Urban Lawyer

Recent Developments in Comprehensive Planning Law

by Edward J. Sullivan & Jennifer M. Bragar

Edward J. Sullivan earned his B.A. at 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; LL.M., University College, London, 1978; Diploma in Law, University College, Oxford, 1984.
Jennifer M. Bragar earned her B.A. at the University of California, Santa Cruz, 1998; J.D., Northwestern School of Law, Lewis and Clark College, 2007. The authors are indebted to Samantha Bayer, Lewis & Clark Law School, J.D. 2018, for the initial research in the preparation of this article.

I. Introduction

FOR MANY YEARS NOW, THE AMERICAN BAR ASSOCIATION SECTION ON STATE AND LOCAL GOVERNMENT HAS REPORTED ON THE RELATIONSHIP OF COMPREHENSIVE PLANNING to land use regulations and actions. It is fair to say that there has been an increasing role of the plan in assessing the validity of those regulations and actions. In making this assessment, this report has divided judicial decisions regarding this relationship into three categories: 1) where the plan is not recognized as an independent criterion, 2) where the plan is a factor of some kind in that evaluation, and 3) where the plan is a constitution-like document, requiring conformity or consistency by those regulations or actions.

Much of the conflict and confusion arose with the formulation in 1924-1928 of the Standard Zoning Enabling Act (SZEA)1 by a “blue ribbon” advisory committee to the United States Department of Commerce, when Herbert Hoover was its Secretary. Section 3 of that legislation, which was proposed (but not mandated) for state legislative action, required that the new regulatory tool of zoning be “in accordance with a comprehensive plan.”2 The SZEA was enacted by about three-quarters of the states and the issue of the validity of zoning under the “in accordance” language arose on occasion. The circumstances of these challenges occurred in the absence of any separate planning document or a conflict between that document and the zoning regulations.

The earlier cases “saved” zoning by reading out a requirement for a separate referent from the zoning regulations themselves.3 The zoning map became the comprehensive plan, and thus was always in accordance with itself. Courts were far more comfortable in applying substantive due process concepts to determine whether a challenged rezoning was “arbitrary and capricious” or had no “substantial relationship with the public health, safety, morals and general welfare” which focused on a judicial evaluation of local government conduct in the case than a review of the evaluation of policy applied to concrete circumstances. Previous reports have termed the view that there was no need for a separate planning document as the “unitary” view.

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