Recent Developments in Comprehensive Planning

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; 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 Annie Szvetecz, Lewis & Clark Law School, J.D. 2015, for the initial research in the preparation of this article.

I.  Introduction

As it has for many years, this annual article catalogues the role of the comprehensive plan in land use regulation — in this case for the period from October 1, 2014 through September 30, 2015. One way of viewing that relationship is to consider the importance of the comprehensive plan with regard to regulation. The authors find that there are three broad categories into which cases involving that relationship fit. The first is the “unitary view,” a rejection of the plan (or other external reference point) as a separate standard for regulation, a position that was once the majority rule. A second category (which may now be the majority view) finds the plan one measure, to a greater or lesser extent, of the validity of a land use regulation or action. A final category views the plan as a quasi-constitutional document that controls regulatory activity. Following a discussion of these categories, this article then examines cases dealing with plan amendments and interpretations of plans over this one-year period.

Much of the controversy over the role of the plan originates with the Standard Zoning Enabling Act,¹ which appeared in final form in 1926 as suggested enabling legislation by a federal advisory committee, and was adopted by approximately three-quarters of the states at one time. Section 3 of the Standard State Zoning Enabling Act required that zoning be “in accordance with a comprehensive plan.”² Cases interpreting Section 3 arose over both the nature and necessity for a comprehensive plan. Courts almost uniformly ignored or blunted the words of Section 3 and found the “comprehensive plan” requirement fulfilled by the zoning regulations and map, thus avoiding invalidation of a zoning regulations or actions through interpretive prestidigitation.³

In an oft-cited law review article, “In Accordance with a Comprehensive Plan,” Professor Charles Haar rejected this view and suggested the plan had an independent existence and role with respect to land use regulation.⁴ Later, Professor Daniel Mandelker authored an article, “The Role of the Comprehensive Plan in the Zoning Process,” to reach a similar conclusion.⁵ This recent developments article utilizes the work of these land use pioneers to assess statutory provisions and case law regarding the role of the comprehensive plan in land use regulation and nuances over the amendment of plans and their interpretation.