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    July 01, 2015 Urban Lawyer

    Recent Developments in Comprehensive Planning

    by Edward J. Sullivan & Jennifer M. Bragar

    Edward J. Sullivan has a B.A., St. John’s University (N.Y.), 1966; J.D., Willamette University, 1969; M.A. (History), Portland State University, 1973; Urban Studies Certificate, Portland State University, 1974; M.A. (Political Thought), University of Durham, 1998; Diploma in Law, University College, Oxford, 1984; LL.M., University College, London, 1978.

    Jennifer M. Bragar has a B.A., University of California, Santa Cruz, 1998; J.D., Northwestern School of Law, Lewis and Clark College, 2007.

    The authors are indebted to James D. O’Donnell, Lewis & Clark Law School 2015,
    for the initial research in the preparation of this article.

    I.  Introduction

    This recent developments articles catalogues the role of the comprehensive plan in land use regulation.1 As it has for many years, this report examines three major traditions (or schools of thought) regarding the impact of the comprehensive plan. One school exemplifies the long-standing view that a separate plan is unnecessary — all that “counts” are the zoning regulations and map, which in effect become the plan. A second school, which may now comprise a majority of states, is that the plan is a factor (of greater or lesser degree) in evaluating the validity of land use regulations or actions. A third school consists of those states that by legislation or case law have elevated the plan to a quasi-constitutional role. The report then examines cases decided during this period that deal with plan amendments and interpretations.

    The issue of the role of the plan arises in large part due to ambiguities in suggested enabling legislation proposed to the states by a “blue ribbon” committee appointed by then Secretary of Commerce Herbert Hoover regarding proposals to have states enable planning and zoning. Two proposals emerged from the deliberations of the “blue ribbon” committee, the Standard State Zoning Enabling Act (1924),2 adopted by three-quarters of the states and the Standard City Planning Enabling Act (1926),3 adopted by half the states.

    The ambiguity arose due to Section 3 of the Standard State Zoning Enabling Act, which required that zoning be “in accordance with a comprehensive plan.”4 That term was not defined, nor was there mention of a “comprehensive plan” in the Standard City Planning Enabling Act. The issue of the necessity for a plan, as well as its impact, arose in cases in which Section 3 was cited. Courts, early on, almost uniformly overlooked the words of Section 3 and found the “comprehensive plan” requirement fulfilled by the zoning regulations and map, thus avoiding the uncomfortable result of invalidation of the zoning ordinance or actions on that account.5

    In 1955, Professor Charles Haar raised the issue of the role of the plan in a now-famous article published in the Harvard Law Review.6 There, Haar suggested that Section 3 be given a meaning that a plan is recognized as a document separate from the zoning regulations and map and provides an outside reference point for zoning regulations and actions.7 Professor Daniel Mandelker made a similar suggestion in another seminal article about twenty years later.8

    Partially in response to those articles and other criticism, courts began to reexamine the role of the plan, leading to the division of approaches that are set forth below. As will be seen, the traditional view that a plan is unnecessary and superfluous still survives.9 There is an emerging view, however, held by what might constitute a majority of the states, that the plan has at least some significance in evaluating the validity of land use regulations or actions.10 Finally, there is a solid minority of states that accord the plan a dispositive effect.11 In the last two views, the plan achieves significance and thus, when it is amended or interpreted, the plan achieves an importance well beyond that which was ascribed to it before 1970. Let us now review the cases that have arisen over the past year. 

    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 the greatest number of cases in this category over the last year.12 One case was reviewed at the appellate level, while many others were decided at the sub-appellate level.

    In MacKenzie v. Planning and Zoning Commission of the Town of Monroe, plaintiffs appealed the grant of a zone change and special exception to adjust setbacks.13 The court distinguished between the town’s legislative role in making the zone change determination and its administrative role in determining a special exception is consistent with town’s regulations.14 While the court reversed on the grant of special exception, it found the zone change valid.15

    One case, which involved approving a rezone of property from residential to business zoning to accommodate parking for a future retail development, was affirmed because the record contained ample evidence that the changes were consistent with the town’s comprehensive plan in that the corridor was designated for large scale retail and generally contained commercially-zoned properties.16 Another case involved denying an application for establishment of a planned development district. The court upheld the town’s subjective analysis of whether the proposal was consistent with its “comprehensive plan” because adding a residential use to a non-conforming commercial and industrial tract creates a hybrid parcel incompatible with the local government’s conception of its plan.17

    Two other states that hold the unitary view also have notable reported decisions. In Kentucky, a court affirmed the location of a cell tower, which had an approximately 200-foot height variance and landscaping modification grant, despite the appellants’ complaint that the decision was inconsistent with the goals and objectives of the comprehensive plan.18 The court found the comprehensive plan is intended to be a guide for development, “not a straight-jacket,” and analyzed whether the Planning Commission’s decision was arbitrary.19 The court then reviewed evidence in support of the waivers and found that the tower would not have visual impacts on historic resources, would not pose a safety risk, and would not reduce property values in the neighborhood.20 In Louisiana, a court upheld a decision to deny a zoning application based on adherence to the zoning code and found no improper reliance on either the comprehensive plan or area plan that affected a property owner’s request for a conditional use approval.21

    Thus, in states that continue to adopt the historical unitary view concerning zoning ordinances, and where the local government provides a subjective interpretation of those ordinances, courts will uphold decisions that conclude such regulations constitute a comprehensive plan.

    III.  The Plan as a Factor

    The “broad middle” of states, which accept the plan as a greater or lesser factor in evaluating land use regulations or actions, now may constitute a majority of states. The principal issue will be the weight accorded to the plan.

    In Washington, a mitigation fee for job retention in connection with construction of a sewage treatment plant was upheld as an appropriate condition because job retention was consistent with the comprehensive plan.22 The condition was found to adequately mitigate adverse impacts to economic development.23

    In Illinois, the plan is seen as advisory and not having the force of law.24 The existence and consistency of a land use action with a plan is a factor in evaluating the validity of that action.25 In an Indiana case, there was a failure to show compliance with a local ordinance provision that required, inter alia, that a planned unit development “furthers the purposes of the comprehensive plan.”26 The Commission’s denial was upheld on multiple grounds. In a Minnesota case, In re Environmental Impact Statement,27 the determination was whether a negative declaration for exemption from an Environmental Impact Statement in connection with a silica sand mining project depended, in part, on conformity with the County’s comprehensive plan (which was found to be met in this case).28

    New York has an ambivalent relationship with the plan, interpreting the requirement that zoning regulations be “in accordance with a comprehensive plan,” as requiring that consideration be given to the needs of the community as a whole.29 There must be a “clear conflict” with the plan before a land use regulation or action is invalid or unlawful “spot zoning” is found.30 The plan is also a factor in evaluating relaxation of environmental or conservation regulations.31 Nevertheless, one New York Court found a local comprehensive plan was “merely a policy document,” consisting only of recommendations, rather than specific plans for development, so that any environmental harm was “purely speculative.”32

    In a North Carolina case, Etheridge v. County of Currituck,33 the failure of a rezoning from an agricultural to an industrial designation to conform to the local comprehensive plan was a factor in affirming summary judgment in favor of neighbors opposed to the rezoning.34 In Atkinson v. City of Charlotte,35 the failure to enter adequate findings of plan consistency led to the reversal of legislative zoning ordinance amendments relating to parking facilities.36

    A Pennsylvania case, Penn Street, L.P. v. East Lampeter Township Zoning Hearing Board,37 demonstrates the status of the plan in that state. Plaintiff property owner sought to invalidate large-lot agricultural zoning in part because the land was within an urban growth boundary established by the applicable plan, although the future land use map of that plan placed the site within a future rural/ agricultural area.38 However, the court referred to the planning enabling legislation that stated:

    Notwithstanding any other provision of this act, no action by the governing body of a municipality shall be invalid nor shall the same be subject to challenge or appeal on the basis that such action is inconsistent with, or fails to comply with the provisions of the comprehensive plan.39

    Quoting from its decision in Atherton Dev. Co. v. Twp. of Ferguson,40 the court said:

    This court stated that while a comprehensive plan is a useful tool for guiding growth and development, it is by its nature, an abstract recommendation as to land utilization. Inconsistency with a comprehensive plan is not a proper basis for denying a land development plan. Similarly, it cannot be a basis for a substantive challenge to a zoning ordinance. Here, [the developer] filed its challenge on the basis that the [o]rdinance, which zones some of the property [a]griculrural, is inconsistent with and fails to comply with the comprehensive plan. As acknowledged by the [the developer], however, 53 P.S. §10303(c) does not authorize such a challenge.41

    The court concluded that plan inconsistency was not a basis for a challenge to a zoning designation.42 In another case in that state, Williams Holding Group, LLC v. Board of Supervisors of West Hanover Township,43 the court reversed a denial of a stormwater facility conditional use permit in a hillside and slope overlay protection district enacted pursuant to plan policies.44 A dissent emphasized a larger role of these policies in the administration of the conditional use permit scheme than that given by the majority.45

    The cases in this section demonstrate that the plan may play a role in evaluating the validity of land use regulations and actions in certain states.

    IV.  The Plan as a Quasi-Constitutional Document

    As in previous years, the bulk of cases in this category come from the “usual suspects” of California, Florida, Oregon, and Washington — all states with a well-developed sense of the plan’s primacy. In addition, the District of Columbia has held that the plan has primacy, except where specifically provided that the plan is not binding.46

    In Sterling Park, L.P. v. City of Palo Alto,47 respondent, Palo Alto, had a code provision to the effect that any developer of five or more units must conform to a certain provision of the city’s plan, which required that twenty percent of those units be made available at below market rates.48 The only question before the court was whether the California Fee Mitigation Statute,49 which allows review for exactions, applied in this case; and the court found that it did.50 In Foothills Communities Coalition v. County of Orange,51 plaintiffs challenged the creation of a new zoning definition for senior residential housing to accommodate a particular proposal. The court found the obligation of plan consistency52 to be met.53

    The Florida cases in this year’s report illustrate some consequences of plan consistency requirements. In Ocean Palm Golf Club Partnership v. City of Flagler Beach,54 the refusal to change a plan designation of land under the circumstances was found not to be a taking.55 In Archstone Palmetto Park, LLC v. Kennedy,56 a statute prohibiting a referendum on a development order or plan provision was at issue.57 In 2011, the legislature revised the prohibition58 and the court applied that prohibition to nullify a referendum.59

    In the District of Columbia, the plan guides executive and legislative decisions on matters affecting the District and its citizens.60 In Durant v. District of Columbia Zoning Commission,61 the court determined that conflict with one or more individual plan policies did not preclude an overall finding of plan consistency, but that balancing of various plan policies to allow a project must be explained by way of findings.62

    Other states have upheld the primacy of the comprehensive plan in various circumstances. In Indiana, a statute giving cities with comprehensive plans zoning jurisdiction over land within two miles of its boundaries was applied to allow a city to control land uses in that area.63 In Kentucky, a statute requires a local government to find a zone change to be “in agreement with” an adopted comprehensive plan, but provides circumstances in which that plan may be overridden.64 In another recent case, the Kentucky Supreme Court upheld a rezoning denial when the plan was not met and the other circumstances were not present.65 Additionally, the North Dakota Supreme Court upheld the denial of a rezoning for noncompliance with the county comprehensive plan.66

    Oregon requires that land use regulations and actions conform to a comprehensive plan67 and to statewide planning goals (an issue beyond this report).68 Thus, in a dispute over whether a traffic signal was required by a local transportation plan, a LUBA determination69 that the plan did not require a signal in any particular place was upheld.70 Similarly, a local determination to defer consideration of whether a destination resort could significantly affect a transportation facility under state law and its comprehensive plan was erroneous and a ground for remand of its decision to approve the resort.71

    Washington has also struggled with the role of the plan in land use regulation. In a dispute over the adequacy of its critical area inventories of important local habitats and species under the state’s Growth Management Act (GMA),72 the decision by the Growth Management Hearings Board that the inventories were inadequate was affirmed.73 The court of appeals found that the county may depart from state-supplied inventories, but only if the departure is “reasoned.”74 Because the plan was binding, the inventories used to protect critical areas were an essential element of the process, justifying a remand.75 In Save Our Scenic Area v. Skamania County,76 that same court found a discrepancy between a conservancy designation in a plan and the failure to zone certain property at all justified consideration of equitable relief to require regulations consistent with the county’s plan.77

    All in all, the cases involving states where plans are binding turn on nuances in the enabling legislation or rules or in the plans themselves, generally allocating responsibility for plans to elected officials.

    V.  Plan Amendments

    The state of Washington had several plan amendment cases that involved interesting procedural matters. In Town of Woodway v. Snohomish County, the state’s Supreme Court ruled that its statutory vested rights doctrine, under which the applicable land use plans and development regulations that apply to a land use permit are frozen at the time of application, grants the applicant those rights even if the plans and regulations are later found to be noncompliant with the State Environmental Policy Act because regulations enacted under the state’s Growth Management Act are presumed valid upon adoption.78 Although comprehensive plan amendments that redesignated property from Urban Industrial land to Urban Center land were found faulty be- cause the county’s environmental impact statement did not consider multiple alternatives to the Urban Center designation, the applicant who filed for permits in reliance of the amendments was able to move forward under the vested rights doctrine.79

    In Miotke v. Spokane County, decided one month after the Town of Woodway decision, the plaintiff challenged the county’s expansion of the comprehensive plan’s Urban Growth Area (UGA).80 Based on the Growth Management Hearings Board determination that the UGA expansion was invalid, the county repealed the expansion resolution.81 The plaintiffs, however, did not think the repeal resolved the noncompliance with the GMA, given the urban development that vested under it.82 The court agreed and reasoned that the vested rights doctrine exists in part to ensure fairness to landowners and developers who would otherwise be subject to unforeseeable rule changes, but does not insulate the county for its own shortcomings in the planning process.83 The county must plan for a way to meet the GMA goals concerning reduction of urban sprawl, promotion of urban development, and adequacy of facilities and services, despite its improper adoption of the UGA expansion that resulted in an "island UGA."84

    In Krickovic v. Borough of Edgewater,85 amendments to the borough’s zoning ordinance that created mixed use zone districts and allowed twenty story buildings in the residential (R-5) zone were challenged.86 The court upheld the zone change because the amendments were determined to be consistent with the master plan’s goals to provide a variety of different uses, establish appropriate population densities, and create pedestrian friendly areas.87

    New York’s highest court upheld plan and zoning ordinance amendments that prohibited oil and gas exploration, extraction, and storage activities, concluding that the state’s mining law did not preempt valid exercise of the town’s home rule authority, including its zoning.88

    Oregon saw the remand of a conditional comprehensive plan amendment to add over 68,000 acres to Klamath County’s destination resort overlay because the lower administrative review board did not adequately analyze whether the County had considered impacts to transportation facilities.89 Another Oregon case involving a city’s amendment to its urban growth boundary was also faulted for its lack of substantial reason to justify its findings that the city had adequately analyzed industrial land needs.90

    These cases further the assertion that state courts are increasingly viewing plans as a significant tool to help regulate land use.

    VI.  Plan Interpretations

    As plans become more significant to land use regulations and actions, the means by which those plans are interpreted also become important, as recent cases illustrate.

    In an Indiana case, Brookview Properties, LLC v. Plainfield Plan Commission,91 the court of appeals affirmed a denial of a Planned Unit Development plans, inter alia, because it found no support for the applicant’s assertion (which was rejected by the Commission) that the local comprehensive plan recommends a mixed use between certain commercial and residential lands.92

    In Friends of the Hood River Waterfront v. City of Hood River,93 the Oregon Court of Appeals upheld a rejection of a city’s interpretation of the flood plain provisions of its plan so as to limit their application to areas zoned “FP” (Flood Plain) even if areas (such as the subject site) were actually within a flood plain.94 Reading several plan provisions together, the court agreed that the city’s decision was not “plausible”95 but modified the relief ordered below to allow the city more flexibility in protecting flood prone areas.96

    Finally, in Tarver v. City of Sheridan, the Wyoming Supreme Court was called upon to interpret a city master plan provision that “discourages” bed and breakfast enterprises in residential areas in the face of a grant of a special exemption.97 The court found that “discourage” is not equivalent to “prohibit,” that such enterprises are “lodging” which is residential in nature, and that the city provided the special exemption process for bed and breakfast uses in residential areas all served to support the city’s interpretation.98

    The conclusion that may well be drawn from these diverse cases is that plan interpretation may be as difficult and complex as interpretation of any statute or ordinance.

    VII.  Conclusion

    The cases relating to the role of the plan in land use regulations and actions over the past year continue a steady trend toward increased judicial respect for planning, a willingness to examine planning policies when zone changes or permits are challenged, and an increasing sophistication in interpreting plan policies.

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    1. The period covered by this report is October 1, 2013 through September 30, 2014.
    2. ADVISORY COMM. ON ZONING, U.S. DEP’T OF COMMERCE, A STANDARD STATE ZONING ENABLING ACT UNDER WHICH MUNICIPALITIES MAY ADOPT ZONING REGULATIONS (rev. ed. 1926), available at http://www.smrpc.org/workshops/ZBA%20Workshop%20April%2029%202009/A%20Standard%20State%20Zoning%20Enabling%20Act,%201926.pdf.
    3. ADVISORY COMM. ON CITY PLANNING & ZONING, U.S. DEP’T OF COMMERCE, A STANDARD CITY PLANNING ENABLING ACT (1928), available at http://www.planning.org/growingsmart/pdf/CPEnabling%20Act1928.pdf.
    4. ADVISORY COMM. ON ZONING, U.S. DEP’T OF COMMERCE, A STANDARD STATE ZONING ENABLING ACT UNDER WHICH MUNICIPALITIES MAY ADOPT ZONING REGULATIONS, 6 (rev. ed. 1926), available at http://www.smrpc.org/workshops/ZBA%20Workshop%20April%2029%202009/A%20Standard%20State%20Zoning%20Enabling%20Act%201926.pdf.
    5. The most frequently cited case is Kozesnik v. Twp. of Montgomery, 131 A.2d 1 (N.J. 1957).
    6. Charles M. Haar, In Accordance with a Comprehensive Plan, 68 HARV. L. REV. 1154 (1955).
    7. Id. at 1156.
    8. Daniel R. Mandelker, The Role of the Local Comprehensive Plan in Land Use Regulation, 74 MICH. L. REV. 899, 904 (1976).
    9. See infra Section II.
    10. See infra Section III.
    11. See infra Section IV.
    12. See infra notes 15-17.
    13. MacKenzie v. Planning and Zoning Comm’n of the Town of Monroe, 77 A.3d 904, 909 (Conn. App. Ct. 2013).
    14. Id. at 926. The court cited Weigel v. Planning & Zoning Commission, 160 Conn. 239, 278 A.2d 766 (1971) to distinguish the broad legislative authority to determine compliance of a newly-created zone with a “comprehensive plan” (which was not a document separate from the zoning regulations) from the more carefully circumscribed authority to grant a special use or variance application.
    15. Id. at 926. The state also reviews variance requests to determine that the proposed change will not substantially affect a comprehensive plan with varying results. While the cases turn on whether a hardship is established, the courts also must find consistency with the plan. Compare Coppola v. Zoning Board of Appeals of the Town of Fairfield, 2014 WL 2055635, at *8 (Conn. Super. Ct., Jan. 22, 2014) (consistency with the comprehensive plan found where a single family residence is permitted in the zone) and Longhitano v. Zoning Board of Appeals of the Town of Essex, 2013 WL 6671483, at *3 (Conn. Super. Ct., Nov. 27, 2013) (variance found consistent with plan where setbacks were adjusted and increased footprint was allowed because variances would result in a more conforming use) with Armstrong v. Planning and Zoning Board of Appeals of the Town of Greenwich, 2014 WL 5094350,6 (Conn. Super. Ct., Sept. 3, 2014) (two-car garage would be a neighborhood anomaly and would impair the comprehensive plan).
    16. UB Litchfield, LLC v. Zoning Comm’n of the Town of New Milford, 2013 WL 6978822, at *3 (Conn. Super. Ct. Dec. 13, 2013). Another case that involved parking pressures involved a variance request to provide accessible housing, where the variance was denied because of impacts to residential parking, notwithstanding that promoting accessible housing would further the city’s comprehensive plan policies. MAB Partners v. Zoning Board of Appeal of the City of Bridgeport, 2013 WL 6916690, at *5 (Conn. Super. Ct. Nov. 25, 2013).
    17. Haggett v. Plainfield Planning and Zoning Commission, 2013 WL 7084793, 11 (Conn. Super. Ct., Dec. 27, 2013).
    18. Hampson v. Boone County Planning Commission, 460 S.W.3d 912 (Ky. Ct. App. 2014).
    19. Id. at 920.
    20. Id.
    21. Our Lady of the Lake Roman Catholic Church v. City of Mandeville, 147 So.3d 186, 193-94 (La. Ct. App., 2014). Also, consider those states where the purpose of zoning is to provide an overall comprehensive plan for land use. See, e.g., Lake Delavan Property Company, LLC v. City of Delavan, 844 NW2d 632, 634 (Wisc. Ct. App. 2014) (finding that subdivision regulations are distinct from zoning regulations and that a city may not use its extraterritorial plat approval authority to impose land use regulation that should have been done in cooperation with neighboring towns through extraterritorial zoning).
    22. Cedar River Water and Sewage Dist. v. King Cnty., 315 P.3d 1065, 1083 (Wash. 2013).
    23. Id.
    24. Vill. of East Dundee v. Vill. of Carpentersville, No. 2-13-1006, 2014 Ill. App. 2d 131006-U, at *7 (Ill. App. Ct. April 30, 2014).
    25. Mossville Land Invs., LLC v. Peoria Cnty Bd., 2014 Ill. App. 3d 130222-U, at *9 (Ill. App. Ct. June 5 2014).
    26. Brookview Props, LLC v. Plainfield Plan Comm’n, 15 N.E.3d 48, 52 (Ind. Ct. App. 2014).
    27. 849 N.W.2d 71 (Minn. Ct. App. 2014).
    28. Id. at 83-84. With regard to the plan issue, the court said:
      The county’s comprehensive plan promotes the protection and preservation of agricultural lands by limiting nonagricultural development. According to the county, mining natural resources, such as silica sand, in small-scale mining operations is historically attributable to agricultural areas.
      Id.; see also Duke Realty Corp. v. Cnty. of Hennepin, 2013 WL 5629584 (Minn. Tax Ct. Oct. 1, 2013); In re Acquisition of Real Property by State, 990 N.Y.S.2d 105 (N.Y. App. Div. 2014); Ultra Equities Co. v. City of New York, 980 N.Y.S.2d 275 (N.Y. App. Div. 2013) (effect of comprehensive plan on calculation of market value of land).
    29. Udell v. Haas, 235 N.E.2d 897 (N.Y. 1968). In Serota Smithtown LLC v. Town of Smithtown Board of Zoning Appeals, 990 N.Y.S.2d 440, at *10 (N.Y. Sup. Ct. 2014), it appears that conformity with the local comprehensive plan was a factor in the remand of a denial of a special exception.
    30. Dawley v. Town of Tyre, 992 N.Y.S.2d 158, at *6 (N.Y. Sup. Ct. May 8, 2014); Restuccio v. City of Oswego, 979 N.Y.S.2d 749, 750 (App. Div. 2014); Hart v. Town Bd. of Town of Huntington, 980 N.Y.S.2d 128, 131 (App. Div. 2014); Nicholson v. Inc. Vill. of Garden City, 978 N.Y.S.2d 288, 290 (App. Div. 2013).
    31. Long Island Pine Barrens Soc’y, Inc. v. Central Pine Barrens Joint Planning & Policy Comm’n, 980 N.Y.S.2d 468, 472 (App. Div. 2014); Birchwood Neighborhood Ass’n v. Planning Bd. of the Town of Colonie, 977 N.Y.S.2d 454, 455 (App. Div. 2013).
    32. Schaefer v. Legislature of Rockville Cnty., 976 N.Y.S.2d 178, 179 (App. Div. 2013).
    33. 762 S.E.2d 289 (N.C. Ct. App. 2014).
    34. Id. at 297. On the other hand, that same court avoided reaching the consistency issue in reversing a trial court order which had in turn reversed a local government denial of a special use permit, as there were other grounds on which to uphold that order. Templeton Prop. LP v. Town of Boone, 759 S.E.2d 311 (N.C. Ct. App. 2014).
    35. 760 S.E.2d 395 (N.C. Ct. App. 2014).
    36. Id. at 398.
    37. 84 A.3d 1114 (Pa. Commw. Ct. 2014).
    38. Id. at 1129.
    39. Id. at 1130 (quoting 53 PA. CONS. STAT. §10303(c) (2000)).
    40. 29 A.3d 1197 (Pa. Commw. Ct. 2011).
    41. Penn State, L.P., 84 A.3d at 1131 (internal citations omitted).
    42. Penn State, 84 A.3d at 1132. On the other hand, when a Pennsylvania municipality undertakes a consistency requirement in its own zoning regulations, the courts will hold that municipality to the same. Markwest Liberty Midstream & Resources, LLC v. Cecil Township Zoning Hearings Board, 102 A.3d 549 (Pa. Commw. Ct. 2014).
    43. 101 A.3d 1202 (Pa. Commw. Ct. 2014).
    44. Id. at 1220.
    45. Id. at 1221.
    46. Durant v. District of Columbia Zoning Commission, 99 A.3d 253 (D.C. App. 2014).
    47. 310 P.3d 925 (Cal. 2013).
    48. Id. at 1196; see also PALO ALTO MUN. CODE §18.14.030 (referencing General Plan Program H-36).
    49. CAL. GOVT. CODE §66020.
    50. 310 P.3d at 926.
    51. 222 Cal. App. 4th 1302, 166 Cal. Rptr. 3d 627 (2014).
    52. Id. at 1310. The court described the obligation in two portions of its decision as follows:
      The Project site is subject to both the County’s general plan and a specific plan. “[T]he general plan [is] a ‘ “constitution” for future development’ [citation] located at the top of ‘the hierarchy of local government law regulating land use’ . . . . The general plan consists of a ‘statement of development policies . . . setting forth objectives, principles, standards, and plan proposals.’ . . . The plan must include seven elements—land use, circulation, conservation, housing, noise, safety and open space—and address each of these elements in whatever level of detail local conditions require . . . . General plans are also required to be ‘comprehensive . . . (and) long term’ . . . as well as ‘internally consistent.’ . . . The planning law thus compels cities and counties to undergo the discipline of drafting a master plan to guide future local land use decisions.” DeVita v. County of Napa, 889 P.2d 1019 (Cal. 1995). A particular project must be “compatible with the objectives, policies, general land uses, and programs specified in” the general plan or any applicable, officially adopted specific plan. GOV. CODE, § 66473.5. Government Code section 66473.5 has been interpreted “as requiring that a project be ‘ “in agreement or harmony with” ’ the terms of the applicable plan, not in rigid conformity with every detail thereof.”
      Id.
    53. Id. (citing both the staff reports and findings in support of the approval as part of its consistency conclusion); see also Naples Coalition v. County of Santa Barbara, 2014 WL 294542 (Cal. Ct. App.).
    54. 139 So. 3d 463 (Fla. Ct. App. 2014).
    55. Two parcels (one with a golf club and another with open space) had been separated and were the subject of a development agreement in which one parcel was to be developed for high-density use and the other to remain in open space. Following the failure to get development approval the owner of the high density parcel attempted to secure a plan amendment to allow it to be developed as single family lots, but was denied. The case turned on the City’s overcoming of the presumption of the separateness of the two parcels and valuation testimony. Id. at 472-74.
    56. 132 So. 3d 347 (Fla. App. 2014); see also Beyer v. City of Marathon, 2013 WL 5927690 (Fla. Ct. App.).
    57. FLA. STAT. 163.3167(12). “An initiative or referendum process in regard to any development order or in regard to any local comprehensive plan amendment or map amendment that affects five or fewer parcels of land is prohibited. . .”.
    58. See FLA. STAT. § 163.3167(8) (2011). However, certain referendum practices were “grandfathered in.”
    59. 132 So. 3d at 353; see also O’Neil v. Walton County, 2014 WL 4628505 (Fla. Ct. App.) (upholding a challenged development order on the issue of plan consistency).
    60. D.C. CODE §1-306.01(b)(1) (2012 Repl.).
    61. 99 A. 3d 253 (D.C. App. 2014).
    62. Id. at 261-62; see also Howell v. District of Columbia Zoning Comm’n, 97 A.3d 579 (D.C. App. 2014); Randolph v. District of Columbia Zoning Comm’n, 83 A.3d 756 (D.C. App. 2014).
    63. Floyd Cnty. v. City of New Albany, 1 N.E.3d 207 (Ind. Ct. App. 2014).
    64. KY. REV. STAT. §100.213 (2015). In a zone map amendment case, the owners of a group home to service as a men’s recovery center appears to have been misplead, where the federal Fair Housing Act was not argued, when the court ruled the men were not properly considered as disabled under state law. Barren River Area Safe Space, Inc. v. City Comm’n of Bowling Green, 2014 WL 21590376, at *3 (Ky. Ct. App. May 23, 2014). The court remanded the map amendment for the City Commission to consider whether the application is in accordance with the Comprehensive Plan without classifying the residents as persons with disabilities under state law. Id.
    65. Allen Co., Inc. v. Lincoln Cnty. Fiscal Court, 2014 WL 1882181 (Ky. Ct. App. 2014). Similarly in an unreported Minnesota case, RDNT, LLC v. City of Bloomington, 2014 WL 30382 (Minn. Ct. App. 2014), the city’s ordinance provision requiring conformity of conditional use permits to a comprehensive plan was lawful and based on the evidence and findings before the City Council.
    66. Dahm v. Stark County Board of Commissioners, 841 N.W.2d 416, 422-24 (N.D. 2013).
    67. OR. REV. STAT. §197.175(2) (2014).
    68. Id.; see, e.g., Barkers Five, LLC v. Land Conservation and Dev. Comm’n, 323 P.3d 368, 389 (Or. Ct. App. 2014); 1000 Friends of Oregon v. Land Conservation and Dev. Comm’n, 317 P.3d 927 (Or. Ct. App. 2014).
    69. LUBA is a state administrative agency that reviews most local government land use decisions in lieu of trial courts. OR. REV. STAT. §§197.805-.850 (2014).
    70. Regency Centers, L.P. v. Washington Cnty., 335 P3d 856, 861 (Or. Ct. App. 2014).
    71. Root v. Klamath County, 320 P3d 631 (Or. Ct. App. 2014). Similarly, the plan designation given property is a significant factor in determining the assessed value of that property. Parsons v. Clackamas Cnty. Assessor, 21 Or. Tax 331, 338 (2013); Sustainable Inv. v. Marion Cnty. Assessor, 2014 WL 1281048 (Or. Tax Magistrate Div.).
    72. WASH. REV. CODE § 36.70A (2014). The GMA may result in the adoption of plans, which may raise constitutional issues. See Matichuk v. Whatcom Cnty., 180 Wash. App. 1028, No. 69105-8-1, slip op. at 2 (Wash. Ct. App. 2014) (stating that mandatory consolidation of undersized vacant parcels in the same ownership is not a taking).
    73. Ferry Cnty. v. Growth Mgmt. Hearings Bd., No. 31331-o-III, slip op. at 15, 2014 WL 4723114 (Wash. Ct. App. 2014).
    74. Id. at 4. In this case, the court criticized the county for a lack of a reasoned justification, using a substantial evidence analysis. Id. at 23-25. In Futurewise v. Growth Management Hearings Board, 178 Wash. App. 1015 (Wash. Ct. App. 2013), the Washington Court of Appeals noted that a local decision on a plan will be upheld unless it was “clearly erroneous.” In a dispute over the designation of agricultural lands, that court held that Pacific County was entitled to deference.
    75. Ferry Cnty., No. 31331-o-III, slip op. at 22. On the other hand, in Hirst v. Growth Management Hearings Board, No. 71739-1-I, slip op. at 5, 182 Wash. App. 1009 (Wash. Ct. App. 2014), the court rejected a challenge to the consistency of Whatcom County’s rural development policies both as to the GMA as well as regarding internal consistency. The controversy was over the County’s annual monitoring and review process for rural populations, which was within the allowable range of discretion, and this flexible approach was deemed sufficient.
    76. No. 71363-9-I, slip op. at 1, 180 Wash. App. 1017 (Wash. Ct. App. 2014).
    77. Id. at *4.
    78. Town of Woodway v. Snohomish County, 322 P.3d 1219, 1221 (Wash. 2014). If the growth board had entered a finding of invalidity under RCW 36.70A.400(3)(b), the plan amendments would have had no further validity during the remand period, but since only a finding of noncompliance was made, the plans and regulations remain valid during a period following a finding of noncompliance. Id. at 1223-1224.
    79. Id. at 1222. One dissenting judge found that no principle of fundamental fairness applies where the actions of the county and developer are designed to circumvent the existing requirements of the GMA and SEPA because the record established that both the county and the developer likely knew their plan would not survive a challenge to the growth management hearings board. Id. at 1227. The dissent reasoned that the applicant needed no vested rights protection from the County during the pendency of its permits because there was no fluctuation of county legislation during that period of time. Id. at 1229.
    80. Miotke v. Spokane Cnty., 325 P.3d 434, 436 (Wash. Ct. App. 2014).
    81. Id.
    82. Id.
    83. Id. at 440.
    84. Id. at 440-442.
    85. 2014 WL 4649170 (N.J. Super. Ct. App. 2014).
    86. Id.
    87. Id. at *3. Similarly, cities may refuse to change comprehensive plans without fear of condemnation proceedings where property can still be put to economically beneficial use. See Ocean Palm Golf Club v. City of Flagler Beach, 139 So.3d 463, 474 (Fla. Dist. Ct. App. 2014).
    88. Wallach v. Town of Dryden, 16 N.E.3d 1188, 1191 (N.Y. 2014). The state mining law was only meant to regulate the actual operations of oil and gas activities, not zoning ordinances that restrict or prohibit certain land uses within town boundaries.
    89. Root v. Klamath Cnty., 320 P.3d 631, 638 (Or. Ct. App. 2014). Oregon’s Land Use Board of Appeals is subject to such strict review timelines that they do not permit the board to wait and see whether a final but conditionally effective plan amendment, will, in fact take effect, before reviewing a timely initiated appeal of the amendment. Id.
    90. See 1000 Friends of Oregon v. Land Cons. and Dev. Comm’n, 317 P.3d 927 (Or. Ct. App. 2014). In Ohio, a group of community members opposed to a development proposal attempted to amend the charter to require the city to adopt a new comprehensive plan, but the court denied the referendum because it was an unlawful delegation of legislative power. State ex rel. Eversible v. Powell, 21 N.E.3d 267, 267 (Ohio 2014).
    91. 15 N.E.3d 48 (Ind. Ct. App. 2014).
    92. Id. at 60.
    93. 326 P.3d 1229 (Or. Ct. App. 2014).
    94. Id. at 1232-33.
    95. Id. at 1234-36. “Plausible” is the very deferential standard used by Oregon courts in reviewing plan interpretations. Siporen v. City of Medford, 243 P.3d 776 (Or. 2010). A fairly similar level of deference is also given by Washington, as shown in Toward Responsible Development v. City of Black Diamond, No. 69418-9-1, 179 Wash. App. 1012 (Wash. Ct. App. 2014) in a review of the adequacy of an environmental impact statement that relied, in part, on city plan projections that there was sufficient zoned lands to meet employment targets.
    96. Id. at 1236. In Western Farm Products, Inc. v. Sumner County, 2014 WL 18522973, at *2 (Tenn. Ct. App., May 5, 2014), the court upheld the denial of a quarry in a “Rural” plan designation under the County’s 2005 Comprehensive Plan, noting that these areas were so designated as “having significant value for continued agricultural purposes and a rural way of life in the future” and promoting “predominantly rural and agricultural uses.”
    97. 327 P.3d 76, 87 (Wyo. 2014).
    98. Id.