by Gary Taylor
The second major section of the smart planning legislation addresses city and county comprehensive planning. For the first time we will have state legislative guidance on the elements that should be contained in a comprehensive plan, and the detail to which these elements should be addressed. Iowa was one of the few states in the nation neither to adopt the Standard City Planning Enabling Act (SCPEA) promulgated by the U.S. Department of Commerce in the 1920s, nor any other planning enabling legislation. The SCPEA was meant to be a companion piece to the Standard State Zoning Enabling Act (SSZEA), also put forth in the 1920s. The state of Iowa did adopt the SSZEA for cities in 1923, for counties over 60,000 population in 1947, and for the remaining counties in 1955.
The failure of the state to adopt comprehensive planning legislation up to this point has been significant from the perspective of the Iowa courts. The zoning enabling acts for both cities and counties require that zoning regulations “be in accordance with a comprehensive plan.” Absent any enabling legislation for comprehensive planning, or definition of a comprehensive plan, the Iowa courts have been reluctant to give the comprehensive plan any meaningful legal standing when zoning decisions are challenged. The Iowa Supreme Court has stated that a separate document called a “comprehensive plan” is not required for a city or county to adopt zoning regulations (See Montgomery v. Bremer County, 299 NW2d 687; Wolf v. City of Ely, 493 NW2d 846). In recent years the courts have recognized that the policies in the plan should be a consideration when making zoning decisions; but as recently as last fall the Iowa Court of Appeals affirmed a board of supervisors decision that essentially disregarded the comprehensive plan.
The legislation makes it clear that it is not now mandatory for cities or counties to develop comprehensive plans. It says that cities and counties “shall consider the smart planning principles under section 18B.1 [see previous blogpost] and may include the following information, if applicable when developing or amending a comprehensive plan under Chapter 335 or chapter 414 or when developing or amending other local land development regulations.” The bill then presents a list of thirteen comprehensive plan elements which are set forth below. What will be the legal status of the comprehensive plan if and when the Smart Planning legislation is signed into law by the Governor? In my opinion it is unlikely that the Iowa courts will change course and now state that a comprehensive plan is a necessary prerequisite for a city or county to adopt a zoning ordinance. I believe it would take a clear legislative statement of that intent for the courts to overturn 25+ years of caselaw to the contrary, and I don’t read that in this bill. I do think, however, it gives the courts an opportunity to draw a stronger link between the comprehensive plan and zoning decisions. In other states, zoning decisions that are consistent with the community’s comprehensive plan are given a “presumption of validity,” which is firmer legal ground than being a “consideration” in the decision-making process. Of course, the reverse is also true in those states – a local government zoning decision that is inconsistent with the comprehensive plan is subject to greater scrutiny when challenged in court.
The section of the legislation includes two other items worth mention. First, it requires metropolitan and regional planning commissions under Chapter 28I of the Iowa Code to consider the smart planning principles when preparing metropolitan and regional plans. This could have a significant influence on metropolitan planning because the principles do incorporate many of the tenets of Smart Growth as it has come to be understood. Second, it explicitly sets forth a process whereby city and county planning commissions may recommend the comprehensive plan to the elected local officials (city councils and county boards of supervisors), and then gives the elected officials the option of adopting the comprehensive plan. This is the process that historically has been followed in many communities. Enacting it into law simply solidifies the practice.
18B.2 Local comprehensive planning and development guidelines.
1. For the purposes of this chapter, unless the context otherwise requires:
a. (1) “Development” means any of the following:
(a) Construction, reconstruction, renovation, mining, extraction, dredging, filling, excavation, or drilling activity or operation.
(b) Man-made changes in the use or appearance of any structure or in the land itself.
(c) The division or subdivision of land.
(d) Any change in the intensity of use or the use of land.
(2) “Development” does not include any of the following:
(a) Activities on or uses of agricultural land, farm houses, or agricultural buildings or structures, unless such buildings or structures are located in the flood plain of a river or stream.
(b) Installation, operation, and maintenance of soil and water conservation practices.
(c) The choice of crops or a change in the choice of crops on agricultural land.
b. “Land development regulations” means zoning, subdivision, site plan, corridor map, floodplain or storm water ordinances, rules, or regulations, or other governmental controls that affect the use of property.
c. “Municipality” means a city or a county.
2. A municipality shall consider the smart planning principles under section 18B.1 and may include the following information, if applicable, when developing or amending a comprehensive plan under chapter 335 or chapter 414 or when developing or amending other local land development regulations:
a. Information relating to public participation during the creation of the comprehensive plan or land development regulations, including documentation of the public participation process, a compilation of objectives, policies, and goals identified in the public comment received, and identification of the groups or individuals comprising any work groups or committees that were created to assist the planning and zoning commission or other appropriate decision=making body of the municipality.
b. Information relating to the primary characteristics of the municipality and a description of how each of those characteristics impacts future development of the municipality. Such information may include historical information about the municipality, the municipality’s geography, natural resources, natural hazards, population, demographics, types of employers and industry, labor force, political and community institutions, housing, transportation, educational resources, and cultural and recreational resources. The comprehensive plan or land development regulations may also identify characteristics and community aesthetics that are important to future development of the municipality.
c. Objectives, information, and programs that identify current land uses within the municipality and that guide the future development and redevelopment of property, consistent with the municipality’s characteristics identified under paragraph “b”. The comprehensive plan or land development regulations may include information on the amount, type, intensity, and density of existing land use, trends in the market price of land used for specific purposes, and plans for future land use throughout the municipality. The comprehensive plan or land development regulations may identify and include information on property that has the possibility for redevelopment, a map of existing and potential land use and land use conflicts, information and maps relating to the current and future provision of utilities within the municipality, information and maps that identify the current and future boundaries for areas reserved for soil conservation, water supply conservation, flood control, and surface water drainage and removal. Information provided under this paragraph may also include an analysis of the current and potential impacts on local watersheds and air quality.
d. Objectives, policies, and programs to further the vitality and character of established residential neighborhoods and new residential neighborhoods and plans to ensure an adequate housing supply that meets both the existing and forecasted housing demand. The comprehensive plan or land development regulations may include an inventory and analysis of the local housing stock and may include specific information such as age, condition, type, market value, occupancy, and historical characteristics of all the housing within the municipality. The comprehensive plan or land development regulations may identify specific policies and programs that promote the development of new housing and maintenance or rehabilitation of existing housing and that provide a range of housing choices that meet the needs of the residents of the municipality.
e. Objectives, policies, and programs to guide future development of sanitary sewer service, storm water management, water supply, solid waste disposal, wastewater treatment technologies, recycling facilities, and telecommunications facilities. The comprehensive plan or land development regulations may include estimates regarding future demand for such utility services.
f. Objectives, policies, and programs to guide the future development of a safe, convenient, efficient, and economical transportation system. Plans for such a transportation system may be coordinated with state and regional transportation plans and take into consideration the need for diverse modes of transportation, accessibility, improved air quality, and interconnectivity of the various modes of transportation.
g. Objectives, policies, and programs to promote the stabilization, retention, or expansion of economic development and employment opportunities. The comprehensive plan or land development regulations may include an analysis of current industries and economic activity and identify economic growth goals for the municipality. The comprehensive plan or land development regulations may also identify locations for future brownfield or grayfield development.
h. Objectives, policies, and programs addressing preservation and protection of agricultural and natural resources.
i. Objectives, policies, and programs to assist future development of educational facilities, cemeteries, health care facilities, child care facilities, law enforcement and fire protection facilities, libraries, and other governmental facilities that are necessary or desirable to meet the projected needs of the municipality.
j. Objectives, policies, and programs to identify characteristics and qualities that make the municipality unique and that are important to the municipality’s heritage and quality of life.
k. Objectives, policies, and programs that identify the natural and other hazards that have the greatest likelihood of impacting the municipality or that pose a risk of catastrophic damage as such hazards relate to land use and development decisions, as well as the steps necessary to mitigate risk after considering the local hazard mitigation plan approved by the federal emergency management agency.
l. Objectives, policies, and programs for joint planning and joint decision making with other municipalities or governmental entities, including school districts and drainage districts, for siting and constructing public facilities and sharing public services. The comprehensive plan or land development regulations may identify existing or potential conflicts between the municipality and other local governments related to future development of the municipality and may include recommendations for resolving such conflicts. The comprehensive plan or land development regulations may also identify opportunities to collaborate and partner with neighboring jurisdictions and other entities in the region for projects of mutual interest.
m. A compilation of programs and specific actions necessary to implement any provision of the comprehensive plan, including changes to any applicable land development regulations, official maps, or subdivision ordinances.
3. A municipality’s comprehensive plan developed using the guidelines under this section shall address prevention and mitigation of, response to, and recovery from a catastrophic flood.