Survey of State Land-Use and

Natural Hazards Planning Laws, 2007

In 2007, two states—Montana and Colorado—took significant steps forward in addressing natural hazards through planning enabling legislation. The former was motivated by concerns about wildfires, the latter about floods. In California, the dramatic failure of levees in New Orleans had stirred discussion of the consequences of levee failures around Sacramento ever since Hurricane Katrina. In addition, although a new Colorado measure is not reflected within the scope of our report, its state legislature authorized the creation of “forest improvement districts,” whose stated purpose is to protect communities from wildfires and improve the condition of forests. However, it is not so much a planning vehicle as it is a way of combining resources and special taxing authority across jurisdictions in order to reduce wildfire hazards, including incentives to landowners to mitigate risks on their property.

In the California case, the state has injected mandatory floodplain considerations into both the land use element that communities must prepare as part of the mandatory general plan, as well as into the safety element, which until now has focused largely on geologic and fire hazards. AB 162 basically says that communities must, in the land use element, identify and annually review areas subject to flooding as identified by flood maps prepared either by the Federal Emergency Management Agency (FEMA) or the California Department of Water Resources (DWR). The safety element must establish goals, policies, and objectives pertaining to flood risks. Finally, the community must review this information in revising its housing element. California passed two other bills, SB 5 and SB 17, that expanded this concern about floodplain management. SB 17 renames the Reclamation Board of DWR the Central Valley Flood Protection Board and requires it to act independently of the department. SB 5, among other things, requires each city and county in the Sacramento-San Joaquin Valley to amend its general plan to include data and analysis from the flood protection plan produced by the Central Valley Flood Protection Board, within 24 months of the latter plan’s adoption. Together, these three laws usher in some noteworthy changes in planning for flood hazards in California.

Montana, which does not have mandated planning but does specify the ingredients of what state law calls a “growth plan,” added a new section to its growth plan law requiring “an evaluation of the potential for fire and wildland fire in the jurisdictional area,” including decisions on the need to delineate the wildland-urban interface and adopt regulations for defensible space, access, and water supply. The new law, SB 51, went further, however, by also specifying that mitigation measures be incorporated into subdivision codes, thus providing for some explicit tools for implementing growth plan goals.

We have made one significant change in the survey as a result of consultation with the APA network of legislative liaisons. We now list Connecticut as a state with mandated planning on the basis of information from the APA chapter contacts. They informed us that, even though the state planning laws do not require communities to create planning commissions, only one of 169 municipalities is without a commission. The law does mandate that planning commissions create a “plan of conservation and development,” which is in effect a local comprehensive plan. We decided that this amounted to de facto mandatory planning, even though in most other states we would have decided otherwise. This decision was strengthened by the passage in 2007 of Public Act No. 07-239, which makes communities without amended plans ineligible for discretionary state funding barring a state waiver. We use this network in part to keep us in touch with actual planning practice in the various states because scanning and digesting the contents of 50 state codes is a complex job, and the advice we receive often serves to clarify nuances of the interpretation and application of state laws.

It is also worth noting one point that has emerged from those discussions. Federal law often mandates various kinds of plans, among them state and local hazard mitigation plans under the Disaster Mitigation Act of 2000, as a condition of eligibility for federal grants. This survey does not address such plans unless state law incorporates and enhances them in some way that distinguishes them from what every other state is doing to comply. Our larger goal is not to see whether states or their local governments are planning for hazards under federal mandates, but to see how they are integrating such planning into the larger framework of comprehensive planning at the state or local level. One new frontier in the planning field may well be the effective integration of planning done to comply with federal disaster legislation with the ongoing comprehensive planning that takes place at the state or local level, with or without mandates in state planning legislation. In August 2007, the American Planning Association (APA) entered into a two-year contract with FEMA to produce a Planning Advisory Service Report on best practices with regard to integrating hazard mitigation into all aspects of local planning. That project is now underway.

Background

In April 1998, the Institute for Business and Home Safety (IBHS) published its Summary of State Land Use Planning Laws. For several years, the IBHS Land-Use Planning Committee has been examining ways to heighten the priority level of hazard mitigation in state planning legislation. The committee’s work reflects a concern that traditional mitigation efforts have focused largely on improving building codes, strengthening code enforcement, and testing new building techniques and materials. That focus certainly addresses the question of how we build, but land-use planning brings into focus the equally important question of where we build. Ultimately, neither one is completely adequate as an answer to the threat posed to our communities by natural disasters. The two mitigation strategies must complement each other to be maximally effective. The 1998 report attempted to draw attention to this fact.

In 2001, the committee decided to ask APA to prepare an update of 1998 study. By January 2002, IBHS had engaged Jim Schwab, who had previously managed the preparation of APA’s ground-breaking Planning Advisory Service Report, Planning for Post-Disaster Recovery and Reconstruction (PAS Report No. 483/484), which was sponsored and co-published by the Federal Emergency Management Agency, to undertake the work. This new report is the result of that effort.

It is important to note the differences between the current report and the first. The 1998 report concentrated on general planning legislation and requirements and contained only one column specific to natural hazards, in which the question was, “Is hazard mitigation a required or suggested element?” The rest of the columns in a single matrix dealt with questions of statewide planning, whether the state required local governments to plan, and the existence of any requirements for vertical or horizontal consistency. Vertical consistency refers to requirements that a local plan be consistent with the plans of higher levels of government, such as regions or counties. Horizontal consistency refers to requirements that they be consistent with the plans of neighboring jurisdictions.

The current study is similar to the 1998 study in that it focuses on local planning, where land-use regulations are actually enacted and implemented, and not on regional planning, where they seldom are. Hence, although some questions in the matrices might be answered differently if one were considering regional plans, the attempt was to answer them as they related to those jurisdictions, typically counties and municipalities, that actually enforce land-use regulations such as zoning.

This study contains almost all of the 1998 questions in its first matrix, which provides information on general planning provisions in state laws, but it adds a second matrix that looks much more closely at those provisions that specifically address natural hazards. Hence, the last question of the first report becomes the first in the second matrix of this report. The first matrix of this report is largely, but not completely, a reprise of the types of information contained in the 1998 report. The second matrix represents a significant expansion of the scope of our research. However, we deemed two new questions, which appear in the first matrix, significant and worth asking:

·        Must the plan be adopted formally by the local legislative body? In states that require such adoption, the city council, county board, or other governing body must adopt the plan before it becomes official policy. In other states, it is usually sufficient for the planning commission alone to approve the local plan. The requirement for formal adoption by the legislative body, however, invests that body with some stake in the plan’s successful implementation.

·        Does state law require that zoning be consistent with the comprehensive plan? Requiring that zoning conform to the plan gives the plan much more legal force and effect than would be the case if the plan can be ignored for this purpose. It should be noted, however, that in some states, what appear to be clear requirements for internal consistency have not been interpreted in this way by the courts.

Finally, a judgment was made in one column rating the strength of the state role in guiding planning by local governments, mostly to provide an overall indicator of the stance the state government had taken toward this subject. In that regard, it is worth quoting the introduction to the 1998 study with regard to the intent and limitations of both that and the current study:

Land-use planning is a job for local and regional jurisdictions. Where state governments require planning and specify the elements that it must contain, localities tend to do a much more thorough job. Where state governments do not require or encourage it, the localities usually do not make planning a priority. This report compares the importance individual states place on land-use planning and the requirements the states place on local jurisdictions. The study does not review what actually has been achieved.

As the chart indicates, most states do not require or even suggest to localities that natural hazards be considered in making land-use and development decisions. This is unfortunate because land-use planning can have a major impact in reducing disaster losses from hurricanes, earthquakes, wildfires, and floods.

In its efforts to make families, homes, and businesses safer, the Institute for Business and Home Safety is working to heighten the priority of natural hazard mitigation as an essential element in land-use planning. This report indicates where the most work is needed.

Hence, the second matrix. In it, we ask much more detailed and specific questions than in the 1998 report, to wit:

• Are hazard mitigation elements mandatory in local comprehensive plans?
• Do the laws require a separate, discrete hazards element, or do they include hazards in a broader element such as an environmental or land-use element?
• To what geographic area within the state (for example, coastal counties) does the requirement for a hazard mitigation element apply?
• Does the statute specify any particular types of hazards that must be addressed, and, if so, which ones?
• Is there any requirement for the hazards element to include a plan for post-disaster recovery? (This provision is included in the Natural Hazards Element section (7-210) of  the model statutes in APA’s Growing Smart Legislative Guidebook, available at http://www.planning.org/growingsmart/.)
• Which, if any, state agencies provide technical assistance to communities in preparing plans, and more specifically, in preparing natural hazards elements? This last question was deemed significant because of the technical aspects of natural hazard mitigation. Few university planning programs teach hazard mitigation, and many professional planners are untrained in this area.

We hope that posing and answering these additional, more specific questions about state planning laws and the degree to which they foster the integration of natural hazards planning into local comprehensive plans will further public consideration of these issues. In any community where natural hazards of any sort exist—flooding, earthquakes, hurricanes, wind storms, wildfires, volcanoes, landslides, etc.—it can respectfully be suggested that no planning is truly comprehensive until mitigation of those hazards is addressed, and a plan for recovery from major natural disasters is in place.

Finally, we encourage readers who wish to do further research to do so. A wonderful place to start in locating state codes is www.findlaw.com. From that website, which indexes online sources of state and federal law, one can “click through” to sources of constitutional, statutory, administrative, and case law for the federal government and all 50 states. Get involved. Check it out.

Summary of State Land Use Planning Laws[PDF]

Key Code to State Land Use Planning Laws

State Land Use Maps [PDF]

Acknowledgements