Land Use Planning & the Rule of Law
In America, local governments are expected to operate in accordance with traditional democratic principles, such as rule of law, responsiveness, accountability and due process.
Land use planning in the Town of Colden 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 public administration in small towns.
Let’s first look at the official documents that shape New York State’s comprehensive land use planning process. Then we can better evaluate the planning process practiced in the Town of Colden from 1993 to 2015.
Land Use Planning in New York State
New York Town Law states:
“Among the most important powers and duties granted by the legislature to a town government is the authority and responsibility to undertake town comprehensive planning and to regulate land use for the purpose of protecting the public health, safety and general welfare of its citizens.
“Effect of adoption of the comprehensive plan. All town land use regulations must be in accordance with a comprehensive plan…”
It is the responsibility of each town’s elected town board to use this state-granted authority to establish a high quality comprehensive planning process for the purpose of protecting the public health, safety and general welfare of its citizens. A well-implemented land use planning process will provide the town’s citizens with better informed land use decisions; more uniform enforcement of land use regulations; and it will replace politically motivated, arbitrary and seat-of-the pants rulings by members of town boards and planning boards.
To assist elected town boards establish and then effectively manage their land use planning process, the New York Department of State, Division of Local Government Services has published a number of excellent training and planning documents especially helpful for small, rural towns, including, a publication titled, Zoning and the Comprehensive Plan. Here we find these helpful insights:
“Early zoning enabling laws were fashioned with the view that zoning risked being declared unconstitutional because it had the potential to severely limit zealously-guarded property rights. To safeguard against that outcome, the [enabling law] drafters required the actual [zoning] regulations to be based on a logical and ‘comprehensive plan’ for the betterment of the whole community.
“The comprehensive plan requirement also provided the means to remove the planning process from immediate political considerations and allow for more objective analysis of community growth…and…The comprehensive plan should provide the backbone for the local zoning law.
“To understand the power to zone, one must understand the comprehensive plan. The comprehensive plan is the culmination of a planning process that establishes the official land use policy of a community and presents goals and a vision for the future that guides official decision-making.
“Once a comprehensive plan is adopted… all land use regulations of the community must be consistent with the comprehensive plan. In the future, the plan must be consulted prior to adoption or amendment of any land use regulation.”
Comprehensive Land Use Planning Principles
(1.) The town’s comprehensive plan sets out official land use policies to guide future town board, planning board and environmental board land use decisions.
(2.) The purpose of these land use policies is to promote the health, safety and wellbeing of the entire community.
(3) When the town board, planning board or environmental board considers amendments to the town’s zoning code or reviewing site development plans, these decisions must reflect the guidance contained in the town’s comprehensive land use plan.
(4). When the town board, planning board or environmental board considers amendments to the town’s zoning code or reviewing site development plans, these decisions must not reflect the personal biases or personal interests of individual board members.
(5) Comprehensive land use planning is an ongoing process. The adoption of a comprehensive plan is the beginning of the town’s land use planning process. Afterwards, when the town, planning or environmental boards consider amending the town’s zoning code or reviewing a proposed site development plan, board members must consult the town’s comprehensive plan for planning guidance. Why?
Because the legitimacy of the town’s actions depends on it.
Only with deliberate consultation by the planning board’s members to ensure that the proposed zoning ordinance or site plan amendments are “in accordance with” the town’s comprehensive land use plan, can the planning board’s actions gain legal legitimacy.
Once this master plan-zoning-site plan linkage is broken, the actions of the planning board become random, arbitrary decisions.
How Does the Town of Colden Measure up?
The Town of Colden has adopted two comprehensive land use plans in the past, one in 1970 and an update to that plan in 1992.
A Comprehensive Master Plan, Town of Colden, Vol. 2, Master Plan, 1970
Funded in large part by federal HUD 701 planning money, this ambitious 1960s-era plan, stressed continuation of the post-WWII population growth (projected population growth to 4,040 by 1990) and the physical development potentials of the town. For example, the plan included a one mile long Route 240 controlled access bypass to the east of the Colden Hamlet to both relieve excessive traffic passing through the hamlet and to promote development of an attractive community service center.
2002 Master Plan, Town of Colden, NY
Building on the 1970 plan, the 2002 plan was adopted by the Colden Planning Board on April 21, 1992 in map form, and the final Summary Report on the 2002 Master Plan is dated September 1993.
Unlike the 1970 plan, this plan recognized that the commercial and population growth of the Town of Colden, largely due to the lack of sewer and water infrastructure, would be much slower than previously expected. The ten-year plan projected the town’s 1990 population of 2,899 to grow to 3,300 by 2002. (The town’s 2015 population was estimated to be 3,268)
A consultant’s survey of the town’s citizens, to gather their likes and dislikes with the draft master plan, found that citizens favored limited planned growth; keeping the town’s rural identity; the concentration of businesses along Route 240; a creek walkway and the idea of a community center.
Instead of the large growth projected in 1970, the 2002 plan took a more modest approach and shifts its focus to protecting the rural amenities that residents say had drawn them to Colden and defining the goals and values held by the people of Colden as they relate to land use planning and development of the town.
Colden’s Zoning Ordinance.
Following the adoption of the 2002 Master Plan, the planning consultant worked through 1993 with the town to bring its zoning ordinance into conformance with the master plan.
Article II of the Town of Colden Code, Zoning, Chapter 108, states:
“It is the intent of the comprehensive zoning plan hereby established to implement the comprehensive Master Plan 2002 of the Town of Colden…[it]…is adopted in order to promote and protect public health, safety, comfort, convenience, prosperity and other aspects of the general welfare…[and encourage]…the most appropriate use of land in the most desirable manner.
“Enactment of this chapter [Chapter 108 of the town’s zoning code], or any amendments thereto, shall be in accordance with Master Plan 2002 of the Town of Colden as enacted in 1992, as may be amended by the Town Planning Board from time to time.”
Performance of the Colden Planning Board, 1993-2016
To evaluate the manner in which the Colden Planning Board has implemented the town’s 2002 Master Plan, I have reviewed nearly 200 official planning board meeting minutes, maintained in the Colden Town Clerk’s office, for the period 1993 to 2015. I wanted to identify how often the planning board, when meeting to consider proposed amendments to the zoning code or site plans, consulted the master plan for planning guidance and to ensure the proposed amendments were in accordance with the master plan.
Here is a summary of that review.
According to the planning board meeting minutes, many scores of amendments to the zoning code–some minor word changes as well as substantive amendments (a new wind energy code, for example) and site plans —were proposed and adopted by the planning board during this 22 year period. Not once do these minutes contain the term “master plan.” Nor is there any indication that the planning board members actually consulted the master plan for planning guidance.
Not once is there reference in these meeting minutes to a discussion among planning board members as to how, or whether, a proposed zoning code amendment was in accordance with the master plan—as required by state law and also mandated in Article II of the town’s own zoning code (see above).
A Planning Masquerade?
It appears, based on the content of these official planning board 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 the 2002 Master Plan—as required by law.
It appears, in other words, that planning board members conducted a planning masquerade—on the surface they appeared to be conducting a valid comprehensive planning process in accord with the town’s adopted master plan—but, in fact, that was not the case.
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.
Not until 2016 does the term “master plan” appear in the planning board’s meeting minutes. Minutes of the February 16, 2016 planning board meeting states:
“The comprehensive plan was approved in the early 1990’s to the year 2002, and is usually reevaluated every 5-7 years. [The planning board chairman] would like to have the plan updated.”
In fact, the planning board’s own meeting minutes show that the plan adopted in 2002 was not reevaluated or updated from1993 to 2015
What this review of the Town of Colden planning board meeting minutes suggests is that a master plan was adopted in 1992 but an effective town planning process to implement that plan was never established.
Until the town adopts a binding, written and enforceable comprehensive planning process, including a professionally designed training course to build the needed skills among planning board members, a new/revised master plan is not likely to be worth the trouble.
The master plan is not the problem. The failure of the Town of Colden to adopt an effective planning process is the problem.
In the next Small Town Civics posting we will examine possible explanations for the breakdown of the planning process in the Town of Colden.
Submitted by Ronald Fraser, Small Town Civics administrator.
Copyright 2017 Ronald Fraser All Rights Reserved
[whohit]In Search of Democracy Part VI[/whohit]