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Updating Land Use and Zoning Ordinances

February 16, 2011

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Your Faculty

Prof. Daniel R. Mandelker, FAICP

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DANIEL R. MANDELKER, FAICP, is the Stamper Professor of Law at Washington University in St. Louis, where he teaches land use law and state and local government law. In 2007 he received the Daniel J. Curtin Lifetime Achievement Award from the Section of State and Local Government of the American Bar Association. He is the author of treatises on Land Use Law and NEPA Law and Litigation, coauthor of law school casebooks, Planning and Control of Land Development, and State and Local Government in a Federal System, and author of many law review articles. Professor Mandelker is a frequent lecturer at conferences and workshops on land use law and has consulted nationwide on land use problems. He was the principal consultant to the American Planning Association’s Smart Growth project that published new model legislation for land use planning and regulation, and drafted charter amendments to the New Orleans city charter that require adoption of a comprehensive plan and consistency of land use decisions with that plan. Professor Mandelker was the consultant for a Task Force on local land use procedures and appeals that drafted model legislation for land use decision making that was adopted by the American Bar Association’s House of Delegates. He served on the Board of Directors of the American Planning Association and their amicus curiae committee. Professor Mandelker has B.A. and LL.B. degrees from the University of Wisconsin (Madison), and a J.S.D. degree from Yale University.

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Don Elliott, FAICP

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DONALD l. ELLIOTT, FAICP, is a Senior Consultant with Clarion Associates of Colorado, LLC, a land use consulting firm with offices in Denver, Chapel Hill, Chicago, Cincinnati, and Philadelphia. Don’s practice focuses on land planning and zoning, growth management, and international land and urban development issues. He has also advised numerous local governments in Russia on land use issues, served as the Democracy and Governance Advisor to the United States Agency for International Development in Uganda for two years, and performed independent research on Indian urbanization and slum upgrading in Delhi for two years. Mr. Elliott is the author of A Better Way to Zone (Island Press 2008), co-author of The Citizen’s Guide to Planning (APA 2009) and the editor of Colorado Land Planning and Development Law. Don has a bachelor’s degree in Urban Planning and Policy Analysis from Yale University, a law degree from Harvard Law School, and a master’s degree in City and Regional Planning from the John F. Kennedy School of Government at Harvard. He is a past national Chairman of the Planning and Law Division of the American Planning Association, a past president of the Colorado Chapter of the American Planning Association, a past member of the Amicus Curiae Committee and the National Policy Committee of the American Planning Association, a member of the American, Colorado, and Denver Bar Associations, and a Fellow of the American Institute of Certified Planners.

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Dwight Merriam. FAICP

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DWIGHT H. MERRIAM, FAICP, founded Robinson & Cole’s Land Use Group in 1978. He represents land owners, developers, governments and individuals in land use matters. Dwight is a Fellow and Past President and of the American Institute of Certified Planners, a former Director of the American Planning Association, Chair of the American Bar Association’s Section of State and Local Government Law, a Fellow of the Royal Institution of Chartered Surveyors, a Fellow of the American Bar Foundation, a member of the Rocky Mountain Land Use Institute National Advisory Board, a Fellow of the Connecticut Bar Foundation, a Counselor of Real Estate, a member of the Anglo-American Real Property Institute, and a member of the American College of Real Estate Lawyers. He teaches land use law at the Vermont Law School and has published seven books and 200 articles. Dwight received his B.A (cum laude) from the University of Massachusetts, his Masters of Regional Planning from the University of North Carolina and his J.D. from Yale.

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I. Were Do We Start? With a PLAN of Course!

A. The rational planning model

B. The role of the comprehensive plan

C. Mandatory planning and the consistency doctrine

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Banfield lists the following steps for rational decision making:

1. The decision-maker considers all of the alternatives (courses of action) open to him; i.e., he considers what courses of action are possible within the conditions of the situation and in light of the ends he seeks to attain;

2. He identifies and evaluates all of the consequences which would follow from the adoption of each alternative; i.e., he predicts how the total situation would be changed by each course of action he might adopt; and

3. He selects that alternative the probable consequences of which would be preferable in terms of his most valued ends.

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Identify issues, opportunities, and assumptions↓

Formulate goals↓

Collect and analyze data↓

Revise goals and determine objectives↓

Develop and evaluate alternative plans↓

Select and adopt the preferred plan↓

Implement the general plan ↓

Monitor and amend the plan

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Role of the comprehensive plan

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What is a comprehensive plan?• From Oregon:

1 Citizen Involvement2 Land Use Planning3 Agricultural Lands4 Forest Lands5 Natural Resources, Scenic &Historic Areas, and OpenSpace6 Air, Water and LandResources Quality7 Areas Subject to NaturalDisasters and Hazards8 Recreational Needs9 Economic Development10 Housing11 Public Facilities and Services12 Transportation13 Energy Conservation14 Urbanization15 Willamette River Greenway16 Estuarine Resources17 Coastal Shorelands18 Beaches and Dunes19 Ocean Resources

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• From California

♦ Land Use ♦ Conservation ♦ Circulation♦ Open Space ♦ Housing ♦ Noise ♦ Safety

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Legal doctrines

• Mandatory Planning Doctrine

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Legal doctrines

• The Consistency Doctrine

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II. The Reconnaissance - How Bad Is the Current

Ordinance?

A. Procedurally and substantively

B. Looking for illegalities and seeking opportunities

C. Setting the template

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Issues of procedure

• The legislative-administrative-adjudicative typology – how much does a public resemble a courtroom scene?

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Examples of each

• Legislative– Rezoning; map change; text amendment

• Administrative– Site plan; subdivision

• Adjudicatory or Quasi-judicial– Single site rezoning/– Enforcement appeal; variance

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Issue of substance

• What’s planned for and regulated?– The First Amendment problems

• Signs• Adult uses• Religious organizations

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• What else have you or haven’t you planned for?– Drive-up service– Medical marijuana– Internet business– Accessory uses– Home occupations

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III. The Task of Drafting

A. Public participation

B. Vocabulary building

C. Consensus building

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How do you get the public involved?

• What is a charrette?

• Use of websites

• Social networking

• Public meetings

• Newspapers and fliers

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Vocabulary building

• Why the definition section is so important

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Consensus building

• How do you reach agreement?

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Hal Movius suggests:

• Recognize that negotiation is not just an individual skill, but an organizational capability.

• Specify the criteria that define a successful negotiation.

• Embrace negotiation as a core capability. • Create opportunities—through coaching,

training, and leadership development experiences—for your people to confront their own emotional barriers to conflict.

• Recognize that negotiations are a potent source of feedback regarding strategy.

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IV. Refining and Moving Toward a Final Draft

A. When to hold them,

and when to fold them

B. Building a living document

C. Testing the product

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When to hold them, and when to fold them

• Horse-trading, log-rolling and other techniques to get what you want.

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Make it a living document

• Tips for making it iterative and interactive.

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Test it

• Gaming strategies.

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V. Implementation

A. Meetings, hearings, and public debate

B. Procedural requirements

C. Critiquing

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Questions and Answers