TABLE OF CONTENTS

COMPREHENSIVE PLANNING: THE BASICS *

LEGAL EFFECT *

PLAN PREPARATION AND ADOPTION *

PUBLIC PARTICIPATION *

COMPREHENSIVE PLAN CONTENTS *

SUGGESTED TOPICS *

THE PLANNING PROCESS *

CRITICAL ISSUES AND UNIQUE OPPORTUNITIES *

THE "IN ACCORDANCE WITH" REQUIREMENT *

COMPREHENSIVE PLANNING RATIONALE *

DEVIATING FROM THE COMPREHENSIVE PLAN *

LEGAL BENEFITS OF CONFORMING TO THE COMPREHENSIVE PLAN *

SUMMARY AND REFERENCES *

QUIZ *

State statutes require that zoning and all land use regulations conform to the locality's comprehensive plan. Comprehensive plans have also been called a master plan, land use plan, and development plan. The statutes use the term "comprehensive plan" and define what a comprehensive plan is using these words: '"comprehensive plan' means the materials, written and/or graphic, including but not limited to maps, charts, studies, resolutions, reports, and other descriptive material that identify the goals, objectives, principles, guidelines, policies, standards, devices, and instruments for the protection, enhancement, growth, and development" of the municipality.

Although localities are not required to adopt comprehensive plans or to keep them up to date, they are seriously encouraged to do so. The intent of the statute is to "encourage, but not to require, the preparation and adoption of a comprehensive plan pursuant to this section. Nothing herein shall be deemed to affect the status or validity of existing master plans, comprehensive plans, or land use plans." Village Law § 7-722(1)(h); Town Law § 272-a (1)(h); General City Law § 28-a (2)(h).

These statutes have this to say about comprehensive planning and zoning:

If a community has not adopted an explicit comprehensive plan, the courts will look for "all relevant evidence" to determine whether a challenged land use regulation is or is not in conformance with the requirement for comprehensive planning. The local legislature may adopt a land use regulation that does not conform to the formal comprehensive plan, if it provides a clear planning rationale for its adoption. When a locality adopts a comprehensive plan, the statutes recommend, but do not require, that certain components be included.

The relationship between the comprehensive plan, the zoning law, and the local boards that implement the land use system is circular. The comprehensive plan establishes the objectives that the community wants to achieve. The zoning law sets forth the regulations designed to achieve the objectives of the comprehensive plan. The local boards are then responsible for implementing the zoning law and overseeing the administration of the land use system. Their decisions are to be based on the standards contained in the zoning law and designed to accomplish the objectives contained in the comprehensive plan.

The legal effect of a comprehensive plan is twofold. First, all land use regulations of a community must be consistent with the plan. State law defines "land use regulation" to include any ordinance or local law enacted by a community for the regulation of any aspect of land use and community resource protection. Thus, any provision of a community's municipal code concerning land use, such as site plan and subdivision regulations or wetlands ordinances, must be consistent with the goals, objectives, and strategies set forth by the comprehensive plan. Second, where an agency of the municipal, county, state, or federal government chooses to undertake a capital project, the agency's plans must consider the goals, objectives, and strategies of the comprehensive plan. Other governmental agencies, such as state agencies, must consider the local comprehensive plan in shaping their capital projects within the locality. If, for example, the State Department of Transportation plans to improve or build a road, bridge, or highway in community and the community has a formally adopted comprehensive plan, the department would be required to consider that plan and its transportation objectives before proceeding with the project. Without this requirement, government agencies could undermine the objectives of a community's comprehensive plan by undertaking capital projects that openly conflict with the community's comprehensive plan.

General City Law § 28-a; Town Law § 272-a; and Village Law 7-722 provide communities with extensive flexibility to undertake comprehensive planning. These state statutes discuss the importance of comprehensive planning, suggest plan components, and describe the procedure for adoption.

1. The comprehensive plan may be prepared by the local legislature or they may designate the planning board, or a specially constituted board which must include one or more members of the planning board.
2. Public hearings and other open meetings may be held prior to adoption. At least one public hearing must be held by the board preparing the plan.
3. Prior to its adoption, the comprehensive plan must be subjected to environmental review under the State Environmental Quality Review Act (SEQRA), and must be found to be consistent with any agricultural district in the community.
4. Submit to county or regional agency for comment.
5. The comprehensive plan is to be adopted by the local legislature by resolution.
6. Following its adoption, the plan must be filed in accordance with the law.

State law has found that an "open, responsible and flexible planning process is essential" to the preparation of the comprehensive plan. In order to achieve public consensus and support, there must be public input during all phases of the development of the comprehensive plan.

State law allows for the board preparing the plan to conduct "meetings as it deems necessary to assure full opportunity for citizen participation" in the preparation of the plan or any amendment to an existing plan. At a minimum, the board preparing the comprehensive plan must hold one public hearing.

Meetings can be conducted on a community-wide basis, in neighborhoods, over long weekends, or in series. Their purpose is to gather all available ideas and secure support of the entire community. Committees and subcommittees can be formed to conduct surveys and to prepare reports on public needs and visions. Special efforts can be made to identify all groups with a stake in the community's future and to involve key representatives in the preparation of the plan. Such special representatives may even be appointed to the special board that drafts the plan or may be invited to join an advisory committee to assist the board in the preparation of the comprehensive plan.

Although the board preparing the plan may consist of a relatively small group of individuals, the perspectives gathered concerning the plan should be numerous. Those persons whose perspectives may be helpful include: elected officials, members of the planning board and zoning board of appeals, planning staff and consultants, the administrative enforcement officer, the municipal assessor, the highway superintendent, the parks and recreation commissioner, members of the conservation commission, a local historian, the sewer/water superintendent, developers, representatives of local utilities, business groups, civic groups, neighborhood associations, members of the school board, and local environmental organizations.

The contents of comprehensive plans vary from community to community. In most plans four broad substantive components commonly appear: public infrastructure, public services, resource protection, and economic development. Additionally, some communities include an introduction explaining why they chose to engage in the planning process, as well as an implementation plan that sets forth the activities to be undertaken to achieve the goals of the comprehensive plan. The implementation plan is a blueprint to attain the community's objectives, explaining what actions are to be taken, who will undertake those actions, by what time the actions must be accomplished, and how the individual actions are interrelated. The implementation plan may contain several strategies or sets of actions to be undertaken to accomplish each objective. Within the four substantive components, each one is often broken down into background information, the goal or goals to be achieved for that substantive area, the objectives to be attained, and the strategies designed to achieve the component's objectives. Objectives are statements of attainable, quantifiable, intermediate-term achievements that help accomplish each goal. The plan will establish an approach for reaching its goals, which are broad statements of ideal future conditions that are desired by the community.

The material that follows provides a brief explanation of the components of a comprehensive plan, their importance, and their interrelationship.

1. The plan must specify the maximum intervals at which the adopted plan will be reviewed.
2. A newly adopted plan or amended plan must take into consideration any applicable county agricultural and farmland protection plan.

As suggested by state law, many localities organize their comprehensive plans into six major components. These components and their contents are as follows:

1. Issue Identification - sets forth data and community opinions and discusses and analyzes this information to determine the critical land use issues and unique opportunities of the community;
2. Public Infrastructure - discusses the adequacy of existing public infrastructure, such as water supply, transportation, wastewater treatment facilities, and solid waste disposal and examines the potential need for increased facilities;
3. Public Services - considers the adequacy of existing services such as schools, emergency services, and health care facilities and the potential need for increased services;
4. Resource Protection - discusses the adequacy of present efforts to preserve both the natural and man-made environments within the community and examines the need for increased protection of these resources;
5. Economic Development - explains present economic development efforts, such as the promotion of tourism or light industry, and sets forth strategies for improving the community's economy; and
6. Implementation Plan - establishes how the recommendations in each component of the plan will be implemented and coordinated with other plan components to achieve the goals of the comprehensive plan.

State law suggests a number of topics to be included in a comprehensive plan to aid communities in the creation of their comprehensive plans. Village Law § 7-722(3), Town Law § 272-a(3), and General City Law § 28-a(4) state that a comprehensive plan may include the following topics at the level of detail adapted to the special requirements of the municipality:

1. General statements of goals, objectives, principles, policies, and standards upon which proposals for the immediate and long-range enhancement, growth, and development of the town are based;
2. Consideration of regional needs and the official plans of other government units and agencies within the region;
3. The existing and proposed location and intensity of land uses.
4. Consideration of agricultural uses, historic and cultural resources, coastal and natural resources, and sensitive environmental areas;
5. Consideration of population, demographic, and socio-economic trends and future projections;
6. The location and types of transportation facilities;
7. Existing and proposed general location of public and private utilities and infrastructure;
8. Existing housing resources and future housing needs, including affordable housing;
9. The present and future general location of educational and cultural facilities, historic sites, health facilities, and emergency services facilities;
10. Existing and proposed recreation facilities and parkland;
11. The present and potential future general location of commercial and industrial facilities;
12. Specific policies and strategies for improving the local economy in coordination with other plan topics;
13. Proposed measures, programs, devices, and instruments to implement the goals and objectives of the various topics within the comprehensive plan;
14. All or part of the plan of another public agency;
15. Any and all other items which are consistent with the orderly growth and development of the municipality.

Although state law does not require a particular planning process for developing and amending the comprehensive plan, a general method may be gleaned from the statutes and local practice. The following material describes one planning process that many communities have followed in New York State.

It is helpful for the board charged with preparation of the plan to consider and evaluate both community opinion and reliable data to assess the critical issues and unique opportunities of the community.

Community opinion may be gathered by conducting surveys or holding public meetings where the public presents its views regarding critical issues and unique opportunities.

Readily available data may be collected from information sources such as the U.S. Bureau of Census, state agencies, and the county government. Studies may be conducted on important local conditions, such as existing land uses, threatened natural resources, and the need for jobs and housing. Important data that may help to prepare the plan include:

1. History of the community;
2. Population trends and demographics;
3. Land use and development trends, including housing, commercial, industrial and agricultural development;
4. Adequacy of existing public facilities, utilities and infrastructure;
5. Adequacy of existing public services;
6. Present economic trends, including sales tax information, property tax rates, and employment rates;
7. Existing natural resource conditions such as steep slopes, soil types, wetlands, watercourses, floodplains, aquifers, forests, and rare plant and animal habitats;
8. Historic, cultural, and scenic resources; and
9. Identification of the community's unique strengths and opportunities.

The purpose of gathering and analyzing community opinion, collecting data, and conducting studies is to identify the critical issues that the community faces and its unique opportunities. This information may reveal, for example, that the cost of housing is escalating, the tax base is not expanding, agricultural land is disappearing, or important natural resources are threatened. It will also indicate the unique characteristics, strengths, and opportunities that the community possesses, such as a marked increase in tourism or the demand for housing. From this list, the board preparing the comprehensive plan should determine which issues and strategies must be addressed in detail in the plan.

The board, with community input, should set goals that address each critical issue selected in the prior stage of planning and that build upon the community's unique strengths, characteristics, and opportunities. The goal in each case is to eliminate the problem identified while strengthening the community's positive attributes. For example, such a goal might be to provide an adequate supply and variety of housing types with prices that meet the housing needs of the present and future population of the community. Other examples of goals are to retain existing wetlands and protect them from all sources of pollution, or to preserve and protect the unique scenic and historic resources of the community and to base its economic development strategy on those resources.

The board should consider identifying one or more intermediate-term objectives to be achieved that will enable the community to reach its goals in time. An example is to produce fifty units of housing affordable for families with incomes under $30,000. Other objectives are to establish standards to protect wetlands of a certain size and character, and to adopt an historic district and landmarks preservation laws.

Setting realistic objectives requires the board to carefully assess what resources the community has to expend in addressing its most critical issues. Including the entire community in the planning process and consulting with outside agencies are important methods of identifying such resources so that critical issues may be dealt with effectively.

Strategies are actions that are recommended by the board to accomplish an objective. In each case, one or more actions may be suggested to attain the objective. For example, the board can recommend that zoning incentives be given to private developers in exchange for affordable rental and ownership housing for families keyed to the community's average family income. Similarly, where the community desires to reduce polluted runoff into an aquifer, the board can recommend that the local legislature adopt a law to protect certain aquifers that local permits be obtained before allowing development that affects aquifers, and that buffer zones of 150 feet be established to protect critical aquifers identified by the board. The board could also recommend that new housing and commercial development be actively encouraged in specified districts using architectural and site designs that are compatible with the community's historic character in order to maintain the existing historic character of the community.

At the end of the comprehensive plan, the board may want to recommend how its strategies can be implemented. An implementation plan designates the agencies or officials responsible for each action, identifies resources necessary for these actions, and establishes deadlines for the completion of each action. For example, the planning board might be assigned the task of developing an incentive zoning provision for affordable housing within eight months from the effective date of the comprehensive plan. Similarly, the plan could recommend that the municipal legislature adopt a local law creating a Landmarks Commission with the authority to review development permits in proximity to identify historic features. The recommendation could include the wetlands protection standards by which the Commission should review individual applications. Drafting of the local law could be assigned to the municipal attorney with the aid of the New York State Office of Parks and Historic Preservation, interested members of the community, knowledgeable about historic sites and their functions, and developers and landowners who will be affected by the regulations. The implementation plan could then state that the proposed law be circulated by the municipal clerk to the local planning board and county planning agency for their review and recommendations, with adoption of the local law to occur within twelve months of the effective date of the comprehensive plan.

By assigning responsibilities, identifying necessary resources and adopting a time frame to accomplish specific actions, the board will discover whether the strategies developed are realistic. If during the development of the implementation plan the strategies seem unrealistic, the board has the opportunity to recommend alternative strategies to achieve the established objectives.

In New York, all local land use regulations must be adopted in accordance with the community's comprehensive plan. Subdivision, site plan, special use permits and wetlands regulations, as well as the zoning law itself, are included in this requirement. Municipalities are not required to adopt a comprehensive plan, but courts have confirmed that comprehensive planning is the "essence" of "rational allocation of land use." Udell v. Haas (1968).

 Village Law § 7-722(11), Town Law § 272-a(11), and General City Law § 28-a(12) state that all land use regulations "must be in accordance with a comprehensive plan."

The case of Udell v. Haas (1968), provides an interpretation of the "in accordance with requirement." In this case the court was faced with a challenge to a land use regulation where no formal comprehensive plan for the community had been adopted. The court in Udell struck down a village zoning amendment because it failed to conform to the comprehensive plan.

In 1951, when the landowner bought the property, it was zoned Business "A," allowing for retail, office, and laboratory uses. Nine years later, the landowner's representative presented building plans to the village for a business development. That same night, the planning board recommended that the zoning for the area where the landowner's property was located be "changed from business to residential." The local legislature, when it changed the zoning as recommended, did not articulate the comprehensive planning objectives to be achieved by the rezoning. The court concluded that the "vague desires of a segment of the public were not a proper reason to interfere with the landowner's right to use his property in a manner which for some twenty odd years was considered perfectly proper. If there is to be any justification for this interference with the landowner's use of his property, it must be found in the needs and goals of the community as articulated in a rational statement of land use control policies known as the 'comprehensive plan.'" The court examined "all relevant evidence" including the zoning map and law for evidence of comprehensive planning. The court also reviewed a 1958 zoning amendment entitled "development policy" for the village. This amendment envisioned the village as a low-density, single-family community with commercial development limited to outlying areas. The court found that the landowner's parcel was located in areas such as these and that the previous zoning was in conformance with this development policy. The court reasoned that a "comprehensive plan requires that the rezoning should not conflict with the fundamental land use policies and development plans of the community" and invalidated the rezoning.

All land use regulations must be consistent with the comprehensive plan or evince comprehensive planning. An example of a comprehensive planning rationale might be to achieve the phased growth of development to insure the provision of adequate infrastructure for that development. Regulations and local laws are more likely to withstand challenge when they are supported by some rationale of this type that provides for the appropriate use of land in the public interest.

The decision in Golden v. Planning Board of Town of Ramapo (1972), recognized the ability of local governments to influence the pace of land development within their boundaries, provided that the goal was to control but not exclude development. In this case, several developers challenged the Town's right to adopt a comprehensive plan and zoning law that worked to slow subdivision of property allowing it time to build and pay for supportive infrastructure, like water and sewer utilities, at a pace that the Town could manage. "The Town has utilized its comprehensive plan to implement its timing controls. Considered as a whole, it represents both in its inception and implementation a reasonable attempt to provide for the sequential, orderly development of land in conjunction with the needs of the community, as well as individual parcels of land."

Even where a municipality has not adopted a comprehensive plan, land use regulations must evidence a comprehensive planning rationale. In the absence of a comprehensive plan, if a land use regulation is adopted without any comprehensive planning rationale, the regulation may be defeated for failure to meet the statutory requirement that all land use regulations be in conformance with a comprehensive plan.

In Osiecki v. Town of Huntington (1991), "the Town maintained that it is not obliged to slavish servitude" to the comprehensive plan and that it was free, in 1989, to determine that the comprehensive plan should not be followed with regard to the property in question. The court determined that the Town had failed to articulate a specific rationale for departing from its comprehensive plan in adopting a zoning amendment. The court held that the Town's reasons for abandoning the comprehensive plan "would invite the kind of ad hoc and arbitrary application of zoning power that the comprehensive planning requirement was designed to avoid." The rezoning of the plaintiff's parcel of land was void since it did not "comport with the Town's comprehensive plan."

Although state law does not require localities to adopt comprehensive plans, when they do, and when they conform their land use regulations to their plan, they tend to prevail when their land use regulations are challenged in court.

1. Regulatory takings: Property owners attack some land use regulations alleging that they effect a taking of their property for a public purpose without just compensation. They may prevail on this claim if they can demonstrate that the regulation does not substantially advance a legitimate public interest. When the locality can show that the regulation was adopted to accomplish an objective of the comprehensive plan and is a part of its integrated implementation plan, it is very difficult for the landowner to prevail on this part of a regulatory taking claim.
2. Equal protection: Land use regulations must not discriminate between similarly situated properties unless there is a clear public objective that is achieved by that different treatment. Where a regulation is challenged as a violation of the equal protection rights of a landowner, the fact that it was designed to achieve an objective of the comprehensive plan helps to insulate it from such an attack by demonstrating the rationale for the difference in treatment.
3. Substantive due process: Landowners may challenge land use regulations as arbitrary, capricious, or unreasonable; that is, a violation of their rights to substantive due process. Where it can be demonstrated by the community that a regulation so challenged is designed to accomplish an objective of the comprehensive plan, it cannot be said to be arbitrary, capricious, or unreasonable. Being in accordance with the comprehensive plan is positive proof of its legal reasonableness.
4. Ultra Vires: Land use regulations can be attacked because they are not adopted pursuant to the authority delegated to the local government to regulate private property. This is called an "ultra vires" challenge, a Latin term standing for "beyond the power of." If challengers can show that the regulation is not in conformance with the comprehensive plan, they may prevail on this claim. This is because the state law requires that all land use regulations must be "in accordance with the comprehensive plan." If they are not, they exceed the authority delegated to local governments to adopt land use regulations.

State law provides a flexible framework to adopt comprehensive plans so that communities may include components and organize their plans to best meet the varied circumstances they face. The comprehensive plan components and organization provided in this tutorial are illustrative and not offered as the "best" or "only" method for preparing and organizing a comprehensive plan. Most local comprehensive plans are unique in certain ways because no two communities are identical.

The enabling acts strongly encourage local governments to adopt comprehensive plans and provide clear guidance for doing so. The statues also require that the provisions of zoning laws and other land use regulations must be in accordance with a comprehensive plan. Where a locality does not adopt a formal plan, the courts will look to all the relevant evidence of comprehensive planning to determine if a challenged land use regulation meets the "in conformance with" requirement.

1. Cori Fay Traub & David Church, A Practical Guide to Comprehensive Planning, New York Planning Federation (1996).

2. John R. Nolon, Well Grounded, Shaping the Destiny of the Empire State, Local Land Use Law and Practice, Chapter 2. law.pace.edu/landuse/homepage.html

3. John R. Nolon, Comprehensive Land Use Planning: Learning Where and How to Grow (1993) www.law.pace.edu/landuse/nolona.html

4. Michael Chandler, Developing the Comprehensive Plan: Part 1, webcom.com/~pcj/articles/work10.html

5. Bernie Jones, A Primer on the Politics of Plan Implementation, webcom.com/~pcj/articles/jon047.html