LAND USE PLANNING & THE RULE OF LAW (Part VI, Continued)
In America, local governments are expected to operate in accordance with basic democratic principles, such as rule of law, responsiveness, accountability and due process.
Land use planning directly impacts the quality of life of all town citizens. But, because land use planning is a relatively complex public service, how it is performed is a good test of the quality of the application of land use regulations in small New York towns.
Importantly, as described in Part I of this series, there are 932 towns in New York State. This case study of the Town of Colden will hopefully raise this question: How wide-spread, across New York State, are the small town public management challenges identified in the Town of Colden?
As detailed in the last Small Town Civics posting it appears, based on a review of Colden Planning Board meeting minutes, that planning board members, with the apparent acquiescence of the town board, for 22 years systematically approved amendments to the town’s zoning code without bothering to base those changes on the policy guidance contained in Colden’s adopted Master Land Use Plan—as required by law.
Instead of basing their actions on the official planning guidance contained in the master plan, the planning board apparently amended the town’s zoning ordinance and approved site plan amendments again and again based on the personal, arbitrary whim of the planning board members.
It appears that in the Town of Colden, planning board members conducted a decades-long planning masquerade.
The purpose of this posting is to identify the causes of the breakdown in the Town of Colden’s land use planning process. Lack of effective managerial oversight by the town’s elected town boards to ensure that they, and the town’s citizens, were getting informed and trustworthy advice from their planning boards, is certainly a contributing factor. But, it also appears a fundamental factor is the lack of planning skills among the town’s planning board members. Until planning board members are properly trained, they are simply unprepared to serve the people of Colden.
How well trained were/are the Town of Colden Planning Board members to perform their duties?
Did the town board adopt a well-designed basic planning course of instruction to train planning board members and ensure they possessed the knowledge and skills needed to give the Colden town board, and the people of Colden, trustworthy land use planning advice ?
To answer these questions, let’s:
1.) Review two reports—one identifying the general lack of planning knowledge and skills among town planning board members in Erie County—and the other declaring the lack of formal training of town planning board members to be “a growing and serious problem” throughout New York State.
2.) Review the amended New York Town Law, Section 271 (Chapter 662 of the Laws of 2006) setting a minimum annual training requirement for planning board members, starting January 1, 2007.
3.) Review state-wide training guidance issued by both the NYS Legislative Commission on Rural Resources and the New York’s Department of State to help all 932 New York town governments implement the amended New York Town Law
EXPOSING THE PROBLEM
Governance in Erie County: A Foundation for Understanding and Action, The Governance Project, SUNY at Buffalo, January, 1996
“New York State delegates to cities, towns and villages the power to establish land use controls….The main activities of the local planning board are to vote recommendations to the municipal governing body regarding zoning changes, comprehensive plans, and perform other duties related to land use.
“It should be noted that nowhere [in NYS laws] is it required that planning be administered by professionals. As a condition of appointment, planning board members need not have any planning experience, opening the way for appointments that are primarily political.
“In most jurisdictions in the county [Erie County] there are ‘non-professional’ planners serving ‘non-professional’ boards.”
“Planning as a professionally-facilitated service of land use regulation and oversight is found only in the largest jurisdictions. Although most towns and villages produced some form of a comprehensive plan using federal funds in the 1960s, most of these plans have never been updated and in many cases, it is reported, they have literally been lost…In the vast majority of smaller towns and villages these activities of planning and zoning remain essentially volunteer efforts of citizen review, recommendation, and regulatory oversight.”
NYS Legislative Commission on Rural Resources, New York Land Use Tools: Counties, Cities, Towns and Villages: A 2008 Survey of Land Use Planning & Regulations in NYS
“An estimated 21,000 people serve on planning bodies across New York and must be kept abreast of planning and zoning principles, practices, case law and statutes; which is a major challenge to say the least…many members of local planning and zoning boards and elected legislative bodies serve without special training in the basic procedures which the successful use of state and local planning laws require. A high percentage also serve without accessible or affordable technical assistance.”
“Except for a few noteworthy efforts by some local governments and associations since 1992 [the year towns were authorized by the state to establish training standards for members of their planning boards] little was done by most municipalities to establish formal training requirements and opportunities for members of their planning and zoning bodies…the general lack of formal preparation of members of local planning and zoning bodies for their specialized roles and responsibilities was a growing and serious problem.”
THE PROBLEM DEFINED
Many planning board members serve without special training required for the successful use of state and local planning laws.
NYS law does not mandate that appointed planning board members successfully complete a specific basic course of instruction.
In 1992, New York towns were authorized to establish training standards for members of their planning boards. Responsibility for making sure their planning board members are capable of giving trustworthy land use planning advice rested squarely with town board members. Many town boards, however, did not take this responsibility seriously.
The inability of town planning boards to give town boards trustworthy land use planning advice is a serious public management problem.
Appointments to planning boards are often based more on the candidate’s political and social connections in the town, than his or her land use planning knowledge and skills.
THE LEGISLATIVE MEMO
As bills become laws in NYS, an official “Memo” tracks the legislative process, adding insights into the content and intent of the law. The Memo accompanying bills A9259 and S6316, the bills that amended the New York Town Law, reads, in part:
“SUMMARY OF PROVISIONS: The bill amends sections of… town law… to set forth training opportunities to be promoted by municipalities for members of their planning and zoning boards. Officials would receive four hours of training per year in a course or courses approved by the applicable legislative body of each town.
“JUSTIFICATION: Currently in the state, many excellent opportunities exist for such planning and zoning officials to receive training to help them more effectively carry out their duties…There is no minimum training standard within the state, however, which results in many municipal officials engaged in municipal planning and zoning who do not receive even basic training.
“Acceptable course subject matter would be identified by the applicable local legislative body…A significant amount and variety of land use training is available throughout the state at no cost to participants, so the four hour minimum set forth in the bill can be obtained with minimal fiscal impact.
“For these reasons, there is a growing consensus among planning federations, local governments, builders’ institutions, insurance companies, economic development corporations, land preservation trusts and environmental groups that well trained municipal planning and zoning board members are essential to maintaining and enhancing the future viability and quality of communities across the state.”
Recognizing that poorly trained planning board members is a widespread problem, the 2006 legislative agenda of the NYS Legislative Commission on Rural Resources—composed of elected members from both the NYS Assembly and the NYS Senate—called for “Promoting training opportunities for municipal planning and zoning officials,” and that the Commission’s research concluded “that members of local planning boards, zoning boards of appeal and county planning boards need and welcome more training so that they can fulfill the duties and responsibilities given to municipalities in the state Constitution.”
Later in 2006, the NYS Assembly and Senate passed a bill signed into law by the governor, effective, January 1, 2007, which reads, in part:
“Each member of the planning board shall complete, at a minimum, four hours of training each year designed to enable such members to more effectively carry out their duties…such training shall be approved by the town board and may include, but not limited to, training provided by a municipality, regional or county planning office or commission, county planning federation, state agency, statewide municipal associations, college or other similar entity.”
The law also identifies the planning board-related duties that will benefit from improved training.
“The planning board may recommend to the town board regulations relating to any subject matter over which the planning board has jurisdiction…[and]…The planning board may review and make recommendations on a proposed town comprehensive plan or amendments thereto…make investigations, maps, reports and recommendations in connection therewith relating to the planning and development of the town as it seems desirable…”
WHAT THE LAW DID NOT DO
The new law does mandate a minimum of four hours of “training” each year. But what the new law does not do leaves a lot of room for town boards to administratively embrace the intent of the law–or—to avoid responsibility for ensuring their planning board members are well trained.
The new law does:
1.) Not specify the basic knowledge and skills planning board members need to carry out their duties.
2.) Not require that the four hours of “training” draw upon a professionally prepared course of instruction;
3.) Not set state-wide minimum “training” standards for planning board members;
4.) Not establish a procedure to hold town boards accountable for making sure their appointed planning board members are well-trained.
WHAT HAPPENED NEXT
Recognizing that the new law was little more than a gentle nudge to engage reluctant town board members, public and private land use planning organizations issued guidance to help towns take seriously their responsibility to increase the competence of their planning boards.
Following passage of the 2006 law, a fact sheet was jointly issued by the Legislative Commission and land use planning organization in and out of state government, “To help answer some commonly asked questions as well as point to sources of training.”
Promoting the Training of Municipal Planning and Zoning Officials
Published by The NYS Legislative Commission on Rural Resources in Cooperation With the
New York Planning Federation; Association of Towns of the State of New York; New York State Conference of Mayors and Municipal Officials; New York State Department of State; New York State Builders Association and the New York Farm Bureau
The fact sheet reads, in part:
“What sort of training is Required? The legislative body for each city, county, town or village approves a course or courses of training for its board members…training can provide either basic skills or can offer new and advanced planning and zoning approaches.
“Where is training currently available? The Department of State, state associations, Pace University, other universities, many counties and municipalities and regional planning councils offer their own training.
“Do municipalities need to notify anyone when they establish a training program for members of their planning and zoning boards, as required by law? No, but municipalities should establish a system for keeping track of training received by board members.”
New York Department of State
The Department of State, Division of Local Government Services’ website (Accessed in 2016) adds the following training guidance for planning board members:
“The amendment to state law, enacted in 2007, is important because members of planning boards and zoning boards of appeals make decisions of major importance.
“The governing body of each town, village, city or county determines what courses, training providers and training formats are acceptable.
“Governing boards are encouraged to pass resolutions approving training from trusted providers…”
What might an effective planning board training program look like? The New York Department of State’s Division of Local Government website offers a menu of professionally designed training course for local planning board members in New York towns.
New York’s Department of State offers a wide range of high quality land use planning courses because most rural governments in New York State do not employ professional planners and, before most rural advisory planning board members can competently do their job, they need to gain basic land use planning knowledge and skills.
Here is a partial 2016 list of available Department of State courses. These courses are presented by Department of State planners and attorneys at conferences and workshops across the state.
Ethical Standards for Planning and Zoning Boards
Open Space Planning
Planning &Zoning, an Introduction
Planning Board Overview
Public Meetings & Hearings
The Statewide Model
Prior to 2007, town boards had the authority, but no legal responsibility, to ensure their planning boards received the training needed to render competent and trustworthy land use planning advice. Untrained planning boards were all too common in New York towns.
Since 2007, however, town boards are legally responsible to provide courses of instruction for their planning board members including at least four hours of such instruction each year.
Professionally designed courses, presented by trusted training providers and delivering the basic planning knowledge and skills needed by planning board members, are widely available.
With the 2006 New York Town law amendments, the governor, the state legislature, New York’s Legislative Commission on Rural resources and the New York Department of State’s Division of Local Government Services all agree that the elected members of town governments in the state:
1.) Are responsible for providing planning board members a well-designed, town board-approved, course, or courses, of training from trusted providers.
2.) Are responsible for keeping records to track the training progress of planning board members.
Planning Board Training in the Town of Colden
How has the Town of Colden, after 2006, trained its planning board members?
A review of those official Colden Planning Board meeting minutes, from 2007 to 2016, addressing training provides these insights into the conduct of the town’s planning board training program.
6/17/2008 Minutes: TVGA Consultant, architecture and engineering firm in Buffalo, to hold training sessions in Concord for PB members. Two, two-hour sessions will fulfill training requirement.
1/20/2009 Minutes: Attached is 1/6/09 memo from the Erie County Planning & Environment Department regarding available on-line training courses. (NOTE: this memo is not mentioned or discussed in the actual minutes).
1/18/2010 Minutes: Chairman asked for training suggestions from planning board members.
1/19/2010 Minutes : A planning board member is willing to share training info to help make training more effective and involve a local provider. Another planning board member is reported to have said that he will not attend any sessions regarding working more effectively with others and finds self-evaluation not necessary.
2/16/2010 Minutes: A guest speaker provides a one-hour presentation on historical preservation.
6/15/2010 Minutes: A training session to be held on June 16th at the Niagara Community College. See chairman for details.
7/20/2010 Minutes: August meeting to be a training session on confronting NIMBY.
8/17/2010 Minutes: Maybe a training session is possible in the Town of Holland.
9/21/2010 Minutes: In November a planning board member will give a one hour session on hydrofracking.
1/18/2011 Minutes: The chairman is looking for training session ideas from the planning board.
9/17/2013 Minutes: Chairman announces a lecture will be held at Canisius College on hydrofracking. There is an upcoming training session at Erie County Community College.
10/21/2014 Minutes: Chairman says there is potential training at BOCES in Salamanca.
1/19/2016 Minutes: Travel dollars available for planning board members to attend relevant training sessions.
From this review we may conclude:
1.) The concept of a basic course of instruction adopted by the Colden Town Board and targeting the skills and knowledge board member need to effectively perform their duties, is totally absent.
2.) Instead of a well-designed course of instruction, the town’s so-called training events add-up to a random, catch-catch-can scheme to allow planning board members to get their annual training tickets punched.
Planning Board Training Records.
In March 2015, a Freedom of Information Request was filed with the Colden Town Clerk, that read,
“I hereby make application to examine the following record: For the last five years (2010-2014) the records describing the annual training received by Town of Colden planning board members.”
In response to that request, I received:
Member #1: 2013 only, workshop with town lawyer; video conference, Clemson School of Agriculture and Forestry; agricultural district training by Erie County Department of Planning & Environment.
Member #2: 2013 only, planning and zoning training from Jaeckle, Fleischmann & Mugel.
Member #3: 2010 only, confronting NIMBYs, presented by the Erie County Department of Planning & Environment.
Member #4: 2010, confronting NIMBYs, presented by the Erie County Department of Planning & Environment; 2013, farmland protection presented by the Orleans County Department of Planning and Development; 2013, planning and zoning training from Jaeckle, Fleischmann & Mugel; 2014 planning and zoning training from Jaeckle, Fleischmann & Mugel; 2014, SEQR Training presented by the Genesee County & Wyoming County.
Member #5: 2008, SEQRA and site plan review, presented by TVGA Consultants; 2008, Farmland protection/right to farm, mining permits, presented by TVGA Consultants; 2013, 8-hour local government planning workshop presented by the Genesee/Finger Lakes Regional Planning Council; 2014, 5.5-hour local government planning workshop presented by the Genesee/Finger Lakes Regional Planning Council; 2014, 8-hours of citizen planner training presented by the University at Buffalo Architecture and Planning department.
Member #6: No training records provided.
Member #7: No training records provided.
Here again, the concept of a basic course of instruction adopted by the Colden Town Board and targeting the skills and knowledge board member need to effectively perform their duties, is totally absent.
Planning Board Personnel Records
In June 2016, a Freedom of Information Request was filed with the Colden Town Clerk, that read,
“I hereby make application to examine the following record: In filling past vacancies on its planning board and environmental board, the Town of Colden has mailed to each town household a candidates solicitation notice announcing vacancies and including the requirements that applicants submit to the town clerk a letter of interest and a resume for review by the town board.
“It is requested that I be provided copies of the letters of interest and resumes received by the town clerk from all current members of the planning board.”
In response to this request, I received:
o The letter of interest and resume for only two of the seven current planning board members; and,
o For the other five planning board members, only the letter of interest—without a resume.
Apparently, it is optional for planning board candidates to actually supply resumes for review by the town board prior to their appointment.
The above training records are not only incomplete, they also indicate the town lacks a coherent, professionally designed basic training program capable of providing the skills and knowledge needed by planning board members.
Instead, these records indicate that any collection of hodge-podge, catch-catch-can planning-related “training” is accepted by the town board—the body that is, by law, responsible for adopting a well-designed course of instruction for its planning board members.
Is this the sort of administrative behavior the amended New York Town Law had in mind?
The Town of Colden not only failed to implement a valid comprehensive land use planning process following its adoption of a master land use plan in 1993, after 2007 (See Part VI), the town then mocked the spirit of the 2006 NYS Town Law requiring course-based planning board training.
Land use planning is NYS an ongoing process, not an isolated action that is then forgotten. An example: The Town of Colden adopted a master land use plan in 1993 and then ignored the plan for the next 23 years.
An example: Each year planning board members get their annual four-hour tickets punched by attending stand-alone, helter-skelter events—not incremental segments of a coherent, meaningful land use planning curriculum.
By failing to recognize the dangers associated with reliance for land use planning advice from an untrained planning board, the Colden Town Board abandoned their public management responsibilities to ensure that the citizens of the town are served by competent public officials.
Rather than adopt and implement an effective planning board training program, the town allowed planning board members to conduct a ticket-punching scheme that deliberately avoided any serious attempt to ensure the planning board members are capable of delivering reliable land use planning advice to the elected town board.
According to the New York State Constitution, New York town administrators are responsible for the protection, order, conduct, safety, health and well-being of persons and property. Towns have been granted land use regulation powers from the state to fulfil these responsibilities. But it appears, with regard to training the planning board, Town of Colden officials have not taken these responsibilities seriously.
The dismal land use planning procedures identified in the Town of Colden—failure to base land use decisions on the adopted town master plan and the failure to implement an effective planning board training program confirms the finding of the 1996 UB report that, from top to bottom, Colden’s land use planning procedures reflect the work of amatures.
No trained public administrator would knowingly appoint to a planning board, even on a part-time, advisory basis, persons lacking the knowledge and skills to perform his or her assigned duties and then, to make matters worse, fail to provide the training resources and program to ensure the appointees would be competent to render trustworthy land use planning advice.
A FINAL QUESTION
Official Misconduct, a misdemeanor offense under the New York Penal Law, Title L, Offenses Against Public Administration, Article 195, reads:
“A public official is guilty of official misconduct when, with intent to obtain a benefit, or deprive another person of a benefit, he knowingly refrains from performing a duty which is imposed upon him by law or is clearly inherent in the nature of his office.”
QUESTION: By failing to ensure that their appointed members to the Town of Colden Planning Board received the training prescribed by the State of New York, has the Town of Colden deprived its citizens the benefits to be derived from a properly trained land use planning board?
Submitted by Ronald Fraser, Small Town Civics administrator
Copyright 2017 Ronald Fraser All Rights Reserved
[whohit]In Search of Democracy Part VI[/whohit]