II. The Unitary View
A recent Connecticut appellate case, Verillo v. Zoning Board of Appeals of the Town of Branford,6 exemplifies the Unitary View, which does not require or use a separate comprehensive plan by which to assess the validity of zoning regulation, but refers instead exclusively to zoning regulations to do so.7 In Verillo, an applicant appealed the denial of a variance to the zoning regulations. Because the regulations themselves prohibited the dimensional changes, there was no authority to allow a variance.8
In a Maryland case, County Council of Prince George’s County v. Zimmer Development Co.,9 the court went to some length to distinguish planning and zoning, but concluded that land use proposals in a plan are a “non-binding advisory recommendation” unless another ordinance makes them binding.10
The most important case decided over the period covered by this Article was Apple Group, Ltd. v Granger Township Board of Zoning Appeals,11 which, over a dissent,12 found the “in accordance with a comprehensive plan” language derived from the Standard Zoning Enabling Act to refer to the zoning ordinance and map, rather than to a separate comprehensive plan.13
In an Oregon case, Lake Oswego Preservation Society v. City of Lake Oswego,14 the court considered a statute15 that purports to give a landowner “opt out” authority from historic review protections found in the local plan and zoning regulations by filing an objection at the time of designation, or thereafter. The court upheld a broad interpretation of the statute to include both the landowner at the time of the designation and any succeeding landowner, each of who may validly object to the designation.16
In a Pennsylvania case, In re Bartkowski Investment Group, Inc.,17 the court considered a statute18 that allowed a court to override a local government decision that “unlawfully prevents or restricts” a development or use.19 In this case, the court could order the use, or provide other relief, notwithstanding plan incompatibility.
In conclusion, it appears that most of the cases in which the plan is not a factor arise out of some legislative or judicial exemption from plan effectiveness, rather than, as in the past, a construction that the “in accordance” language refers to the zoning ordinance. That said, the Granger Township case is a powerful reminder of the lingering in- fluence of an historical interpretation of that language.
III. The Plan as a Factor in the Validity of Land Use Regulations or Actions
For many years now, the trend in cases relating to the significance of the comprehensive plan is that in which the plan is at least a factor or consideration in a judicial analysis. This past year has seen a similar trend.
In Dockter v. Burleigh County Board of County Commissioners, the Supreme Court of North Dakota affirmed a zone change from agriculture to industrial, upholding the County Commission’s findings of consistency with the comprehensive plan.20 In North Dakota, the comprehensive plan, when read as a whole, serves to guide decision makers in their exercise of discretion in adopting zoning ordinances.21 Thus, in Dockter, where plan goals include encouraging industry to be located close to transportation facilities, and that quality of growth in industry should be supported, the Board of Commissioners’ findings in terms of meeting those goals were found well-within the discretion of the board and supported by substantial evidence in the record.22
In Newton v. Monroe County, a county denied extension of electric service by a municipal utility to No Name Key because the extension was prohibited by the county’s comprehensive plan, and land development regulations designed to limit development and protect the environment.23 Although the residents of another Key, Big Pine Key, had obtained electric service, the court denied the plaintiff ’s equal protection claim because the Big Pine Key residents obtained electric service prior to the county’s enactment of the current comprehensive plan policies and related regulations.24
In a conditional rezoning of historic property in Portland, Maine, the comprehensive plan was a factor in allowing commercial uses within a residential neighborhood where consistency with the plan was determined by viewing the plan as a whole.25
Thus, in these states, comprehensive plans are typically viewed as a whole and can be used by decision makers to sway the analysis of land use applications towards either approval or denial.
IV. The Plan as an Impermanent Constitution
For those states that have ascribed quasi-constitutional status to comprehensive plans, the judicial analysis of cases involving application of the plan to ordinances or actions results in closer scrutiny to assure consistency or conformity.
In Banning Ranch Conservancy v. City of Newport Beach,26 the California Court of Appeal rejected plaintiffs’ contention that defendant city violated its own general (comprehensive) plan by approving the challenged residential and commercial development before identifying whether wetlands and habitats on the site would be preserved, restored, or developed.27 The court stressed its obligation to defer to the city’s construction of the plan and determined its consistency determination was “reasonable.”28
In Florida, a trial court’s grant of summary judgment for a plaintiff landowner in a contested determination of plan consistency by a county to allow mining29 was reversed in the face of conflicting affidavits of professional planners for the parties.30
On the other hand, a New Jersey court in Griepenburg v. Township of Ocean,31 upheld a revised zoning designation to a large, privately owned tract pursuant to the township's comprehensive “smart growth” development plan,32 which in turn supported state plans for environ- mentally sensitive areas.33
Finally, in Woods View II, LLC v. Kitsap County,34 a tort claim case that alleged, inter alia, that the defendant county interfered with plaintiff ’s development, in that the sewer system proposed to serve the development inappropriately allowed for urban services outside an urban growth area in violation of its comprehensive plan. However, the plan was found to be “rational” and thus not a source of liability.35
To conclude, in those states where the plan is a separate and legally binding document, the courts will often defer to the construction of that policy by the local government. In such contexts, words matter.
V. Plan Adoptions and Amendments
It should not be surprising that there is a correlation between states where the case law categorizes the plan as a quasi-constitutional document and cases where there is litigation over the adoption or amendment of a plan. If a plan is a meaningful legal document, its adoption or change will have significant land use consequences, as the cases for the past year demonstrate.
Florida has had a number of cases in this area. In a federal district court case, Dibbs v. Hillsborough County,36 a pro se litigant made sweeping constitutional and statutory claims against a community plan (a subset of a county-wide comprehensive plan) adopted in 2001, claiming it was written by Not-In-My-Backyard proponents and was “ridiculous.”37 While plaintiff desired the area in which he owned property to be urban, the court upheld the county’s rural designation and rejected challenges to regulations that plaintiff alleged to be unfair.38
Case law from Florida and elsewhere appears to demonstrate that broad, unfocused constitutional challenges are likely to fail. More likely to succeed are challenges based on failure to meet procedural39 or substantive40 standards for adoption or amendment. If the plan is legally significant, its adoption or amendment provides grounds for inverse condemnation claims.41
Elsewhere, a Maryland case shows that a plan amendment is not required to contain data to support the general goals, policies, and recommendations of the plan.42 Two federal cases in Oregon required a final decision on plan amendments before constitutional claims may be heard.43 A Washington case involving a local government’s failure to act on a statutory mandate to adopt or amend a plan found there was no statute of limitations on a challenge to that failure.44
VI. Interpretations of Plans
As plans become more significant, their interpretation becomes more important, as the following cases demonstrate.
A New Jersey case involved the governing body’s authority to adopt a zoning ordinance, and its conformity with the municipality’s master plan.45 The plaintiffs sought to change the zoning to bring their non- conforming homes into permitted use status.46 However, the zoning board has discretion whether to act on a reexamination proposal for the city’s zoning.47 While the refusal to adopt the proposed zoning would lead to some inconsistency with the overall master plan, the state's Municipal Land Use Act requires only substantial consistency with findings to support the claimed consistency.48
In Delta Property Co. v. Lane County, the Oregon Court of Appeals deferred to the county’s interpretation of its own plan to analyze whether a gravel mine was included in the county’s inventory of mining sites.49 The Delta property lies within a geographic area covered by the Metro Plan, but at the same time, was subject to the county’s land use code, which required the mine site to appear in the Rural Plan’s inventory.50 Delta’s land did not lie within the area covered by the Rural Plan.51 Nonetheless, the court deferred to the county’s plausible interpretation that it was more stringently limiting mining uses in the area covered by the Metro Plan than areas further away from urban growth boundaries that were listed on the Rural Plan’s inventory.52 The court also determined that the county was entitled to deference in its interpretation of the Metro Plan, despite the plan being a joint effort of three jurisdictions.53 Namely, the court found that the county’s board of commissioners was accountable to the electorate of the two other local governments that adopted the Metro Plan.54 This conclusion was further bolstered by the fact that the county alone was charged with deciding land use applications of the kind at issue in this case.
An unpublished decision from Washington involved a citizen’s attempt to avoid code enforcement liability based on an argument that the city’s enforcement was in conflict with the city’s comprehensive plan.55 In City of Bonney Lake v. Kanany, the court found no inconsistency with the plan.56 Although the plan policies allowed accessory dwelling units (ADUs) in all residential zones, the plan did not suggest that ADUs must be allowed in every situation in those zones.57
VII. Conclusion
The cases decided during this period show an increasing regard for the comprehensive plan. There are few cases in which the plan is encompassed in the zoning ordinance, but often there is some reason, statutory or otherwise, for not applying the same. The category of cases where the plan is seen as a quasi-constitutional document appears to be holding steady, while there is an increase in the “broad middle” of cases where the plan is a factor in the evaluation of land use regulations and actions. Similarly, there is an increase in the number of cases involving plan amendments and interpretations, an indicator of growing judicial respect for plans and planners. For planning law, this is a heartening result.