by Gary Taylor and Allison Arends

Section three of the Smart Planning legislation creates the Iowa Smart Planning Task Force.  The task force provision was targeted for elimination through amendments to the original bills by Republican House and Senate members on the grounds that it represented an expansion of government.  The final version inserted into the Rebuild Iowa Infrastructure appropriations bill kept the task force, modified somewhat its membership, and provided a sunset date for the taskforce of December 2012.  It is required to meet at least four times before November 15th, 2010 and prepare a report with recommendations consistent with the Iowa smart planning principles for the governor and general assembly by that date.  Considering this is a little over 7 months away, and the task force has yet to be convened, it should prove a challenge to develop a set of recommendations that reflect careful deliberation by a diverse membership.

The task force consists of twenty-nine voting members and four ex-officio non-voting members. The task force is heavy with state agency representation.  Fourteen state agencies are represented:  (1) the department on aging (2) the department of economic development  (3) the secretary of agriculture and land stewardship (4) the department of cultural affairs (5) the department of public health (6) the department of management (7) the department of natural resources (8) the department of workforce development (9) the office of energy independence (10) the department of transportation (11) Homeland Security and Emergency Management Division of the Department of Public Defense (12) Rebuild Iowa Office (13) the state building code commissioner, and (14) the utilities division of the department of commerce.  The other 15 voting members consist of experts in areas of real-estate, land development and residential construction, and representatives of local and regional governments, including the planning departments of Iowa State University and the University of Iowa, the League of Cities, the State Association of Counties, the American Planning Association, American Institute of Architects, Iowa Association of Regional Councils, school administrators, and representatives of small cities and counties and large cities and counties.  The four ex officio non-voting members will be one Democrat and one Republican from the House of Representatives, and one Democrat and one Republican from the Iowa Senate.

The task force will be staffed by the department of management, which may seek assistance from the Iowa Association of Regional Councils.  In addition, the department of management is required to “seek funding to support municipal comprehensive planning in this state.”  We will have to monitor progress on this directive.

As they appear in the bill, the duties of the task force are to:

a.  Consult land use experts, representatives of cities and counties, agricultural and environmental interests, urban and regional planning experts, reports or information from the local government innovation commission, and all other
information deemed relevant by task force members.
  b.  Solicit information from the general public on matters related to comprehensive planning.
  c.  Evaluate state policies, programs, statutes, and rules to determine whether any state policies, programs, statutes, or rules should be revised to integrate the Iowa smart planning principles under section 18B.1.
  d.  Develop statewide goals for comprehensive planning that utilize the Iowa smart planning principles under section 18B.1, and develop recommendations for a process to measure progress toward achieving those goals.
  e.  Evaluate and develop incentives to conduct local and regional comprehensive planning, including but not limited to state financial and technical assistance.
  f.  Develop a model for regional comprehensive planning within the state and recommend partnerships between state agencies, local governments, educational institutions, and research facilities.
  g.  Review municipal comprehensive plans to determine the number of such plans that address the hazards identified in section 18B.2, subsection 2, paragraph “k”, and the adequacy of such plans in addressing those hazards.
  h.  Develop a set of recommendations that is consistent with the Iowa smart planning principles under section 18B.1 and that does all of the following:
  (1)  Coordinates, facilitates, and centralizes the exchange of information related to state and local planning, zoning, and development between state agencies and the general assembly.
  (2)  Coordinates discussions concerning a proposed geographic information system between the producers and the users of such systems.
  (3)  Allows the efficient production and dissemination of population and other demographic statistical forecasts.
  (4)  Creates a centralized electronic storage location for all comprehensive plans adopted under chapter 335 or chapter 414.
  (5)  Facilitates the cooperation of state and local governments with comprehensive planning, educational, and research programs.
  (6)  Provides and administers technical and financial assistance for state and local comprehensive planning.
  (7)  Provides information to local governments relating to state and federal resources and other resources for comprehensive planning.

These duties seem to fall into two broad categories, (1) facilitate and promote comprehensive planning and smart planning at the state, regional and local levels, and (2) streamline the gathering and dissemination of planning information (both the information used in developing plans, and information about the plans themselves).  Only one duty directly addresses hazard mitigation (see g. above), but these two broad themes clearly reflect many the recommendations of the Governor’s Rebuild Iowa Advisory Commission and the Water Resources Coordinating Council.  Common themes in the discussions following the 2008 floods included the need for better information about flood hazards and risks, the need for information on the development taking place throughout the watershed, and the need for better watershed-based planning models.  In many states that have moved toward smart planning, information centralization – including land information systems, demographics, and economic data – has been an important component of the process.

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.

From Aaron Todd at RIO this morning (Thursday):

“As you may be aware, SF2265 (Iowa Smart Planning Bill) was not debated in the House yesterday – most of the day was taken up by the standings bill.  While SF2265 is on the tentative House calendar today, there is concern that we are running out of time and that some legislators may view the Watershed Planning Advisory Council and Watershed Management Authorities bill (see links below) that was passed this morning by the House as somehow negating the need for the planning bill.  While we support HF2459, we believe SF2265 is also needed.

If you feel so inclined, please call, email, and/or visit Representative McCarthy (515-281-3054) to express your support for SF2265, in particular Section 2 that outlines the comprehensive planning definition, and encourage others to do the same.  Please call Susan Judkins (515-242-5503 or 515-729-2837) or me (515-242-5299) with questions.”

Link to Watershed Planning Advisory Council and Watershed Management Authorities Bill:  HF 2459

The latest news on SF2265, the Smart Planning bill: 

Legislators are hoping to wrap up their work by March 26th, so decisions will be made very soon regarding movement of the bill in the House.  Several proposed amendments have been filed. Any amendments adopted in the House will require the bill to once again go to the Senate floor, for senators to concur with or reject the amendments.

Amendments filed to date that are expected to be offered during debate are as follows:

H-8341 is the House Local Government Committee amendment. The amendment changes “shall consider and may include” to “may consider and include” the Smart Planning Principles, and makes corresponding changes throughout the bill. The amendment also includes a revised definition of “development,” and makes changes to the composition, goals and tenure of the task force (dissolves on 12/31/12).

H-8364 would amend amendment H-8341 by sunsetting the task force upon submission of the recommendations that are due 11/15/10. (filed by Grassley, R-Butler)

H-8369 would amend amendment H-8341 by striking all of the bill language from SF2265 and insert the bill language from HF2476, which only enacts smart planning principles (in other words, eliminating the comprehensive plan elements and the taskforce); and adds language defining “development” requested by Farm Bureau (filed by Helland, R-Polk and Wagner, R-Linn).

H-8373 would amend the amendment H-8341 by clarifying that of six individuals appointed by the governor, at least one shall have experience in real estate, one in land development and one in residential construction (as previously drafted, it appeared that one from each city or county size listed must have these experiences). The amendment also restores paragraph f to page 16, line 26 of the bill (asks the task force to develop a model for regional comprehensive planning). (filed by D. Olson, D-Boone).

H-8365 would amend the bill by preventing RIO and IDOM from hiring additional employees or contracting to provide staff assistance and administrative support.  It also prohibits the expenditure of moneys related to the duties of the task force. This amendment is filed by Wagner (R-Linn). 

H-8366 would amend the bill (SF2265) by removing RIO from facilitation of the task force and makes the Iowa Department of Management the repository of records. (filed by Wagner, R-Linn).

H-8683 would amend the bill (SF2265) by striking all the language from SF2265 and replacing it with Smart Planning Principles (in other words, eliminating the comprehensive plan elements and the taskforce).  Includes a definition of “development” as requested by Farm Bureau. Requires the Rebuild Iowa Office to email the contents of the act to all state agency directors and governing body of each city and county in the state by 12/31/10. (filed by Deyoe, R-Story).