Land Use Planning Basics Making Good Land Use
Land Use Planning Basics: Making Good Land Use Policies New Supervisors Institute Class of 2011 Sacramento, California February 24 th Tim Snellings Director of Development Services Butte County, California Michael D. Martello City Attorney (Ret. ) Land Use Law Institute for Local Government
About the Institute • Research arm of CSAC and LCC • Program areas – Land Use – Ethics – Climate Change --Civic Engagement --Healthy Communities --Fiscal Stewardship • Funding • Resources available at www. ca-ilg. org
Program Overview • Land Use Planning Framework • Other Laws Relating to Land Use Decision-making • Intergovernmental Relations • Elements of Good Decision-Making
Planning Framework • California Counties – Plan – Provide information and services to its customers – Develop and Apply laws and Ordinances – Appoint Planning Commissions – County Boards sit as “judges” on land use applications
Why Plan? • • Saves money Sets expectations Protects and increases property values Facilitates economic development Provides a forum for reaching consensus Minimizes environmental damage Connects people to the community
Basic Planning Framework • General Plan • Zoning • Conditional Use Permits & Variances • Other Planning Requirements
General Plan • Key land use policy document • Blueprint for physical growth and development • Comprehensive and long-term vision (10 to 20 years) • Establishes goals, objectives and performance measures for growth
General Plan § Seven Mandatory Elements: -- Land Use -- Circulation -- Housing -- Conservation -- Open Space -- Noise -- Safety § Optional Elements • Examples: Parks & Recreation, Agriculture, Economic Development, Historic Preservation, Growth Management; Seismic Safety; Scenic Highway
General Plan • All elements must be internally consistent----The “Consistency Doctrine” • Other planning documents must be consistent with general plan • Decisions- must be consistent with general plan – even building permits
Changing the General Plan • Periodic amendments okay—but only four amendment “cycles” per year • When to update • • When amendments become frequent To maintain internal consistency To reflect changes in state law To reflect changes in policy perspective • Updating the general plan • Allow enough time to do job right • Provide adequate funding • Seek public input and buy-in
Zoning • What it is: Division of land in community into areas • Ordinance specifies allowable uses and sizes for real property/buildings • Also may be used to regulate: – – Landscaping Signs and billboards On and off street parking Design of building • Implements policies specified in general plan
Zoning • What uses are allowed by right or with special permit (conditional use permit) • Approaches: – Traditional: Specify uses and standards – Form-based: More design-oriented – Hybrids • Nonconforming Uses
Another Tool: Specific Plan • What it is: Plan for large or unique areas benefiting from special attention • Combines specifics of zoning with objectives of general policy – Content specified in law • Implement general plan policies in a specific area • Must be consistent with general plan
Conditional Use Permits • What they are: A tool to regulate uses that may affect neighboring properties adversely – Examples: drive-through businesses, hotels, card rooms • Conditions must reasonably relate to impacts • Typical conditions address: – Physical features (building design, site plan), – Operations (hours, number of persons) • Monitoring/review/renewal helpful • Note: Permit applies to site: “runs with the land”
Variances • What they are: A discretionary action in unique situations allowing a deviation from zoning standards – based on State law • Required findings: – Unique circumstances peculiar to property (size, shape, topography, location, or surroundings) – Strict application of zoning requirements deprives property of privileges enjoyed by others – Not a grant special privilege inconsistent with limitations on other properties – Use is otherwise consistent with the purposes of the zoning district
Other Land Use-Related Laws
Environmental Review (CEQA) • CEQA = California Environmental Quality Act • Evaluation of environmental consequences of public agency actions • Including public projects as well as project approvals
Environmental Review (CEQA) • Whoever has the widest discretionary approval of project (the “lead agency”) does environmental analysis • Possible scenarios: 1. Project is exempt--no further CEQA review 2. Negative declaration (and MND)--all impacts can be mitigated without full-blown analysis 3. Environmental impact report (EIR)--potential for significant impacts or impacts which cannot be mitigated—full analysis
Environmental Review (CEQA) Mitigation Monitoring • Important step—public trust in process • Assures mitigation measures implemented • Practicalities (funding, accountability, reports, etc. )
Subdivision Approvals • What it is: Division of property for purposes of sale, leasing or financing • Governed by Subdivision Map Act • Tool to assure that land divisions comply with general plan and other land use requirements
Subdivision Approvals • Two scenarios – Parcel map, minor land divisions--Four or fewer lots – Tentative/final map process--Five or more lots • Tentative maps specify conditions that must be met by landowner • If conditions are met, the map becomes “final” and is recorded – Note: Nondiscretionary/ministerial act
Development Agreements • A contract between agency and developer as to how a property will be developed • “Freezes” certain regulations & policies (protects against changes in requirements) • Purpose: To secure extra public benefits in exchange for certainty (examples) • Specifies type of development, timing, benefits developer will provide, and other requirements
Permit Streamlining Act • Concept: Project proponents are entitled to decisions within certain timelines • Applies to “quasi-judicial” decisions • “Deemed approved”: Failure to approve by deadlines may result in automatic approval if applicant has taken certain steps
Money Issues • Policy issue: How does development pay its way? • Tools: – Fees – Dedications – Exactions – Assessments – Taxes – Debt
Dedications & Fees • Dedications. Owners dedicate portions of their land for roads, utilities, parks, schools and other uses to meet needs created by development • Fees. Support processing of application and purchase of facilities and services needed to support development • General rule: – A condition must be reasonably related (nexus) and proportional to the impact caused by the project or development
Intergovernmental Relations
Who Has Jurisdiction over What? Boundary Issues • Local Agency Formation Commissions (LAFCOs) – Promote creation of logical boundaries for cities and special districts • Key Concept: Sphere of Influence § Ultimate physical boundaries and service area of a local agency § Review and update as necessary but not less than once every five years
Regional Blueprint Planning • Voluntary program • Scenario planning that evaluates land use patterns and effects on transportation systems, housing supply and natural resources • Involves COGs, transportation agencies, local officials and stakeholders (for example, business and environmental organizations) • Process tied to funding availability • Goal: foster consensus on vision for area and preferred growth patterns
Making Good Decisions Well Process Issues
Making Good Decisions • Due Process • Public Hearings • Findings • Appeals • Roles and Responsibilities
Due Process • Underlying concept: fairness in decision-making • Legal standard varies according to type of decision – Legislative: Creating broad policies apply to many properties – Quasi-Judicial: Application of policies to specific property • Legislative actions: – Fewer procedural requirements/restrictions – Test if challenged: action is reasonable and nondiscriminatory
Due Process • Quasi-judicial – Stricter procedural requirements during hearing – Decisions based on evidence in record – Ex parte information and communications – Bias issues – Test if challenged: Decisions must be supported by substantial evidence in the record
Notice and Opportunity to be Heard • Importance of transparency to public trust and perceptions of fairness (applicant’s and public’s) • General Brown Act requirements • For Quasi-judicial Proceedings – Applicant rights – Neighbors rights – General public’s rights
Effective Public Hearings • Role of public hearings • Not the only mechanism available for public input on a project • Decision-maker demeanor and conduct critical – – To project proponent To public To colleagues To staff
Making Decisions: Findings Purpose of findings: · Provide a framework for making principled decisions · Facilitate orderly analysis to reduce likelihood of random leaps from evidence to conclusions · Apprise the reviewing court of the basis for the agency’s decision
Findings • Explain the basis for the decision to applicant, public and reviewing courts – Part of the public record • Should describe reasoning – “The project is inconsistent with the general plan because…” – Refer to factual evidence (written or oral) – Key Concept: Show your analytical work
Appeals • Two sources of appeal – public or applicant • Staff usually provides Commission action and includes original staff recommendation to Commission • Scope of issues on review: de novo versus focused
Appeals • Usually controversial • Helpful if Chair works with staff to review procedures before meeting • If lots of successful appeals from commission actions, time to meet with commission to discuss policy issues
Elected Official Role • Sets policy and general procedures • Appoints planning commission • Decides legislative actions (general plans, zoning ordinance, zone changes, etc. ) • Hears final appeals • Balances relationships with planning commission, staff and public • Preparing for meetings (read materials)
Planning Commission Role • Duties vary, but typically include: • • Assist in development of general and specific plans Review, hold hearings and act on zoning ordinances Project review and approval Review capital improvements plan Make general plan conformity findings Coordinate planning efforts Consider land acquisitions Make special studies regarding planning issues of concern • The commission must also balance relationships among the board, staff and the public
Helping the Planning Commission • Meet with Commission annually • Review relationships • Review any major policy issues • Require Commission to have rules & regulations • Encourage Commission to ask for direction if a question or inconsistency arises • Provide adequate funding for training • Focus on policy – let them sort out the details
Staff Role • Provide decision-makers with their best analysis of how proposals stack up against agency’s existing agency policies • Tips for optimizing staff relations – Staff is a key resource to decision-makers – Respect their role even if you don’t agree with recommendation – Ask your questions before meeting—helps meeting move along and allows them time to research answer – If policy doesn’t work, change it (working around it may get you in trouble)
Additional Tools Want more information? – Planning Commissioner’s Handbook – Web Resources • • • Institute for Local Government www. ca-ilg. org Office of Planning and Research www. opr. ca. gov Housing Resource Center: www. ca-ilg. org/hrc American Planning Association – www. planning. org California Planning Roundtable – www. cproundtable. org
What Every Board Member Should Know About Land Use Planning in Their County… Mike Martello, Land Use Law Attorney Tim Snellings, Butte County
Straight Talk • …from the Planning Directors in the 58 CA counties
CCPDA Input Just For You 1. If you don’t like the current local rules or plans, then you should work to change them rather than criticize the staff for enforcing the old Board’s rules. It a common belief of newly elected officials that the staff decides the rules and has the power to “interpret” them any way they want. There is a process to air their beliefs and it is the public hearing process.
CCPDA Input Just For You 2. Land use projects and related CEQA reviews need to move along efficiently but have to follow all legal requirements. Some new Board members who did not come up from the Planning Commission ranks sometimes do not realize all that goes into these key areas.
CCPDA Input Just For You 3. Zoning is not the same as the General Plan designation. Most people are generally familiar with their zoning, since that dictates their allowed uses, setbacks, and height restrictions. As a result, they often confuse it with the General Plan designation. It’s much more difficult to change the General Plan designation than it is to change the zoning.
CCPDA Input Just For You 4. There is a widespread assumption that an EIR involves better science or reduces environmental impacts more than a Negative Declaration or Mitigated ND. In fact, it’s just the opposite. With an EIR, you can adopt Overriding Considerations, which provides an agency with more leeway to act (and with better legal protection) than it has under the constrictions of an MND.
CCPDA Input Just For You 5. The concept of “nexus” is critical. Boards of Supervisors do not have unlimited powers to require applicants to do whatever they want, regardless of how noble the cause or how much public pressure there may be. If you want additional concessions that don’t address a specific impact related to the project, you need to negotiate those with the applicant through a Development Agreement.
CCPDA Input Just For You 6. Planning is all about public information - Disclosure is the driving purpose behind FPPC requirements, CEQA, noticing requirements, and the Brown Act. All correspondence (including e-mail) that does not involve County Counsel is discoverable through a Public Records Act request. Be careful what you put down in writing.
CCPDA Input Just For You 7. Your jurisdiction will have to deal with climate change, whether you personally agree with it or not. The State government is moving forward on implementing it through the Metropolitan Planning Organizations, and it has to be addressed through CEQA. You can either get ahead of the curve and deal with it now, or wait and let the State dictate to your jurisdiction what it has to do.
CCPDA Input Just For You 8. Your General Plan is not just a dusty document sitting on a shelf that was developed by a bunch of impractical people to create an unattainable utopia. It is the foundation for all of your land use and building policy (and can include other departments such as Ag Commissioner, Housing, Natural Resources, Parks, and others). If you let it lapse for too long and get out of date, you run the risk (albeit remote) of successful litigation that can shut down all construction in the unincorporated area. Care, maintenance, and investment in your General Plan is crucial.
CCPDA Input Just For You 9. Government is not monolithic. California is comprised of 58 counties, 478 incorporated cities, and about 5, 000 independent special districts, as well as a State government of 40 agencies, departments, and commissions, containing more than 300, 000 employees. Each of these entities enjoys powers that are largely separate from the others and are often at odds with one another. Planning’s job is to try to find solutions that satisfy all of these competing mandates and interests. It takes a lot of discussions and a lot of time to work things out. Don’t expect complicated inter -jurisdictional issues to be resolved immediately.
CCPDA Input Just For You 10. State/federal grants often involve an enormous amount of work (and associated costs) to comply with the red tape associated with them. They are not the solution to limited local resources.
CCPDA Input Just For You 11. The business cycle exists. Booms will not last forever, so be careful about staffing up too much in planning and building when times are good, because you’re just going to have to lay people off. Busts will also not last forever, so don’t cut your planning and building staff to the core as a part of budget cuts and destroy the institutional knowledge that is going to be needed to deal with the next boom. Plan ahead.
CCPDA Input Just For You 12. When providing direction as a Board to staff, be clear about what you want changed, what you want to achieve, and when you want it. Staff aren’t mind readers. Vague platitudes may work well on the campaign trail, but they aren’t very helpful to the people trying to implement your intent. It’s hard to hold staff accountable if you aren’t clearly communicating expectations. Garbage in, garbage out.
CCPDA Input Just For You 13. The demand for work projects, such as general plan updates and legislation revising development codes and addressing current problems, is larger than what your Planning Department staff can accomplish. Prioritization of work projects is a necessity. The Board cannot merely assign more work projects to the planning staff, without replacing existing work projects.
CCPDA Input Just For You 14. Best Advice My Board Ever Told Me: Bring us the tough issues…not always a 5 -0 on issues…
CCPDA – Your Planning Department is ready, willing and able to help
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