Comprehensive plan question

[hannah]

I know that a comprehensive plan is a proposed plan of zoning for a city, etc. Say an area addressed in the comprehensive plan is not actually zoned in the proposed manner and when actually zoned is zoned something else entirely as the proposed plan was no longer feasible for that area at the time zoning was implemented. Does the actual zoning become part of the comprehensive plan? Generalities needed and examples if possible.

[mike gurnee]

In many states zoning can differ from the plan due to changing conditions (physical, economic, etc.) since the plan was adopted. It would help to append the findings of such change to the plan. It does not become part of the plan, that can only be done through your statute's due process method. Just drop a copy of the zone change files into the comp plan folder.

[hannah]

Due process is not addressed in the city ordinances and under state law, this is also not covered although the plan is supposed to be updated every ten years by statute. The plan here was written in 1971, adopted in 1972 and never updated even though it violates state law not to do so and the city can be fined as the only consequence even though it is not clear who has the legal authority to investigate and fine the city. I would suppose this would have to come from the state attorney general.

The problem is that my area is zoned differently from the plan because at the time the plan was written, the area my house is in was to be taken by eminent domain for a highway which was eventually built 3 blocks to the east. The area my house is in is all residential and so when it was zoned was zoned multi-family residential and has remained so since 1972. The city recently changed the zone of two adjacent lots to commercial. The city claims that because the plan originally called for this area to be zone open space green space for the highway, it is not against the plan to rezone the lots.

[Gedunker]

The comprehensive plan is NOT the zoning ordinance nor the zoning map. It is a generalized document (typically not specific to individual parcels) about future land use, transport, and other capital improvements. It IS the basis for the zoning ordinance and zoning map, but those are adopted by the legislative body separately from the comp plan.

Still having trouble with industry and flood plains in your neck of the woods, are we?

[hannah]

Having many problems here, yes. No one seems to have a clue about zoning and they don't follow state law in making their own. It's truly a mess. Seems if you want to put in a business, ANY lot in town can be rezoned commercial. They have even rezoned residential to commercial without even being told what the proposed business is and allowed non-owner rezoning as well. I'm sure I don't understand their mindset other than more business means more money in city coffers regardless of what willy-nilly zoning does to the city as a whole. Many people have expressed that they are ready to sell their homes and move.

In 2008 the state passed a statute to allow referendums on zoning issues BUT because of the Municipal League lobby, they only included county zoning not municipal zoning. The sponsors of the legislation knew it wouldn't pass if they included municipal zoning so those with municipal zoning don't have the same rights. We could end this "have business, will rezone for you" mentality if we had the same rights of referendum. Am looking at a legal action challenging the constitutionality of this as unequal.

*sigh*

Seems the more I peel this onion, the more layers I find. If housing values were better, I would definitely be selling and moving.

[Richi]

Typically, the plan rules and zoning should be consistant with the future land use map. For instance if the FLUM shows an area as low density residential, zoning to allow industrial would not work. Of course, it depends on the State enabling legislation says. In Florida, the Comp Plan controls. If zoning conflicts with the plan, the zoning has no authority. The courts have actully made people take down buildings that were built in conflict with the Plan, even though they received building permits.

[dvdneal]

I actually have a similar situation in my city. We used our general plan (aka comp. plan) to designate a large area as open space for use by the county flood control as a large reclaim project. The project never happened, but the land use still exists. Because of prop. 207 legal issues the city is not ready to change the land use (another long story). When people come in to rezone the land, because our state laws say the zoning must meet the general plan, we force a minor general plan amendment. We also have the issue that the state law says we can't enforce open space land use on property owners without their written consent (which we don't have). Part of why we are ok with allowing the land use change to something more commerical. At the same time, our land is vacant with no residents nearby and the portions that have changed are by a highway, so the change actually made sense.
Good luck.

[shell_waster]

Hannah,

I too am experiencing the same problem as you in the rural City I live in and sit on the Planning Commission. It's hard for me to sit back and allow spot zoning just because someone knows the mayor, I refuse to provide a positive vote in those cases but being an outsider no one listens. I sometimes think I am just a warm body filling a vacant spot.

Where I work is a different story, if someone wants to rezone their property the Future Land Use Map must first match the proposed zoning, yes it is parcel specific. We allow applicant's to apply for a FLUM amendment twice a year as we put a lot of emphasis on our FLUM and the Board of Commissioners usually request that the FLUM is evaluated once a year by staff and suggest any possible amendments for their consideration. Our FLUM is a product derived from the Comp Plan and our Zoning Ordinances is the guidance document for the specific districts.

For instance; our FLUM designation of medium density residential equates to R-1 zoning at 1.45 units per acre. If a developer desires to rezone from AR, 1 unit per acre, to R-1 the FLUM must be amended (if not already designated) from low density residential to medium density residential.

[hannah]

Originally posted by Richi

Typically, the plan rules and zoning should be consistant with the future land use map. For instance if the FLUM shows an area as low density residential, zoning to allow industrial would not work. Of course, it depends on the State enabling legislation says. In Florida, the Comp Plan controls. If zoning conflicts with the plan, the zoning has no authority. The courts have actully made people take down buildings that were built in conflict with the Plan, even though they received building permits.

Richi,

What if residences were already built and had been a residential neighborhood for decades? My home and several others are over 100 years old. The planned use of my neighborhood (1971) was proposed to be open spaces, green spaces as a 4 lane highway was supposed to be built taking the whole area. That never happened and instead in 1972 the area was zoned multi-family residential. Can't say it was not consistent with the Comprehensive Plan when the Plan's proposed use fell through. It's not like the state is going to move the highway someday or build another one taking the area so the whole open space green space is a moot point. My home (I didn't own it then, didn't buy it until 1987) since the time zoning was established here has been zoned R-M. I would never have purchased the property if it had been adjacent to commercial property.

The Comprehensive Plan in WV supposedly controls BUT if the Comprehensive Plan has never been followed EVER what then? There is precedent stating that any zoning amendment that is adopted by a governing body become part of the Plan however, there is vagueness in defining just what procedure has to be implemented to legally adopt. In addition under state law, a municipality's Plan must be reviewed and updated every ten years and that has NEVER been done here.

[Richi]

Hannah - Not sure what WV law holds. In Florida, the area that was already developed residential almost without exception called residential on the first Future Land Use Maps. If not or FLUM changed Later, then a legal nonconformity would have been created.

As to the plan never being enforced I can't imagine that. There are few places in Florida where that would not have been in court very quickly.

[FueledByRamen]

Originally posted by dvdneal

I actually have a similar situation in my city. We used our general plan (aka comp. plan) to designate a large area as open space for use by the county flood control as a large reclaim project. The project never happened, but the land use still exists. Because of prop. 207 legal issues the city is not ready to change the land use (another long story). When people come in to rezone the land, because our state laws say the zoning must meet the general plan, we force a minor general plan amendment. We also have the issue that the state law says we can't enforce open space land use on property owners without their written consent (which we don't have). Part of why we are ok with allowing the land use change to something more commerical. At the same time, our land is vacant with no residents nearby and the portions that have changed are by a highway, so the change actually made sense.
Good luck.

This is very interesting. I am private sector and do many parks and open space plans for cities (parks departments typically). We generally recommend that the FLUM is ammended to include parks and open space as a category if it isn't already and to reflect the Proposed Parks and Open Space map that we prepare as part of our plan. We do this because the FLUM holds a lot more weight than the parks plan. So far, the planning departments of the cities we work with have been very receptive of this, but now I'm wondering if ammending the FLUM for this purpose will actually do anything...