Updating Land Use and Zoning Ordinances

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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
Associations 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 Associations 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. Dons 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 Citizens Guide to
Planning (APA 2009) and the editor of Colorado
Land Planning and Development Law. Don has a
bachelors degree in Urban Planning and Policy
Analysis from Yale University, a law degree from
Harvard Law School, and a masters 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
Coles 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 Associations 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
• 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
• 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 Involvement
• 2 Land Use Planning
• 3 Agricultural Lands
• 4 Forest Lands
• 5 Natural Resources, Scenic
• Historic Areas, and Open
• Space
• 6 Air, Water and Land
• Resources Quality
• 7 Areas Subject to Natural
• Disasters and Hazards
• 8 Recreational Needs
• 9 Economic Development
• 10 Housing
• 11 Public Facilities and Services
• 12 Transportation
• 13 Energy Conservation
• 14 Urbanization

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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

• Whats planned for and regulated?
• The First Amendment problems
• Signs
• Adult uses
• Religious organizations

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• What else have you or havent 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 opportunitiesthrough coaching, training,
  and leadership development experiencesfor 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

• 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

• Meetings, hearings, and public debate
• Procedural requirements
• C. Critiquing

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Questions and Answers