a computer-accessible information network; and

(c) undergo periodic reexamination pursuant to Section [7-406].

(7) A land development regulation that is certified pursuant to paragraph (6) above shall be presumed to be valid.


8-103 Adoption and Amendment of Land Development Regulations; Notice and Hearing

(1) An ordinance adopting or amending land development regulations may be initiated by:

(a) a member of the local legislative body;

(b) the local planning agency;

(c) the local planning commission (if one exists);

(d) petition by owners of record of lots and parcels constituting at least [51] percent of the area that is to be the subject of the proposed ordinance; or

• This provision is necessary to allow landowners to apply for rezonings and zoning map amendments. Without it, they could not even formally seek a rezoning or map amendment without the "sponsorship" of the local planning agency or commission or of a member of the local legislative body.

[(e) petition by at least [insert number] bona fide adult residents of the local government.]

• This provision is included for states where the initiative mechanism is strongly embedded in the state constitution and the political culture. Where a state does not authorize initiative, or the lack of an initiative mechanism for land development regulations is not a "third-rail" issue, it is preferable that this provision not be included. Land development regulations should be coherent and consistent, and legislation drafted completely outside the planning process by citizen or special interest groups can threaten that basic coherency and consistency. On the other hand, where the local government is unwilling to implement the comprehensive plan, citizen initiative can provide the impetus for plan-consistent land development regulations.

(2) Before any ordinance adopting or amending any land development regulations may be enacted, the legislative body of the local government shall refer the proposed ordinance to the local planning commission (if one exists) for its written recommendations pursuant to Section [7-106(2)(d)]. The legislative body shall enter the written recommendations into its minutes.

(3) No ordinance adopting or amending any land development regulations may be enacted except by the legislative body of the local government, and only after it has held at least one public hearing on the proposed land development regulations or amendment, with notice in writing beforehand.

(4) Notice shall include:

(a) the date, time, and place of hearing;

(b) a description of the substance of the proposed land development regulations or amendment. If the proposed regulation or amendment affects discrete and identifiable lots or parcels of land, the description shall include a [legal and common] description of the affected lots or parcels;

(c) the officer(s) or employee(s) of the local government from whom additional information may be obtained;

(d) the time and place where such proposed land development regulations or amendment may be inspected by any interested person prior to the hearing; and

(e) the location where copies of the proposed land development regulations or amendment may be obtained or purchased.

(5) The local government shall give notice in writing of all public hearings on proposed land development regulations or amendments by publication in a newspaper or newspapers having general circulation in the jurisdiction of the local government [and may also give notice by publication on a computer-accessible information network or by other appropriate means] at least [30] days before the public hearing.

(6) The local government shall also give notice in writing of all public hearings on proposed land development regulations or amendments to:

(a) neighborhood planning councils established pursuant to Section [7-109]; and

(b) neighborhood and community organizations recognized pursuant to Section [7-110], by certified mail, mailed at least [30] days before the public hearing and addressed to the secretary of such council or organization, or such other person as may be designated to receive notice.

(7) When a proposed amendment to an existing land development regulation to be considered at a public hearing, including, but not limited to, a zoning map amendment, does not apply to all land in the local government and instead applies to discrete and identifiable lots or parcels of land, the legislative body shall also give notice in writing of that hearing by certified mail, mailed at least [30] days before the public hearing and addressed to:

(a) the owners of record of all parcels or lots that would be subject to the proposed amendment;

(b) the owners of record of parcels or lots [within 500 feet of or adjoining or confronting] parcels or lots that would be subject to the proposed amendment; and

(c) any other local governments that are [within 500 feet of or adjoining] parcels or lots that would be subject to the proposed amendment.

If the number of persons who are entitled to receive notice under subparagraphs (a) and (b) above exceeds [100], then the local government need not provide notice by certified mail to such persons.

• The purpose of notice is to have interested persons appear at the hearing and present their views on the proposed ordinance. When the proposed ordinance is of general importance, notice by publication is sufficient.[65] However, when an ordinance affects a relatively small number of specified landowners more or differently than the general class of landowners or residents, the opportunity for these persons to present their opinion becomes even more important, and such persons thus must receive direct notice by certified mail. For example, if a proposed zoning map amendment affects only a handful of parcels, the owners of these parcels must receive notice by certified mail. On the other hand, if a proposed zoning map amendment affects hundreds of owners, it is most likely a comprehensive rezoning and does not require notice by certified mail. In addition, this language also requires notice by certified mail to nearby local governments that could be affected by the proposed change.

(8) When a proposed amendment to an existing land development regulation to be considered at a public hearing, including, but not limited to, a zoning map amendment, applies only to a specific lot or parcel, or contiguous lots or parcels, the local government may also require the posting of a sign bearing the notice required by this Section upon the property in question and may establish standards for the location, size, and composition of the sign.

(9) At the public hearing, the legislative body shall permit all interested persons, specifically including persons entitled to notice by certified mail pursuant to this Section, to present their views orally or in writing on the proposed land development regulation or amendment.

(10) The hearing may be continued from time to time.

(11) After the public hearing, the legislative body may revise the proposed land development regulation or amendment, giving consideration to all written and oral comments received.

(12) Local governments may employ a streamlined procedure for interim land development regulations, pursuant to [statute on emergency ordinances], but such procedure shall include notice to the parties required by this Section and the public hearing required by this Section.


Commentary: Gauging Regulatory Consistency with a Local Comprehensive Plan

[66]

The Standard Zoning Enabling Act (SZEA), as noted above, required in Section 3, that zoning regulations be "in accordance with a comprehensive plan." The meaning of that phrase, left undefined in the SZEA, has spawned a large body of litigation and corresponding commentary and analysis on the question of regulatory consistency.[67] Was a separate plan required as a prerequisite to the enactment of a zoning ordinance? Assuming a plan was required, what was the nature of the analysis to be conducted to determine the connection between the plan and the zoning regulations, especially the zoning map.

Several states have provided in their statutes that zoning, and in some cases other land development regulations, must be consistent with and implement the local comprehensive plan specifically, as opposed to the SZEA's "a comprehensive plan." Arizona[68] states that zoning ordinance and regulations "shall be consistent with and conform to the adopted general plan of the municipality, if any." California[69] law is that a zoning ordinance shall be consistent with the general plan of a county or city if the plan has been officially adopted and "if the various land uses authorized by the ordinance are compatible with the objectives, policies, general land uses, and programs specified in such a plan." Delaware[70] provides that the land use map in a comprehensive plan has "the force of law" and "no development shall be permitted except in conformity with the land use map ... and with land development regulations enacted to implement the other elements of the adopted comprehensive plan". Kentucky[71] requires consistency unless findings are made concerning appropriateness of zoning or that economic, physical, or social changes have occurred that were not anticipated in the comprehensive plan and which have substantially altered the basic character of the area. Maine [72] states that local zoning ordinances and maps must be "pursuant to and consistent with a comprehensive plan adopted by the municipal legislative body." Nebraska[73] provides that zoning regulations must be preceded by the adoption of a comprehensive development plan and must be consistent with that plan. Oregon[74] states that comprehensive plans "[s]hall be the basis for more specific rules and land use regulations which implement the policies expressed through the comprehensive plans"). Rhode Island[75] defines a comprehensive plan as the document "to which any zoning adopted [pursuant to the statute] shall be in compliance" and, in requiring consistency with the comprehensive plan, specifically provides that the zoning ordinances shall be interpreted to "further the implementation of" the plan. Washington's Growth Management Act[76] requires city and county land development regulations to be "consistent with and implement" the comprehensive plan, and also[77] provides that the development regulations of cities and counties that are not subject to the Growth Management Act "shall not be inconsistent with the city's or county's comprehensive plan") and Wash. Rev. Code (development regulations for cities and counties that plan must be "consistent with and implement" the comprehensive plan). And Wisconsin[78] states that all programs or actions of a local government that affect land use must be consistent with the local comprehensive plan, including annexation and cooperative boundary agreements as well as zoning and subdivision regulation.

Contents of the Model Section

Based in part on a Florida statute[79], Section 8-104 below embodies the idea that the local comprehensive plan should be implemented through the local regulatory framework — the zoning ordinance, the subdivision ordinance, and related land development regulations — as well as individual development decisions that are either legislative or administrative in nature. The consistency doctrine merges intentions and actions. The local comprehensive plan is not simply a rhetorical expression of a community's desires. It is instead a document that describes public policies a local government actually intends to carry out. If it were otherwise, why bother to complete and adopt one?

Section 8-104 calls for a written analysis to be conducted by the local planning agency whenever there are land development regulations, amendments, or "land-use actions" proposed. The agency applies a three-prong test in paragraph (3) in evaluating consistency. Here the purpose is to provide positive coordination and to ensure that, when proposals involving land development regulations and individual development decisions arise: (a) there is a careful assessment of their relationships with the local comprehensive plan; and (b) that assessment is part of the public record concerning the legislative or administrative decision. The only situation where such an analysis need not (indeed cannot) be produced is where there is no comprehensive plan with which to compare the land development regulations in states that have not mandated the adoption of a comprehensive plan. Where a comprehensive plan is mandatory and one has not been adopted, the local government's land development regulations will be void, since they cannot be consistent with the plan.[80]

The written report must state whether or not, in the opinion of the local planning agency, the regulations, amendment, or action is consistent with the local comprehensive plan. The written report is also to contain recommendations as to whether or not to approve, deny, substantially change, or revise the regulations, amendment, or action. If the agency finds there is an inconsistent relationship between the local comprehensive plan and the proposal, it may also recommend ways of modifying the plan to eliminate it. The written report is advisory to the legislative or administrative body receiving it. The legislative or administrative body may: (a) adopt the report; (b) reject the report; or (c) adopt the report in part and reject it in part. If the body rejects the report or part of it, it must conduct the same analysis that the local planning agency undertook concerning consistency, and must make its own findings before taking action.


8-104 Consistency of Land Development Regulations with Local Comprehensive Plan

(1) Land development regulations and any amendments thereto, including amendments to the zoning map, and land-use actions shall be consistent with the local comprehensive plan, provided that in the event the land development regulations become inconsistent with the local comprehensive plan by reason of amendment to the plan or adoption of a new plan, the regulations shall be amended within [6] months of the date of amendment or adoption so that they are consistent with the local comprehensive plan as amended.

(a) Except as provided in paragraph (1) above, any land development regulations or amendments thereto and any land-use actions that are not consistent with the local comprehensive plan shall be voidable to the extent of the inconsistency.

[(b) Any land development regulations or amendments thereto shall be void [6] months from the date on which a local comprehensive plan is required to be adopted, if a comprehensive plan must be adopted pursuant to Section [7-201] but no comprehensive plan has been adopted.]

(c) As used in this Section, "Land-Use Action" means preliminary or final approval of a subdivision plat; approval of a site plan; approval of a planned unit development; approval of a conditional use; granting of a variance; adoption of a development agreement; issuance of a certificate of appropriateness; and a decision by the local government to construct a capital improvement and/or acquire land for community facilities, including transportation facilities. Approval as used in this paragraph includes approval subject to conditions.

• If a local government is required to adopt a comprehensive plan, but it has not, then its land development regulations will be voidable, as they are not consistent with a plan. The bracketed subparagraph (1)(b) is linked to Alternative 2 for Section 7-201 — if Alternative 2 is adopted, so must the bracketed subparagraph be adopted.

(2) A local government shall determine, in the manner prescribed in this Section, whether such land development regulations, amendments thereto, and land-use actions are consistent with the local comprehensive plan. Before the legislative body of a local government may enact or amend land development regulations and before the legislative body, the local planning commission, the hearing examiner, the Land-Use Board of Review, or any other body with administrative authority may take any land-use action, the local planning agency shall prepare a written report to the legislative or administrative body regarding the consistency with the local comprehensive plan of: the proposed land development regulations; a proposed amendment to existing land development regulations; or a proposed land-use action. The written report shall be advisory to the legislative or administrative body. Pursuant to paragraph (3) below, the written report shall state whether or not, in the opinion of the local planning agency, the regulations, amendment, or action is consistent with the local comprehensive plan. The written report shall also contain recommendations pursuant to paragraph (4) below as to whether or not to approve, deny, substantially change, or revise the regulations, amendment, or action. The local planning agency shall make the written report available to the public at least [7] days prior to any public hearing or meeting on the regulations, amendment, or action that is the subject of the report.

(3) The local planning agency shall find that proposed land development regulations, a proposed amendment to existing land development regulations, or a proposed land-use action is consistent with the local comprehensive plan when the regulations, amendment, or action:

(a) furthers, or at least does not interfere with, the goals and policies contained in the local comprehensive plan;

(b) is compatible with the proposed future land uses and densities and/or intensities contained in the local comprehensive plan; and

(c) carries out, as applicable, any specific proposals for community facilities, including transportation facilities, other specific public actions, or actions proposed by nonprofit and for-profit organizations that are contained in the local comprehensive plan.

In determining whether the regulations, amendment, or action satisfies the requirements of subparagraph (a) above, the local planning agency may take into account any relevant guidelines contained in the local comprehensive plan.

(4) If the local planning agency determines that the regulations, amendment, or action is not consistent with the local comprehensive plan, it:

(a) shall state in the written report what changes or revisions in the regulations, amendment, or action are necessary to make it consistent; and

(b) may state in the written report what amendments to the local comprehensive plan are necessary to eliminate any inconsistency between the plan and the regulations, amendment, or action.

(5) The legislative or administrative body shall, upon receipt of the written report of the local planning agency, review it and, giving the report due regard, shall in the written minutes of its deliberations:

(a) adopt the report;

(b) reject the report; or

(c) adopt the report in part and reject it in part.

(6) If the legislative or administrative body rejects the report in part or in whole, in the written minutes of its deliberations:

(a) it shall state whether the proposed land development regulations, a proposed amendment to existing land development regulations, or a proposed land-use action is consistent with the local comprehensive plan pursuant to paragraph (3) above; and/or

(b) if the legislative or administrative body determines that the regulations, amendment, or action is not consistent with the local comprehensive plan:

1. it shall state what changes or revisions in the regulations, amendment, or action are necessary to make it consistent; and/or

2. it may state what amendments to the local comprehensive plan may be necessary to eliminate any inconsistency between the plan and the regulations, amendment, or action.


Commentary: Relationship of Land Development Regulations with Other State and Federal Programs

It is important for a local government to understand how its land development regulations may interact or interfere with the efforts of other sovereign governmental units. For example, a local government may formulate land development regulations to control the siting of hazardous waste facilities only to find out, after costly litigation, that the state government was already doing the same thing and had preempted local action.[81] Alternately, a local government may believe it has the authority to require a conditional use permit for dredging and filling, but that it turns out, again after litigation, that the legislature had clearly delegated water resource conservation responsibility, particularly jurisdiction over dredging and filling, to the state resources agency.[82]

Based on administrative rules from Washington state[83], Section 8-105 below calls for the local government to at least "take into consideration" a variety of federal or state laws, regulations, programs, and plans when formulating and drafting land development regulations. By so doing, a local government can reduce the likelihood of mishaps and poor coordination, as well as actions that may be flatly prohibited. To assist the local government, the Section, in paragraph (3), calls for the state planning agency to maintain a list of such state and federal activities and to publish it for local government use.


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