Planning for Wicked Problems

A Planner's Guide to Land Use Law

Dawn Jourdan, Eric J. Strauss

• Publisher: Routledge
• Year: 2015
• ISBN:
  9781317748007
• Edition: 1
• Topic: Architecture
• Subtopic: Urban Planning & Landscaping

Efforts to teach students pursuing graduate degrees in urban and regional planning are often frustrated by the "case books" that have been prepared for use by law professors teaching similar courses. Dawn Jourdan and Eric J. Strauss have attempted to take their concerns to heart in the design of this Planning for Wicked Problems: A Planner's Guide to Land Use Law.

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• Each chapter begins with a planning problem that is complex and has no "correct" answer. Students should answer this hypothetical before reading the subsequent sections of each of the chapters.

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• The second section of each chapter provides a primer for each topic. This primer is meant to summarize the basic principles of the law and to identify the types of questions relevant to planners when such issues arise.

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• The third section of each chapter includes a series of edited court opinions. The cases selected have been identified by American Institute of Certified Planners as those fundamental to planning education.

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• Each chapter concludes with an answer to the proposed wicked planning problem.

Planning for Wicked Problems has been written to demonstrate to future planners how the law may be a useful tool in helping them invent solutions to wicked planning problems. The book features a companion website for additional study and review.

1
Introduction

“It Depends.” This is Dr. Strauss’ favorite answer to any land use law question posed to him by an inquiring student. This response can be enormously frustrating. However, to Dr. Strauss’ credit, “It depends” is often the best answer to most questions posed by students enrolled in such courses. As lawyers and planning practitioners will tell you, the law does not offer much definitive guidance on the complex issues planners face on a daily basis. Rather, the law, case law in particular, provides a lens that planners and lawyers may utilize in order to identify potential legal issues and some insight regarding their potential resolution in or out of the courtroom. We believe that the measure of success for a non-law student enrolled in a land use law class is whether that student can spot the presence of legal issues and speak intelligently to legal staff and decision-makers when these issues arise. Students completing a land use law course must understand that they are not lawyers, but be confident in their abilities to talk to them, as they will likely encounter a whole host of them in both public and private planning practice.

This book has been written with planning professionals in mind. This book is not a traditional casebook. Dr. Strauss and I have experimented with numerous casebooks in our classrooms over the years. We have seen our students struggle with the length and complexity of casebooks that are intended for use by law students who are often educated using the Socratic methods, a process by which the law student discovers legal principles as a result of an intensive questioning process by the instructor. This learning methodology is off-putting to planning students and has even been replaced in most law classrooms. Cases are included in this text. However, they should be considered supportive materials, providing students the opportunity to observe legal and planning principles in action. Dr. Strauss and I have aspired to include the most notable cases in land use law. This decision is based on the importance of these cases to both planning history and planning practice. The cases included also reflect the scope of the case law deemed important to the profession by the American Planning Association for the American Institute of Certified Planners examination, the certification examination for professional planners.

After introductory chapters summarizing the planning process and the origins of U.S. law, each chapter begins with a hypothetical problem. It is our hope that faculties utilizing this text will use the hypothetical as an engine to start the discussion about the topics contained in each chapter of this book. These hypotheticals have been designed to represent the complexity of typical land use law problems. Dr. Strauss and I have attempted to design “wicked problems,” problems that are difficult to solve. At first glance, this approach might appear merciless. However, we believe that the tactic is useful in helping students to understand that there is no correct answer to planning problems. The “rightness” of issues is subjective and very often in the eye of the beholder. We hope these hypotheticals will engage students in dialogue about what the law requires in a situation, as well as what politics and ethics dictate.

Following the hypothetical, each chapter includes a topics section that seeks to provide a brief introduction to legal principles and relevant planning concepts. These sections have been drafted in the form of a legal treatise written with planners in mind. The information contained within is not exhaustive but will provide students with a working knowledge of the topics involved. Students should be able to answer the hypotheticals posed at the beginning of each chapter with the information contained within the topics section and with the supporting case law. Each chapter concludes with a sample answer to the posed hypothetical, as well as discussion questions that instructors may utilize to encourage critical thinking in each area of the law.

Dr. Strauss and I, along with our collaborators, hope that students and instructors utilizing this text will be able to overcome some of the traditional challenges planners face when they first encounter courses in law. We hope that students completing a land use law course will take with them the confidence that law is merely one aspect, albeit critical, of the decisions they will have to advise on or make as a part of their careers. We believe that good planning will occur when planners understand that the law is not a metaphorical box in which they have to do planning. Instead, land use law should be viewed as a basis for invention in planning practice.

Bibliography

Rittel, H. W. J. and Webber, M. M. (1973). Dilemmas in a General Theory of Planning. Policy Sciences, 4, 159–169.

2
The Planning Process

The manner in which plans have been historically crafted is separate from the legal process. This chapter seeks to introduce readers to a brief history of city planning in the United States beginning with the Industrial Revolution. The chapter will discuss how comprehensive planning and zoning processes have changed over the last 100 years. In addition, this chapter will introduce readers to terminology and fundamental concepts related to the planning process.

The planning and zoning process is relatively new in the United States. At the turn of the last century, wealthy industrialists sought the opportunity to trade with the world. One of the primary barriers to the achievement of this goal was the state of American cities. Developed to accommodate the industrial age, cities were crowded, polluted, and lacking in amenities. This small group traveled Europe to learn how to build world-class cities. They brought home with them the system of zoning, already entrenched in German city planning.

Herbert Hoover, then Secretary of Commerce, embraced this system. Understanding that planning and zoning efforts would need to be localized to be effective, Herbert Hoover drafted the Standard Planning Enabling Act (SPEA) and the Standard Zoning Enabling Act (SZEA). These acts, passed by the U.S. Congress in 1928 and 1927 respectively, divested the powers to plan and zone to the states. Copies of the original acts are available on the American Planning Association’s website at: www.planning.org/growingsmart/enablingacts.htm. Within a decade, more than 20 states had enacted one or both of these acts. The states took the powers divested to them by the U.S. Congress and empowered local governments, such as those in cities and counties, to plan and zone their communities. These activities spread like wildfire.

Generally, most states adopted SPEAs and SZEAs without much modification. What is most interesting is that the majority of states adopted one or the other. This choice is meaningful to planners who now understand the symbiotic nature of comprehensive plans and zoning documents.

Components of Codes

Comprehensive plans are visioning documents. They seek to assess the state of a community at the time of the plan, based on history and resources, and project a future based on community values and demographics. Typically, the planning process begins with data analysis and gathering. This information is typically shared with the public and utilized as the basis for the visioning process out of which the comprehensive plan is derived.

Figure 1 Credit: David D. Boeck

Comprehensive plans are typically comprised of goals, policies, and objectives that seek to cultivate abstract ideas into activities that can be implemented. For example, a city may set a goal of ensuring all residents can have easy access to fresh food. An appropriate policy would be to analyze the current location of all food stores in the city, identifying any food deserts. The affiliated objective would be to use tax incentives to recruit food sellers into these underrepresented areas. This activity is done widely for goals related to: housing, transportation, economic development, historic preservation, environmental resources, and hazards and emergency management, among others. Once adopted, the comprehensive plan serves as the guide for local development decisions.

Comprehensive plans typically contain a current and future land use map. These maps establish the appropriate land uses for property within a municipality both now and in the future. If a property owner seeks to develop his property differently from the zoning, he or she must seek permission from the legislative process for a rezoning. A rezoning application is first filed with city planning staff. Upon review of the rezoning application, planning staff issue a recommendation to the planning commission. The local planning commission is an appointed body of local residents who are empowered to review such request. Upon review at a public meeting, the planning commission passes its recommendation to the City Council. The City Council, a local elected body, holds a public meeting that allows the property owner and community members to comment on the proposed rezoning. At the end of the meeting, the City Council will issue a decision to accept or deny the rezoning. A property owner who is disappointed by this decision may seek legal appeal. A court will typically review a city council’s denial to rezone to determine if it was arbitrary and capricious.

On their own, comprehensive plans are weak tools for controlling the land development process. These plans gain “teeth” when paired with zoning ordinances. Zoning ordinances regulate land use and intensity. These regulations give property owners notice of what can be built on their land and where, as well as the details of that development from height to setbacks to design features. New development must comply with the terms of these regulations or developers must use the planning process to make changes. A landowner who seeks to build in a manner not permitted by zoning regulations must seek a variance from the regulations. This process begins with an application to the planning department. The application is transmitted to the Zoning Board of Adjustment. The board acts in a quasi-judicial capacity, holding a court-like hearing where the property owner, planner, and neighbors may weigh in on the proposed modification sought. If an application or objector is unhappy with the determination made by the board, they may appeal to the city council and then to the courts.

Consistency with Comprehensive Planning

In some jurisdictions, states require local governments to prepare and adopt comprehensive plans and zoning regulations. In Florida, for example, the state has long required the preparation of both documents. By law, these documents must be referenced and build upon each other. If the comprehensive plan establishes an objective to rectify food deserts, the zoning ordinance must be devoid of barriers to this objective. A deviation from the consistency requirement, in Florida at least, can have huge consequences. In Pinecrest Lakes v. Shidel, 795 So. 2d 191 (2001), a multi-family housing developer was required to tear down occupied housing units after a state court ruled that the permitted development did not comply with the local government’s comprehensive plan.

New Inventions in Land Development

Since the advent of the SZEA, local governments have struggled with the rigidity of their zoning requirements. They have sought to insert flexibility into this process, as further chronicled in Chapter 7. In the late 1990s, Andres Duany presented local governments with a new option for regulating local development. Known as the smart code or the form-based code, this tool seeks to regulate land development in the absence of land use. Rather than zoning individual properties, the form-based code is built on the creation of transects. These transects are similar to urban design districts, as further described in Chapter 14. They are built on the premise that any land use can be placed next to any other if appropriately designed.

Form-based codes have received wide attention and acceptance in communities across the United States, even in places where political will has not favored zoning regulations. While often embraced because they appear to be anti-zoning, the majority of communities that have embraced these new codes have kept their land use designation systems. These new codes, referred to as hybrid form-based codes, seek to regulate land use and aesthetics. It is possible that form-based codes and their hybrids may generate better designed developments. However, it is still too early to tell what their legacy may be. For now, zoning remains the primary tool utilized by cities to govern land use.

Discussion Prompts

• What is planning?
• Can planning happen without a comprehensive plan or a unified zoning code? Discuss Houston, Texas.
• What are the primary reasons motivating the recent growth of the use of form-based codes by communities across the United States?

Bibliography

Duerksen, Christopher, Dale, C. Gregory, and Elliot, Donald L. (2009). The Citizen’s Guide to Planning (4th edn.). Chicago: American Planning Association.

Garvin, Elizabeth and Jourdan, Dawn (2008).Through the Looking Glass: Analyzing the Potential Legal Challenges to Form-Based Codes. Journal of Land Use and Environmental Law, 23:2, 395–421.

Hall, Peter (1996). Cities of Tomorrow (updated edn.). Malden, MA: Blackwell Publishers.

Hoch, Charles J., Dalton, Linda C., and So, Frank S. (2000). The Practice of Local Government Planning (3rd edn.). Washington, DC: International City/County Management Association.

Kelly, Eric Damian and Becker, Barbra (2000). Community Planning: An Introduction to the Comprehensive Plan. Washington, DC: Island Press.

3
Origins of U.S. Law

The United States is a relatively new country. The laws of this nation evolved from a number of legal traditions and continue to demonstrate the influences of French, English, and Spanish legal systems. The most dominant, of course, is English common law. English common law is based on a tradition of the evolution of law through precedent. Law is not typically codified in statute. Rather, law evolves as a result of legal decisions that build upon each other. The United States is not governed by English common law. However, federal, state, and local statutes, in many instances, have evolved from the principles originating from common law traditions. The content and applications of these statutes, which are made by legislative bodies and enforced by executive agencies, are kept in check by the judiciary. As such, U.S. law continues to evolve and grow in the same way that English common law continues to expand.

Rather than letting U.S. law simply evolve, the founding fathers adopted a constitution to establish principles they identified as crucial to the future of the nation. In the constitution, these men sought to ensure that the new country would never become a monarchy. Instead, they created a system of government comprised of three independent branches: the legislative, the executive, and the judiciary. Each was vested with a specific and distinct function. The purpose of the three tiers of governance was to ensure that each branch of government could work to keep the others in check, precluding any one branch from obtaining too much power.

The legislative branch at the national level includes the Congress and the House of Representatives. These bodies are both comprised of elected representatives who make the law. For example, let us assume that the nation is uniformly concerned about an increase in natural disaster events such as hurricanes, earthquakes, tornadoes, floods, wildfires, and drought. There is some reliable evidence that the number and severity of these events will increase in the next 50 years as a by-product of climate dynamics. Congress, responsible for approving the country’s budget, is concerned that the current approach, which compensates affected property owners for losses associated with these events, will bankrupt the nation. A representative in the U.S. House of Representatives proposes a piece of legislation that would limit compensation to property owners to a “one time only” policy. The owners of properties damaged by tornadoes, for instance, would only be compensated once. They would be encouraged to use the funds to rebuild in a manner more resistant to storm damage or, in the alternative, to use the money to rebuild in an area less likely to be affected by natural disasters. This proposed bill would be debated by members of the House. If approved, the bill would be sent to the U.S. Senate to be reviewed, debated, and either approved or denied. If approved b...

Table of contents

• Cover
• Title
• Copyright
• Dedication
• CONTENTS
• Authors and contributors
• Acknowledgements
• 1 Introduction
• 2 The Planning Process
• 3 Origins of U.S. Law
• 4 Nuisance Law
• 5 Private Land Use Controls
• 6 Zoning Law
• 7 Inserting Flexibility into the Zoning Process
• 8 Due Process and Equal Protection
• 9 Possessory Takings
• 10 Regulatory Takings
• 11 The First Amendment
• 12 Affordable Housing
• 13 Growth Management
• 14 Historic Preservation and Urban Design
• Index