The Land Use Planning Process Demystified

Jesse J. Richardson, Jr.Associate Professor

Urban Affairs and PlanningVirginia Tech

jessej@vt.edu

Lands for TomorrowJune 26, 2011

Farmville, Virginia

Overview

• Growth and sprawl• Private land use controls• Local government authority• Private property rights v. the public good• Zoning/rezoning• Subdivision• Planning Commission• Public Participation• Conclusion

Growth and Sprawl not the same thing

• Growth is inevitable- depends upon birth rate, death rate, immigration rate, jobs, etc.

• Sprawl is not inevitable

Smart Growth?• Not “Slow Growth”, “Responsible Growth”, “No Growth”, “Pro

Growth”• We cannot control the amount or rate of development

What can we do?• Control where (on a small scale) development will occur• Control what the development will look like (within limits)

Growth Management v. Growth Control

• Growth management v. growth control• “Management” entails reasonable projections of growth and

implementing means of accommodating the expected growth (ie, PLANNING)

Private Land Use Controls-Nuisance

• Prior to zoning, private land owners would litigate complaints

• Nuisance prevents one landowner from using their land so as to “unreasonably” interfere with another’s “reasonable” use of their property

• Trespass prohibits physical invasions by another• Still exist, but are reactive, ad hoc; not policy

Private Land Use Controls-Home Owners Association

• Covenants and restrictions• Dues to maintain roads/common areas• Most widespread and important (?) form of land

use control today• Not subject to many constitutional protections• Purely private- local government does not enforce• If covenants and zoning conflict, most restrictive

provision applies

State and Local Government Authority

• Tenth Amendment to the United States Constitution: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”

• States have the lion’s share of authority in our federalist system of governance

• Police Power: power to regulate to protect the health, safety, welfare and morals of the citizens

State and Local Government Authority

• Tenth Amendment to the United States Constitution: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”

• States have the lion’s share of authority in our federalist system of governance

• Police Power: power to regulate to protect the health, safety, welfare and morals of the citizens

Local Government Authority

• All authority derives from the state:- state constitution- charters- enabling statutes

• Dillon’s RuleRule of Statutory Construction

Dillon’s RuleA local government possesses and can exercise the following powers and no others:

• First, those granted in express words; • Second, those necessarily or fairly implied in or

incident to the powers expressly granted; • Third, those essential to the declared objects and

purposes of the corporation, not simply convenient, but indispensable.

• Any fair, reasonable doubt concerning the existence of the power is resolved by the courts against the corporation, and the power is denied.”

Police Power is tempered by Private Property Rights- Regulatory Takings

5th Amendment of the United States Constitution: "…private property [shall not] be taken for public use, without just compensation"

Categorical Takings:

• Does the alleged taking compel the property owner to suffer a physical invasion of his property (or the equivalent)?

• Does the alleged taking deny the property owner of all or virtually all

economically beneficial or productive use of the land?- Nuisance Exception: Does the regulation simply make explicit what already inheres in the title itself, in the restrictions that the background principles of the state's law of nuisance already imposed on the landowner?

Penn Central Balancing Test

• Balance (a) the economic impact of the regulation on the land owner; (b) the land owner's investment backed expectations; and, (c) the character of the government activity.

• If (a) + (b) outweighs (c), then a taking has occurred. If (c) outweighs (a) and (b), then no taking has occurred.

Comprehensive Plan

• Required in Virginia• general in nature• forward-looking (20 years)• comprehensive; and,• well-grounded• Capital Improvement Plan (CIP)• Not a law, ordinance or regulation• Centerpiece of any land use planning effort

Zoning Ordinance• ONE way of implementing the comprehensive plan (along

with the subdivision ordinance, etc)• Divides the jurisdiction into different USE classifications-

single family residential, multi-family residential, commercial, agricultural, etc.)

• Euclid v. Amber Reality• Optional in Virginia (except for Chesapeake Bay localities/east

of 95)• 7 ½ counties in Southside and Southwest do not have zoning

Rezonings• Legislative v. quasi-judicial• General Rule

- presume that the ordinance is valid- plaintiff must make out a prima facie case that the rezoning is arbitrary and capricious- burden then shifts to local government to show that the rezoning is fairly debatable

Rezonings• Maryland Rule says that the rezoning is invalid unless one of

the following can be shown:- Fraud in the original ordinance;- Mistake in the original ordinance; or,- Change in physical circumunstances

• Virginia uses general rule for upzonings, Maryland Rule for downzonings

Conditional Zoning/Proffers• Proffers are Virginia’s version of conditional zoning• Landowner “voluntary” offers conditions in a request for a

rezoning• In most Virginia localities (“high growth”), the conditions can

include offers of cash• Some localities have “proffer schedules”- up to $80,000/lot• Differentiate “contract zoning”- “bargaining away the police

power”

Subdivision Ordinance

• Required in Virginia• Layout of lots/infrastructure• Administrative v. Legislative (as with zoning)

Planning Commission

• Planning Commission is a citizen advisory board to the governing body

• 5-15 members appointed by the governing body• The planning commission develops the draft

comprehensive plan and presents it to the governing body

• Commission RECOMMENDS denial or approval of rezonings, etc. and sends to the governing body for decision

Public Participation

• Public participation is an important part of land use planning

• Lots of opportunity for input• Unfortunately, citizens generally do not show up

unless the issue is in their “back yard” (or it involves a Walmart, wind turbines, biosolids, etc.)

• However, the majority does not rule- constitutional checks and balances- “tyranny of the majority”

Conclusions

• Land use planning process is ideally a participatory, proactive process

• Planning commission advises and assists the governing body, who makes most of the decisions

• Balance between private property rights and public good