Summary of State Land Use Planning Laws
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IBHS has created a PowerPoint presentation about the new 2009 Summary of State Land Use Planning Laws, complete with speaker notes, color-coded maps, and other documents that outline which states require plans, which states specify elements that should be included in a plan, and which plans require a natural hazards element. Please feel free to share this message and/or information with colleagues who may find information about state land use planning laws useful.
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Summary of State Land Use Planning Laws
- 1. Prepared by: Jim Schwab, AICP Manager, APA Hazards Planning Research Center Senior Research Associate American Planning Association and Institute for Business & Home Safety http://www.DisasterSafety.org/text.asp?id=land_use_planning Summary of State Land Use Planning Laws 2010 Edition
- 8. Summary of State Land Use Planning Laws
- 10. Matrix 1: General Planning Provisions
- 11. Matrix 1: General Planning Provisions
- 13. Matrix 2: Natural Hazards
- 14. Matrix 2: Natural Hazards
- 15. Specification of Plan Elements Data current as of January 2010 Specify Suggest Neither
- 16. Planning Required or Permissive Data current as of January 2010 All Required Some Required Permissive
- 17. Internal Consistency Data current as of January 2010 Require Don't Require
- 18. Vertical and Horizontal Consistency Data current as of January 2010 Vertical Only Horizontal Only Both Neither
- 19. Natural Hazards Element Data current as of January 2010 Require Don't Require
Hinweis der Redaktion
- The Summary of State Land Use Planning Laws resulted from collaboration between the Institute for Business & Home Safety (IBHS) and the American Planning Association (APA). It is important to review the role that each plays with regard to planning for natural hazards and how they came together on this project. IBHS is a national nonprofit association that engages in communication, education, engineering and research. Its members are insurers and reinsurers that conduct business in the United States or reinsure risks located in the United States. Associate membership is open to all others who support their mission to reduce the social and economic effects of natural disasters and other property losses by conducting research and advocating improved construction, maintenance and preparation practices.
- IBHS emphasizes the message that it matters both how you build and where you build plus how well you maintain.
- To help achieve that mission, IBHS partnered with the American Planning Association, a nonprofit public interest and research organization committed to urban, suburban, regional, and rural planning. APA members are predominantly planning professionals or citizens who are members of local planning commissions and zoning boards of appeal. APA and its professional institute, the American Institute of Certified Planners, advance the art and science of planning to meet the needs of people and society. As part of its National Centers for Planning, APA has created the Hazards Planning Research Center to coordinate policy, research, education, and outreach on issues related to hazards. This builds on a past legacy of Planning Advisory Service Reports addressing planning for hazards, which include: Subdivision Design in Flood Hazard Areas (No. 473), 1997 Planning for Post-Disaster Recovery and Reconstruction (No. 483/484), 1998 Planning for Wildfires (No. 529/530), 2005 Planning for the Unexpected: Land-Use Development and Risk (No. 531), 2005 Landslide Hazards and Planning (No. 533/534), 2005 APA worked with FEMA on major report, Planning for Post-Disaster Recovery and Reconstruction
- In the spring of 2001, the IBHS Safe Growth Committee conducted a survey of nearly 1,500 municipal-level planners to determine the public demand for hazards planning and the priority placed on inclusion of natural hazards by elected officials. The survey, conducted using the Community Land Use Evaluation for Natural Hazards Questionnaire developed by IBHS, APA and AICP, returned results showing that in places where state-level support for planning is strong, communities tend to do better at considering natural hazards in local plans. The PDF version of this study is included on the State Land Use Planning webpage ( http://www.DisasterSafety.org/text.asp?id=land_use_planning ) .
- Based on both the survey results and related research by University of North Carolina Professor Emeritus Ray Burby, author of several major books on hazards planning i , what is needed are state mandated local comprehensive plans and a call for a hazards element in local plans, or a requirement for consistency between state & local policies. Professor Burby has also researched, for IBHS, insured disaster losses as they relate to planning. In the years studied, the lowest losses tended to be associated with mandated planning accompanied by urban growth boundaries. On the other hand, in his findings, urban growth boundaries unaccompanied by planning for natural hazards actually exacerbated losses, presumably because growth pressure pushed development onto increasingly marginal lands within the defined urban areas. Added incentive: The Disaster Mitigation Act of 2000, for the first time, made a state or local government’s eligibility for hazard mitigation grants from FEMA dependent on the approval by FEMA of an adopted hazard mitigation plan. These are all-hazards plans that must adequately address all significant local hazards and identify mitigation efforts to address them. The act also provided for Pre-Disaster Mitigation (PDM) grants on a competitive base in addition to the existing Hazard Mitigation Grant Program (HMGP), which makes grants for hazard mitigation projects available as a percentage of overall assistance after a disaster has occurred. In effect, the availability of the grants is tied to some degree of state and local accountability for planning to reduce losses. References: i Burby, Raymond J., and Peter J. May. “Making Governments Plan: State Experiments in Managing Land Use.” Baltimore: Johns Hopkins University Press, 1997. Burby, Raymond J. “Hurricane Katrina and the Paradoxes of Government Disaster Policy: Bringing about Wise Governmental Decisions for Hazardous Areas,” Annals of the American Academy of Political and Social Science, March 2006.
- In 2002, IBHS contracted with APA to produce the study. Initially, this involved reviewing the planning enabling and zoning enabling legislation of all 50 states, and has involved examining all changes in such legislation annually since then.
- An important part of understanding our current state statutes is being able to accurately interpret the relationship between different provisions within the set of statutes in force in a particular state. One example of this is the requirement for various kinds of consistency: Internal consistency: whether a zoning ordinance must comply with the provisions of a comprehensive (or general or master) plan Vertical consistency: the need for plans of subsidiary jurisdictions to be compatible with state or regional plans Horizontal consistency: the need for local plans not to conflict with those of neighboring jurisdictions.
- Note to instructors/speakers: It might be wise, given the inherent complexity of placing either entire matrix on a screen, to provide students or workshop attendees with printouts of each for this portion of the presentation. You can then walk them through what they have in hand, explaining the salient points as desired. This would also allow for appropriate adaptations of the two spreadsheets by orienting them on larger sheets or otherwise achieving a more user-friendly, comfortable format, in combination with a booklet printout of the keycode.
- About the matrix: 1-3) These columns identify any statutory guidelines for a state plan, and whether they include provisions for a land-use element or for a hazard mitigation element. These are different from the state producing a hazard mitigation plan under the Disaster Mitigation Act or previous federal disaster legislation in order to gain eligibility for federal funds under FEMA’s Hazard Mitigation Grant Program. The question here is whether any required or existing state plan includes these provisions. Obviously, such state planning could also serve the purposes of the federal program, or vice versa, but many states have no guidelines for including such components in a state plan. 4) This provides a statutory citation to the state code section containing the state’s planning enabling legislation for local communities. Planning enabling legislation gives local governments authority to plan, which is different from laws authorizing or requiring a state plan. Enabling legislation began as a means of conferring planning authority on local governments, but in many states has evolved into mandates for local governments to produce comprehensive plans. 5) This column offers an informed evaluation of the strength of the state role in guiding local planning, from purely permissive (1) to a strong role mandating planning with clear guidance (3). There is a subjective element to any such rating, but by and large, scholars of growth management agree on the general contours. 6-7) These two columns discuss whether a state has mandatory local planning and what types of jurisdictions are covered. For instance, some states may require cities of a certain size to plan, and may or may not include counties.
- 6-7) These two columns discuss whether a state has mandatory local planning and what types of jurisdictions are covered. For instance, some states may require cities of a certain size to plan, and may or may not include counties. 8) Whether a plan must be formally adopted by the local legislative body in order to become effective is critical to its legal standing. In some states, the local legislature need not adopt the plan as law, and responsibility is left to the planning commission to make it official. That, however, typically puts the plan in a weaker legal and political position than if the city council has had to debate and adopt the plan. 9) Internal consistency refers to the need for the zoning ordinance to conform to the local comprehensive plan. Many state laws say zoning must be consistent with the comprehensive plan but are somewhat watered down in actual application by the ways in which state courts have interpreted consistency. To understand how this principle is applied in a particular state, one must consider both the language of the statute and the judicial interpretation of the language. This places a premium on clarity in the drafting of such statutes if legislators want to ensure that the consistency that is practiced conforms to the policy result they intended. 10) Vertical consistency means the local plan must not conflict with the plans of superior jurisdictions. For example, a municipal plan may not conflict with a county or regional plan or perhaps with a state plan under provisions requiring vertical consistency. This point is particularly salient in mandatory planning states that review local plans, such as Florida. 11) Horizontal consistency refers to mandates that communities not adopt plans whose provisions conflict with those of neighboring jurisdictions. Such requirements generally provide for some means of resolving conflicts. 12) State planning statutes vary widely in their specificity as to what constitutes a plan, ranging from no definition at all to highly detailed specifications of specific required elements with specific details required within them. Florida, for example, provides extensive detail in this regard, while Iowa has no specifications regarding plan elements. Between those two extremes are situations where states may suggest particular elements without mandating them, or may mandate some while suggesting others.
- Having established the general framework, APA then chose to drill down into the details of the statutes to determine the extent to which states sought to address natural hazards, with or without planning mandates. That is the purpose of the second matrix in the Summary (beginning on next slide).
- Column 1 cites the specific paragraphs or subsections that deal directly with natural hazards, if they exist. If not, the cell simply says “N/A” for “not applicable.” Column 2 indicates which jurisdictions are required to address hazards or include such an element in their comprehensive plan. 3-4) Column 3 indicates whether the state mandates that some specific element within the plan must address natural or other hazards in some way. This does not necessarily mean an entirely separate hazards element, however, because a state (Maryland, for example) can specify such content within another element (in that case, land use). Hence, column 4 indicates whether the law specifically requires a discrete hazards element, as opposed to merely requiring that hazards be addressed in some other element.
- 5-6) These two columns address, first, what categories of jurisdictions fall under such requirements, and second, what specific hazards they must address. In the former case, for example, several southeastern states apply such requirements only in defined coastal areas. The theory, apparently, is that these coastal areas are more likely to be affected severely by coastal hazards, such as hurricanes, than upland areas away from the coast. States are often very clear about specific hazards that are a focus of state policy concern, such as floods, coastal storms, or earthquakes. However, federal requirements in such laws as the Disaster Mitigation Act are steadily moving toward an all-hazards approach. Making local plan elements reusable as DMA-eligible hazard mitigation plans may require moving in that direction at the state level as well. 7) Post-disaster recovery as an element of local comprehensive planning addressing hazards is most highly developed as a statutory provision in Florida. South Carolina is the only other state that addresses this question. 8) Many states offer both general technical assistance for local planning efforts and specific technical assistance for communities developing hazards elements. Local capacity to conduct hazard identification and risk assessment is often weak or lodged entirely within the office of the emergency manager, who may have little or no contact with planners. The availability of good state technical assistance can go far in assuring some level of quality in hazard-related plan provisions, particularly where state agencies provide basic data and mapping capabilities for such problems as slope stability, earthquake fault zones, and flooding.
- Specify (blue) means: Elements are delineated by name in some level of detail. The most detailed specify what information each element must contain. Planning may not be required, but the elements are if you choose to plan. May not be the same for all types of jurisdictions. North Carolina applies specifications only to coastal areas. May appear in administrative rules rather than in code (WA, OR). Suggest (red) means the statute recommends certain elements without requiring them. Neither (white) - a few states say nothing in the statute about the contents of the plan.
- Permissive means the state enabling legislation has granted authority to local governments to do comprehensive planning but does not require that they do so. In the original wave of state planning enabling legislation in the 1920s, there was a need to make clear that local governments had authority under state law to undertake planning and, through zoning enabling legislation, to regulate land use as well. States in red are those that require all local jurisdictions to prepare a comprehensive plan. Those in green require particular classes of local jurisdictions to do so. Variations in structure account for some differences as well. For example, while Alaska requires plans of coastal districts, it does not impose the same requirements on villages. Hawaii has only four counties, which must prepare county plans that are part of a state plan.
- Internal consistency means that the state requires that zoning regulations conform with the comprehensive plan. But these caveats apply: Courts can sometimes invalidate the apparent meaning of the statute by watering down the meaning of consistency or of the term “comprehensive plan.” Hence, statutory language can be misleading depending on court interpretations of phrases like “shall be in accordance with the comprehensive plan.” Penalties for failure of consistency may also vary. In 2002, a Florida court ruled that a developer who knowingly obtained zoning approval inconsistent with a local comprehensive plan must tear down the building, the first ruling of its kind. See Pinecrest Lakes v. Shidel, 802 so.2d 486 (Fla. 2002).
- Vertical consistency: Local plans must be consistent with, or comply with, plans of larger jurisdictions, such as counties or the state. This may range from simple review without sanction (Georgia) to the power to reject a plan that conflicts with the state or regional plan or with state goals (Florida, Oregon). Horizontal consistency: Local plan must be consistent with those of neighboring jurisdictions. This often means that some agency may have a review function that allows it to require some type of mutual accommodation if conflicting jurisdictions are to get their plans approved, but it may also be largely prescriptive, providing the threat of litigation where conflicting plans exist. Either requirement may apply to all or only to specified types of jurisdictions within the state. For instance, Colorado requires compatibility for the mass transportation elements of county and regional master plans. Washington applies horizontal consistency to high-growth county and city plans, but not to shoreline municipal plans.
- The states in blue do not all require a separate natural hazards element in the comprehensive plan, but all do require that the issue be addressed either in a discrete element or within some other specified element. For example: Maryland requires its inclusion in a Sensitive Areas element. California, Arizona, and Nevada use the term “safety element” to mean essentially the same thing, and all include seismic safety in the description of the element. Not all these states apply the requirement universally. Florida, South Carolina, and North Carolina, for instance, apply the requirement to coastal counties. Arizona and Nevada differentiate their requirements for safety elements according to the size of jurisdictions. Colorado does not require planning by local government, but requires a hazards element if the jurisdiction prepares a plan. A few other states suggest such elements without requiring them to be part of the local comprehensive plan.
- This could provide a good fertile area for discussion within the class. What can and should local planners be expected to know, and what sort of assistance do they need to comply with expectations that they will address natural hazards and/or disaster recovery through the planning process? How dependent are they, and should they be, on other disciplines in developing such plans? The whole subject of technical assistance opens up the question of the planner’s role in relation to various kinds of technical knowledge needed in the planning arena.
- Post-disaster recovery planning has taken on a special poignancy since Hurricane Katrina. Ideally, it has been envisioned as a process that can help to incorporate elements of sustainability and long-term hazard mitigation into local planning in order to achieve more resilient communities. Hazard mitigation is too often a secondary concern in the rush to rebuild. The aftermath of Hurricanes Katrina and Rita became initiations by ordeal for Long-Term Community Recovery (ESF-14), a new Emergency Support Function of the National Response Plan (NRP). The role of the NRP, adopted in December 2004, is to delineate which agencies serve as the lead for each of 15 Emergency Support Functions that govern federal responses to disasters. Federal rules provide criteria for determining how much aid goes to which communities to develop plans for long-term recovery after a presidentially declared disaster. Dozens of parishes in Louisiana and counties in Mississippi, Texas, and Alabama received such assistance in the months following the two major Gulf Coast hurricanes. Most of this aid was in the form of professional planning assistance provided either directly by FEMA or by FEMA through contractors to aid communities in deciding how to plan their futures. All of this is a backdrop to understand 1) the role of state-mandated post-storm recovery plans, 2) the potential for jurisdictions to develop such plans on their own prior to a disaster, and 3) the option of even adopting an ordinance spelling how post-disaster recovery will be managed.
- All current materials appear elsewhere on the State Land Use Planning Laws webpage ( http://www.DisasterSafety.org/text.asp?id=land_use_planning ) .