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Issues in Land Use Law & Zoning

The Property Rights Challenge: What’s A Planner to Do?

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The changed legal and political environment within which planners and local officials must now operate requires a re-thinking of a number of planning practices. While local officials cannot afford to retreat from important community planning objectives, neither can they ignore the increased concern with protection of property rights. Thought must be given to how plan policies can be achieved with the least infringement on ownership rights. This will require the adoption of implementation strategies that are diverse and innovative, and which skillfully combine regulatory, incentive, and voluntary approaches. Toward this end, those responsible for carrying out community planning may wish to consider the following practice guidelines:

1. Know the Law. Although recent court decisions have tended to limit the flexibility of planning policy-makers, much of the previously established case law regarding land use controls remains in effect (e.g., the ability of localities to reduce or increase densities to meet planning objectives; to require bicycle lanes in new subdivisions; or to preserve historic areas). Local officials continue to possess a great deal of discretionary authority to regulate land use and to protect environmental values. It is important that planners, legislators, and planning commissioners keep informed regarding the true scope of their authority, and that they not be misled by project applicants who seek to expand the significance of recent decisions far beyond their legitimate interpretation.

2. Enhance Public Participation in the Planning Process. In an uncertain legal and political environment it is more important than ever that the goals and objectives of the planning process be fully supported by all elements of the community. Through the use of focus groups, public meetings, surveys, and other techniques, residents should be provided an early and continuous voice in the planning process.

Participation should include consideration of specific implementation strategies as well as more general policy directions -- and participants should have a clear understanding of the relationship between plan objectives and implementation techniques. As part of the process, officials should consider the drafting of a vision statement, a consensus document outlining the community's vision for its future. ...

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