Thursday, July 8, 2010

Mandatory Consistency

In my comments yesterday, I referred to Tenn. Code Ann. § 13-4-202(b), which allows a planning commission to request legislative approval of General Plans here in Tennessee, and the recent amendment extending the required consistency to include local zoning boards. Perhaps it would be well to discuss the original provision in order to understand it further.

Before exploring that topic, some history is perhaps worth reviewing. Remember that planning is an important precursor to land use regulations. The theory is that a plan is developed by the planning commission, and then regulations, including the zoning ordinance are passed giving effect to the plan. In the words of the Standard Zoning Enabling Act (see a discussion in Wiki here), zoning was to be "in accordance with the comprehensive plan." Many state zoning acts use this language, at least originally, even if it is not precisely clear what was intended.

Here in Tennessee, however, that language was avoided entirely. Alfred Bettman, from Ohio, was asked to draft the Tennessee act in 1934. He was one of the most prominent land use attorneys of the early 20th Century, and he selected very different language:

Whenever the planning commission of the municipality makes and certifies to the chief legislative body a zoning plan, including both the full text of a zoning ordinance and the maps, representing the recommendations of the planning commission for the regulation by districts or zones . . . , then the chief legislative body may exercise the powers granted . . . , and may divide the municipality into districts or zones of such number, shape and areas it may determine, and, for such purposes, may regulate the erection, construction, reconstruction, alteration and uses of buildings and structures and the uses of land.

It would seem that statute contemplates the "zoning plan" as the text of the zoning ordinance and the zoning map or maps. A separate plan, such as we are accustomed to today, was not necessary to the adoption of the zoning ordinance.

This was Bettman's view of planning and zoning. In his regard, the Planning Commission was the keeper of the plan; it was not a political document that would be sullied by the political machinations of the city council, but a bible to be interpreted and construed by the planning commission.

Unfortunately, while this might have been a fine planning perspective, it neglects the practical impact of local politics in America. The General Plan might remain pure and protected by the Planning Commission but it also became irrelevant. The city council began to simply ignore the plan and the high priests on the planning commissions. To the extent that the state zoning law required a large majority to override a recommendation of the Commission, that became an accepted practice. In Metro Nashville, for example, where a 2/3rds majority is required to override by the Charter, if the local councilmember wishes to override, it is usually not a problem.

In took about 30 years, but in 1964, TJ Kent in his famous book, "The Urban General Plan" argued that the plan had to be adopted by the city council in order to have an impact on the decisions being made by city leaders. He argued persuasively that the plan could not just be the Planning Commission's document but that it had to be shared with the leadership of the city and adopted by the city council. Perhaps the plan would not remain quite so pristine, but it would have an impact on decision not not be entirely ignored as so many had become.

Tennessee's legislation was not immediately amended to reflect this change in planning philosophy. But in 2008, the General Assembly allowed a city to choose to follow the Kent model (it is not required). Let's take a look at the language:

Once the commission has adopted the general plan or amendment of the general plan for the planning jurisdiction of the commission, the commission's transmittal of the certification to the legislative body may simultaneously include a resolution by the planning commission requesting the consideration and adoption of the general plan by the legislative body of the municipality . . . The municipal legislative body, by ordinance, may adopt the general plan as certified by the planning commission

Tenn. Code Ann. § 13-4-202(b). The planning commission gets to choose: if councilmanic action seems apropos, then the planning commission may request it, and if not, not. But, once the request has been made and accepted, the planning commission is no longer the sole keeper of the plan. Substantial control over the document is vested in the council

The planning commission may vote to amend, but outside of only a few counties, before the amendment becomes effective, the council must also adopt it. Tenn. Code Ann. § 13-4-202(b)(1)(A). Further if the council wants to amend, the commission has 60 days to agree; if not, the council may pass the amendment by a majority vote. Tenn. Code Ann. § 13-4-202(b)(2)(A).

To illustrate this power further, suppose the planning commission asks for the involvement of the council, but the plan as certified has some objectionable elements. Remember that the statutory language authorizes the council to adopt the General Plan as certified. Tenn. Code Ann. § 13-4-202(b). Does this effectively prevent the council from acting? No way; the council simply adopts the plan as certified and then immediately notifies the planning commission of its intent to remove the offending elements out of the plan. If the planning commission will not agree within 60 days, the council simply passes its own version after the 60 days expires. Tenn. Code Ann. § 13-4-202(b)(2)(A).

The importance point in this legislative amendment is that once the General Plan is adopted in this way, all future land use decisions must be consistent with the plan. Tenn. Code Ann. § 13-4-202(b)(2)(B)(iii). That is, the city council (or county legislature), the planning commission, and the zoning board (except with regard to variances) must make decisions which are consistent with the plan. If not, it will provide a legal grounds to challenge the decision and seek a reversal. With the exception of the Smart Growth Act, Tenn. Code Ann. § 6-58-101, 107, this is the only statute that requires mandatory consistency with the General Plan.

I think that TJ Kent would applaud the changes made by the General Assembly. Whether many municipalities will adopt this process, and how effectively it will work here in Tennessee, remains to be seen. At least now however, the choice is there, and the local governments can make an educated decision about how to implement the long range planning process within their jurisdictions.

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