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OCR for page 35
35 Chapter 6 Long-Range Planning for Freight- Compatible Development The most successful corridor protection strategies rely master plan in some places). One way to avoid poor zoning on early, consistent, and clear planning. Planning is the first and site plan decisions is to decide the issues in advance and most important step in creating effective processes and in the regular updates of the city or county's general or opportunities to achieve freight-compatible development, comprehensive plan. The comprehensive plan is intended, reduce community-freight conflicts, and preserve critical and in most places required, to guide zoning and site plan freight corridors and facilities. decisions. The comprehensive plan also sets expectations as Tools to achieve effective advanced planning can be found to the allowed use of land in various locations, and devel- on the EnvisionFreight website at http://www.EnvisionFreight. opers and builders may make investment decisions based com/tools/default.aspx?id=planning, and include on that plan. Comprehensive planning that protects freight can prevent the formation of investment-backed expecta- State enabling acts, tions that may be difficult to unwind in the zoning and site Local comprehensive plans, planning processes. State and regional plans, Comprehensive plan updates almost always are performed Regional collaboration, and following a menu of topics provided in the state's planning Mapping. enabling act. Unfortunately, as illustrated in Figure 6-3, most state enabling acts do not require freight to be included in comprehensive plans. As a result, most city and county staff State Enabling Acts and the members do not focus on freight issues, and there are few General or Comprehensive Plan available tools and little guidance for consideration of freight interests or avoiding conflicts with non-freight land uses when The power to regulate land uses--except where limited it comes to planning and zoning. If the state enabling laws by federal law--is primarily a power "reserved" for the states required or suggested that plans to protect all modes of freight under the U.S. Constitution. As illustrated in Figure 6-1, should be included in a general plan, significant new protec- most states have delegated this power to local municipalities tions would likely evolve naturally in our land-use system and counties under the planning and zoning enabling laws nationwide in the next decade or so. enacted by state legislatures. Most issues about future land uses affecting the present or future viability of freight facilities arise from, or come to a head in, the context of zoning or Federal Preemption of Interstate development site plan approvals. Almost always, nothing is Commerce and Freight built in America unless and until the use of the land concerned Federal preemption functions to foreclose state and local has been approved in a city or county general plan, the prop- regulations. The Supremacy Clause of the U.S. Constitution erty has been specifically zoned for that use, a development (Art. VI, Cl. 2) states the following: site plan has been approved, and a building permit has been This Constitution, and the Laws of the United States which shall issued. These are all local government functions. be made in Pursuance thereof ... shall be the supreme Law of the As Figure 6-2 illustrates, zoning, site plan, and subdivision Land; and the Judges in every State shall be bound thereby, any decisions are based on guidance from the municipality or Thing in the Constitution or Laws of any State to the Contrary county's comprehensive plan (also called a general plan or notwithstanding.

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36 Source: Grow & Bruening. Figure 6-1. Land-use authority in the United States. Source: Grow & Bruening. Figure 6-2. Typical local government land-use system. This clause is the foundation for the legal doctrine of federal preemption. The Commerce Clause of the U.S. Constitution (Art. I, 8, Cl. 3) also can be used to strike down local land- use and zoning laws. Under the Commerce Clause, Congress possesses the exclusive power to regulate interstate commerce. This may limit state power to regulate commerce even in the absence of congressional action (481 U.S. 69, 107 1987). However, courts prefer to avoid engaging in a Commerce Clause analysis if they can find preemption under a federal statute (38 F.Supp.2d 1096, 1101, (D. Minn) 1998). Below, this report summarizes federal preemption as it relates to the various freight transportation modes and facilities. Air Transportation--Federal preemption is not as abso- Source: Grow & Bruening. lute with respect to air transportation as with other modes. Figure 6-3. State enabling acts often do not Federal preemption generally holds in land use and zoning account for freight. around airports. Local regulation of aircraft and airport noise