Transcript Mayor & Council Members

Land Use Planning Basics:
Making Good
Land Use Policies
New Supervisors Institute
Class of 2011
Sacramento, California February 24th
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?
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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
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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:
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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)
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Whoever has the widest discretionary approval
of project (the “lead agency”) does
environmental analysis
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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
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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:
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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
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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