Agenda - Planning Commission - 09/03/1996

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whether a formal comprehensive plan was a necessary condition precedent to the adoption ora valid zoning ordinance. It evaluated Wisconsin's statutory scheme for city planning 0vVis. Stat. Sec. 62.23.), wh!ch required that zoning regulations be "in accordance with a comprehensive plan," but left the term undefined. The city a~gued that the requirement could be met by enacting a comprehensive zoning ordinance and that the statute did not require a separate document. The landowners contended that a zoning ordinance does not qualify as a comprehensive plan and that a separate document must be prepared and adopted before a city may enact an ordinance. Because the statute was silent on the term's meaning, the court evaluated whether a separate document was required in addition to the ordinance. It determined that the majority view held by courts and commentators is that a zgning ordinance may satisfy the requirement when the state enabling legislation does not expressly provide otherwise. On the other hand,~a minority of states impose more stringent requirements that all zoning and land-use regulation must be done in accordance with an independently identifiable plan. This must be a separate planning document, and zoning decisions must be consistent with the planning goals and policies it contains. (See, for example, Cal. Gov't Code Sec. 65300; Idaho Code Sec. 67-6511; and Ky. Rev. Stat. Ann. Secs. 100.183, 100.187(2), 100.191,100.20I, 100.213.) The adoption ora formal comprehensive plan is a condition precedent to the enactment of local zoning regulations. In addition, these states often require that all zoning decisions be in strict conformity with the mandatory comprehensive planning document. Consistency with Comprehensive Plan X,Vhether a particular zoning action has been done in accordance with a comprehensive plan, however that is defined, depends on the extent to which the state requires consistency with the plan. In most states, strict conformity is not mandatory because the plan is considered only a guide to rational zoning decision making. In a minority of states, however, strict consistency is mandatory. A determination of consistency will likely depend on how detailed the comprehensive plan is. The more generalized the language used to set out planning goals in the comprehensive plan, the more difficult it will be for a challenger to show a conflict between the plan and the zoning action. Where the Plan Is Only a Guide In most states where no separate planning document is required, the consistency requirement is met if the zoning body "gave full consideration to the problem presented, including the needs of the public, changing conditions, and the similarity of other [and in the same area." (Montg~omery v. Bremer County Board of Supervisors, 299 N.W.2d 687, 695 (Iowa 1980).) This generic standard applies when a local zoning authority either has no individualized comprehensive plan or has not reduced it to writing. The comprehensive plan is considered only advisory in nature. (See Smith v. City of Little Rock, 648 S.W.2d 454 (Ark. 1983); Manning v. Boswn Redevelo?ment Authority, 509 N.E.2d 1173 (Mass. 1987).) However, if the local zoning body chooses to develop a comprehensive plan as a separate written document, subsequent Mark Dennison is an attorr~ey and author who practices environmental, land-use, and zoning law in Westwood, N.J. zoning actions must be undertaken with the comprehensive plan in mind. (See Amcon Corp. v. City ofF, agan, 348 N.W.2d 66 (Minn. 1984); City ofPharr v. Tippett, 616 S.W. 2d 173 (Tex. 1981).) Still, the prevailing view in these states is that, notwithstanding the adoption of a distinct comprehensive planning document, the plan remains primarily a guide to zoning decisions. (See Smith v. Winhall Planning Commission, 436 A.2d 760 (Vt. 1981); WestIfall Citizens for Controlled Development Density v. King County Counci~ 627 P.2d 1002 OX/ash. App. 1981).) Strict consistency is not required, but the plan's recommendations should be considered. (See Haines v. City of Phoenix, 727 P.2d 339 (Ariz. 1986); Taco Belly. City of Mission, 678 P.2d 133 (Kan. 1984).) For example, in Bone v. City of Lewiston, 693 P.2d 1046 (Idaho 1984), the court decided that in accordance does not mean that a zoning ordinance must be exactly as the comprehensive plan shows it to be. Rather, whether a zoning ordinance is in accordance with the comprehensive plan is a question of fact. Thus, a governing body charged to zone in accordance with its comprehensive plan must make a factual inquiry to determine whether the requested zoning ordinance or amendment reflects the goals or--and takes into account those factors in--the comprehensive plan in light of the later factual circumstances surrounding the request. On the other hand, some courts have placed more emphasis on consistency in situations where a separate comprehensive planning document has been adopted. For example, in Webb v. Giltner, 468 N.W. 2d 838 (Iowa App. 1991), 15 landowners challenged the county's approval of a rezoning application changing the classification of a neighboring landowner's property from residential to commercial. The plaintiffs, all owners of land in the same residential use district, contested the county's action on grounds that the rezoning was not in accordance with the county's comprehensive plan. After considerable study, the county had enacted The Comprehensive Plan for the Unincorporated Area of Wapello County, Iowa. The court cbncluded that the county board of supervisors had ignored its own comprehensive plan when approving the rezoning request. The court ruled that, because the county had chosen to adopt a written plan, all subsequent zoning decisions had to be in accordance with it. The court stated: Where a county has enacted a written comprehensive plan, we hold the requirement of Iowa Code section 358A. 5 (that zoning be 'in accordance with a comprehensive plan') contemplates the zoning ordinance will be designed to promote the goals of that individualized plan. The board did not consider the plan. Nor does the board argue that the rezoning.., is in accordance with the plan. Because the board failed to consider its own enacted comprehensive plan, our review of whether the rezoning decision was designed to further the goals of that plan would be pointless. Strict Conformity Required Those states with legislation mandating the preparation and adoption of a separate written plan will in most cases also require that ali zoning decisions conform strictly with that plan. States with a strict consistency doctrine do not permit local zoning authorities to enact zoning ordinances, adopt zoning amendments, or make decisions unless their actions are in strict accordance with the requirements set forth in the comprehensive plan. If changing population growth, development patterns, community needs, or other public welfare concerns later necessitate a deviation from the plan, the /,gq