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STATE-ENABLING LEGISLATION

Another change in the legal framework of planning since the days of the Plan of Chicago has been the passage of state legislation that defines in broad terms the local planning function. Legislation varies greatly from state to state. In most cases, legislation merely permits localities to engage in particular planning activities. But in other cases, the legislation requires that communities perform certain planning acts. Note, incidentally, that state-enabling legislation also defines municipal obligations and powers with regard to taxation, borrowing, the judicial system, the provision of police protection, and many other matters.

As an example of state-enabling legislation with regard to planning, consider the State of Virginia.12 Legislation requires that all cities, towns, and counties establish a planning commission and adopt a master plan. The intent of the state's local planning legislation is given as follows:

To encourage local governments to improve public health, safety, convenience and welfare of its citizens and to plan for the future development of communities to the end that transportation systems be carefully planned; that new community centers be developed with adequate highway, utility, health, educational and recreational facilities; that the needs of agriculture, industry and business be recognized in future growth; that residential areas be provided with healthy surroundings for family life; and that the growth of the community be consonant with efficient and economical use of public funds.

Having laid out the general reasons for requiring communities to plan, the law then goes on to state,

The governing body of every county and municipality shall by resolution or ordinance create a local planning commission. . . . In accomplishing the objectives . . . such planning commissions shall serve primarily in an advisory capacity to the governing bodies.

The law requires that each city, county, or town draw up a master plan, and then, in a general way, suggests the areas the plan is to cover:

The local commission shall prepare and recommend a comprehensive plan for the physical development of the territory within its jurisdiction. Every governing body in this state shall adopt a comprehensive plan by July one, nineteen hundred eighty.

Note the requirement for adoption as well as for plan preparation. The reason for this wording is that plans themselves are not laws. They become law and acquire force when the legislative body of a community passes a resolution stating that the attached document (the plan) is adopted as the master plan of the municipality.

The legislation stipulates that the plan and accompanying maps, plats,13 and so on "may include, but need to be limited to" the following:

  • 1. The designation of areas for various types of public and private development and use, such as different kinds of residential, business, industrial, agricultural, conservation, recreation, public service, flood plain and drainage, and other areas.
  • 2. The designation of a system of transportation facilities, such as streets, roads, highways, parkways, railways, bridges, viaducts, waterways, airports, ports, terminals, and other like facilities.
  • 3. The designation of a system of community service facilities, such as parks, forests, schools, playgrounds, public buildings and institutions, hospitals, community centers, waterworks, sewage disposal or waste disposal areas, and the like.
  • 4. The designation of historical areas and areas for urban renewal and other treatment.
  • 5. An official map, a capital improvements program, a subdivision ordinance (this term is explained in Chapter 9), and a zoning ordinance and zoning district maps.

Where state laws or state constitutions permit municipalities to engage in certain acts of planning, it could be said that they are merely granting permission for municipalities to do that which is implicit under the concept of the police power. There is some truth in this. However, planning-enabling acts and zoning-enabling acts are useful in that they encourage municipalities to plan, define the scope of planning, and furnish legal support for the municipality should its plans be challenged in court. As noted, many planning-enabling acts go beyond simply permitting communities to plan and require them to plan. These laws thus establish a minimum planning effort that every community must make.

The Legal Link to State Planning

As noted in Chapter 4, many states engage in some statewide planning. Such planning efforts generally impose legal requirements on local governments to ensure that they act in conformity with state plans or planning requirements. For example, if a state engages in planning designed to preserve wetlands, it may require that local governments not grant permits for development in or near wetlands until certain types of studies have been made or hearings conducted. These requirements prevent local governments from permitting actions that contravene the intent of state plans. Since local governments are "creatures of the state," it is clearly within the power of the state to bind local governments so that they act in conformity with state-established guidelines.

 
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