The notion that the “in accordance” language was meaningless surplusage did not escape scholarly criticism. In a 1955 article, Professor Charles Haar called for recognition of a separate comprehensive plan to be used in evaluating land use regulations and actions.4 In 1976, Professor Daniel Mandelker made a similarly compelling case in another scholarly article.5
Among other states, California6 and Hawai’i7 enacted statutes that specifically provided for a planning document separate from zoning or other land use regulations and provided as well for consistency of those regulations with the plan. As a result, plan consistency or conformity became a separate manner of reviewing the relationship of the plan with land use regulations and actions. Other states, which had adopted the SZEA or similar legislation, departed from the notion that the comprehensive plan requirement was satisfied in the zoning regulations and found that a plan, if it existed, had some significance in the evaluation of validity for land use regulations and actions. This article continues that evaluation by looking at cases on the comprehensive plan decided over the past year.
II. The Unitary View
In Benson v. Knox County, a zone change for 112 acres from Agriculture to Planned-Residential was affirmed by the Tennessee Court of Appeals.8 The opposition challenged whether the county had complied with state law that required that land use decisions made by the legislative body after adoption of a general regional plan must be consistent with the plan.9 They also raised concerns about the treatment of access, and the inclusion of sloped lands in the buildable lands calculation required under the plan policies.10 The court found that there was consistency with the general plan because a landlocked parcel is entitled to a condemnation proceeding to provide access to a public road, and the plan policies for development on sloped properties are only advisory in nature.11 The court concluded that the local decision was consistent with the general plan, and therefore, in compliance with state law.12
As in years past, Connecticut leads the way in cases supporting a “Unitary View” that does not require or use a separate plan, but refers exclusively to zoning regulations as evidence of the plan.13 In Weed v. Town of New Canaan, a variance was affirmed because a variance that does not substantially affect the comprehensive plan, which is stated in the zoning regulations themselves and does not cause unusual hardship unnecessary to the carrying out of the general purpose of the zoning plan, is allowed.14
A Vermont court upheld changes to a municipality’s zoning bylaws where municipalities have broad authority to regulate land development in any manner established by those bylaws.15 The court determined that although a general plan may recommend many desirable approaches to municipal development, only those provisions incorporated in the bylaws are legally enforceable.16
In Louisiana, the appellate court considered an injunction to halt permits under a zoning ordinance that a neighborhood believed to be out of compliance with due process procedures.17 Although unsuccessful in the injunction phase, the court signaled that the case would likely succeed on the merits. Only through the public hearing process before the planning commission could the City of New Orleans show that the regulations complied with state law requiring that amendments to regulations in the zoning code be made in accordance with the comprehensive plan.18
In conclusion, it appears that most of the cases in which the plan is not a factor arise out of, as in the past, a construction that the “in accordance” language refers to the zoning ordinance. The Benson case is a powerful reminder of the pull of an historical interpretation of that language that is still influential, even when state law requires consistency with the plan.
III. Planning Factor Cases
Those cases in which the plan is a factor in land use decisions comprise the largest block of decisions over the past year, running the gamut of circumstances. In an unreported Illinois case, Hanlon v. Village of Clarendon Hills,19 the Illinois Court of Appeals upheld a planned unit development grant under its multi-factor test against a claim that the Village had acted arbitrarily and unreasonably by repeated citations to the policies of the Village’s Master Plan.20
In an unreported Kentucky case, Huxol v. Davies County Fiscal Court,21 neighbors challenged the rezoning of agricultural land to accommodate coal mining. The appellate court affirmed the grant of the rezoning as in accord with the local comprehensive plan, but added that the use need not conform to everything contained in the plan.22
In an interesting Louisiana federal district court case, Petroplex International v. St. James Parish,23 Plaintiff challenged Defendant County’s omission of “tank farms” from the zoning ordinance it crafted via its draft comprehensive plan. Plaintiffs alleged a violation of state law inter alia by Defendant relying on a master plan to implement a jurisdiction-wide zoning ordinance. In granting summary judgment to Defendant County, the court added:
Though Plaintiffs may disagree with Defendants’ response to the facts outlined in the comprehensive plan, the Court cannot find that this response was devoid of any conceivable rational basis. Plaintiffs’ [sic] argue that the Land Use Ordinance is arbitrary and capricious because it violates state law; however, this is precisely the type of challenge that this Court may not consider in federal constitutional analysis. Accordingly, Plaintiffs’ claims challenging the validity of the Land Use Ordinance based on federal substantive due process provisions are dismissed with prejudice. [Footnote omitted]24
In a Mississippi case involving a rezoning denial, Little v. City of Ocean Springs,25 the court affirmed notwithstanding a claim of plan conformity, as the overall decision was “fairly debatable.”26 A similar deference to local findings occurred in Davidson County Broadcasting Company, Inc. v. Iredell County,27 where the denial of a special use permit for a broadcasting tower was affirmed. The local regulations required, inter alia, that the proposed use be “in harmony with the area in which it is located” and in “general conformity” with the county land use and developmental plan. Plaintiff argued that listing of the use as a potential special exception demonstrated that the “harmony” standard was met and the plan was irrelevant to that issue.28 The court concluded the plan was an advisory instrument to be consulted in special use proceedings and could be a basis for denial.29
A recent Rhode Island appellate case, Kenlin Properties, LLC v. City of East Providence, involved the appeal of an enforcement order for violation of a use variance.30 In determining that the zoning board of review had authority to consider a range of evidence in the public record approving the variance, the court ruled that the zoning board may apply conditions to promote the intent and purposes of the comprehensive plan and zoning ordinance because a use variance is inimical to a comprehensive zoning regime.31 The variance allows a real estate owner to use his or her property in a manner otherwise prohibited by the zoning regulations and is a constitutional safeguard to prevent confiscation of one’s property.32
Finally, a Vermont case, In re Waterfront Park Act 250 Amendment,33 involved neighbor’s objections to a City of Burlington proposal to amend its state planning permit for a public park so as to increase its use activities consistent with its “PlanBTV” which set a policy of maximizing the use of parks under certain conditions. The District Environmental Commission, which administers portions of that state’s environmental and planning regulations, applied factors including the furtherance of the goals and objectives of duly adopted municipal plans and affirmed the City’s actions.34
IV. The Plan as an Impermanent Constitution
In Washington, a case that has been in litigation since 2001 once again reached the appellate level, where the court ruled that designation of agricultural lands of long-t erm commercial significance (or agricultural resource lands, “ARL”) was once again flawed.35 The court concluded that the criteria for designating lands, including a point system, was consistent with Ferry County’s comprehensive plan and the state’s Growth Management Act (GMA), but that the designation of ARL was inconsistent with those criteria.36
Opponents to the designation complained that awarding zero points to parcels one quarter mile or less from areas of intense rural development failed to implement the comprehensive plan.37 But the court determined that even if no points were awarded under this criterion, the system does not prevent a parcel from being designated under the remaining criteria.38 In addition, a 500-acre minimum block size was found consistent with the comprehensive plan because it was the minimum block that would prevent scattered agricultural lands.39
Nonetheless, the court ruled that the county designated too few acres as ARL and failed to comply with the goals and purposes of the comprehensive plan and GMA. The comprehensive plan adopted goals and policies consistent with the state mandate to maintain and enhance agricultural industries, and emphasized the county’s need to maintain a critical mass of ARL for present and future use.40 The county’s failure to designate any of the over 2,816 acres that qualified as ARL under the points system violated the comprehensive plan goals by failing to provide sufficient “critical mass” to assure the viability of the agricultural industry over the long term.41 The court warned that adding the 2,816 acres ARL designated lands may still not comply with the GMA and the case is likely to continue through another iteration.42
In Florida, an appellate court reversed and remanded the approval of the Florida State Siting Board to allow construction and operation of two nuclear generating units because the decision was inconsistent with the local comprehensive plan and land development regulations.43 The Siting Board incorrectly concluded that local regulations did not apply when the state energy siting criteria explicitly require consistency with local land use regulations.44 In a Washington D.C. case a planned unit development was considered for a third time after a second remand for inadequate findings.45 The court explained that it will generally defer to a commission’s interpretation of the zoning regulations and their relationship to the comprehensive plan, unless the interpretation is unreasonable or contrary to the applicable provisions.46 Surprisingly, the court set-aside the decision and denied the application because the commission had failed to justify a conclusion that the resulting development would be a moderate-density use and a third remand was not requested by the parties.47
V. Plan Adoption 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. In addition, a surprising case out of Ohio highlights that controversy over plan amendments arise even where the plan is not given as much reverence.
A Florida appellate court considered the tension between the state’s Bert Harris Act, which offers compensation to property owners when an existing use of the owner’s property or a vested right to a specific use of real property is “inordinately burdened” by a new governmental regulation, and the state’s Growth Management Act (“GMA”), which mandates the adoption of local comprehensive plans.48 The court held that settlement agreements under the Bert Harris Act that would effectively act as amendments to the comprehensive plan are required to ensure that the public interests served by the GMA are still protected.49 Bert Harris Act settlement agreements must be confirmed by a circuit court.50 The court cautioned that there may be cases where the public interests protected by the GMA can only be protected with a circuit court order that requires the local government to process a comprehensive plan amendment through the ordinary process, before implementation of a settlement agreement.51
In Washington, comprehensive plan amendments are presumed valid upon adoption.52 However, where amendments would allow multi-family housing in close proximity to the Fairchild Air Force Base, the plaintiffs were able to overcome that presumption because the ordinances adopted by the City were in conflict with the statutory requirements that development not be incompatible with the military installation’s ability to carry out its mission requirements and future mission needs.53
In The Center for Powell Crossing, LLC v. City of Powell, Ohio residents took to the initiative process to adopt charter amendments that required a commission of five private citizens to draft a new comprehensive development plan that, at a minimum, would prohibit highdensity housing in the downtown business district and would prohibit a mixed use development already approved by City Council.54 The applicant for the prohibited development brought suit in U.S. District Court and obtained a permanent injunction against the enforcement of the charter amendments because the amendments violated its due process as to one of its state constitutional claims.55
The court concluded that the charter amendments resulted in an unlawful delegation of legislative authority by appointing a private citizen group to draft and recommend approval of a new comprehensive plan without discernible standards to guide the private parties’ discretion.56 While the court recognized that, in Ohio, the term “comprehensive plan” sometimes refers to a non-binding, general set of objectives for future development, here the charter amendments mandates that the private citizen plan ultimately be “legislatively adopted” by City Council and that all zoning ordinances must comply with the new plan.57 Thus, the new plan carries the binding effect of law.58 Ultimately, the court ruled that the offending delegation of legislative authority could be severed from the charter amendments and the remainder of the amendment saved.59 The result was removal of the requirement for a new comprehensive plan, but the court upheld the prohibition of high-density housing on the applicant’s parcel finding that the electorate’s intent was clear that no apartments be allowed on the subject property.60
VI. Plan Interpretation
Both cases relating to plan interpretation are unreported, but intriguing. In Williams v. Oldham County Board of Adjustments and Appeals,61 plaintiff appealed from the denial of a conditional use permit for a wildlife rehabilitation facility on property zoned for agricultural and conservation uses. They sought to take advantage of a statute62 that allowed for the issuance of such a permit for a use not specifically listed. The County Ordinance required, inter alia, that the use not be in conflict with the elements and objectives of its comprehensive plan.63 Plaintiffs cited plan policies that promoted and protected wildlife habitat, but the court noted the subject area was residential in character and concluded:
[W]hile the Williams are technically correct that wildlife rehabilitation is not in direct conflict with the intent of the comprehensive plan, it is neither compatible with the surrounding land uses nor general character of the area, namely a residential development.64
The court upheld the denial and the County’s determination that granting the request would not be consistent with the general direction of the local plan.
In 121 Varick Street Corp. v. Board of Standards and Appeals,65 Plaintiff appealed the revocation of a sign permit because such signs were prohibited within a certain distance of an arterial highway. Plaintiff claimed the subject site, an approach to the Holland Tunnel, was not designated on the City’s Master Plan of Arterial Highways and Principle Streets and thus the prohibition could not apply. The Court found the Master Plan was “macroscopic and schematic in nature” and Defendant reasonably found that the tunnel approach was contained on the plan designation for the Holland Tunnel on the plan map.66
As in recent years, the cases that had previously adhered to the unitary view now appear to be moving in the direction of determining that the plan is at least a factor in the validity of land use regulations and actions. Indeed, the third alternative, that of finding the plan to be a quasi-constitutional document largely by legislative action, provides the second largest number of cases during this period. As the plan grows in importance, more judicial attention is now given to the process and standards by which plan amendments are undertaken, as well as in the interpretation of plans. All of this bodes well for the direction of planning law towards rationality.