This month begins a series on the elements necessary for a community to engage in municipal planning and on the requirements for enforcing regulations to carry out or protect the provisions of those plans. Some will affect small municipalities in particular. Some will affect large municipalities in particular. Almost all will affect every municipality in our state. Let us start with the most basic element: the planning commission.

It is worthwhile first to note that, unlike some states, ours does not require that a community involve itself in planning or in enforcement of the attendant land use regulations. What our state does require is consistency. Thus, the smallest communities must—with some exceptions to be noted—conduct itself in the same manner as a city of the first class. Little Flock and Little Rock must follow basically the same process.

Does that create problems? Most certainly, and there are no easy solutions. This is a common phenomenon in municipal government.

Regardless of the difference in burden, the first step remains the same. A community wishing to enact planning in our state first establishes a planning commission.

The city has some leeway in the composition of the planning commission. It must have not less than five members, of whom at least two-thirds shall not hold any other municipal office or appointment except membership in the board of adjustment or a joint planning agency (A.C.A. § 14-56-404). The size should fit the needs of the municipality. Smaller ones may have trouble finding more than five citizens willing to serve. Larger cities and towns generally have up to nine. Commissions larger than that may become unwieldly since some decisions rely on a majority vote of the entire planning commission, not simply a quorum present (A.C.A § 14-56-422).

A city of the second class or an incorporated town may elect by ordinance to allow the city council to serve as the planning commission and board of adjustment (A.C.A. § 14-56-404).

Elected officials often pose questions as to the background of potential commissioners. Following are some of the most common.

Can certain professions be excluded from serving on the planning commission? This normally involves real estate professionals, developers or certain sales professionals. The statutes don’t address such exclusion. In the author’s experience, such prohibitions do not usually form dependable criteria for success as a planning commissioner. What might be a more valid practice is for a municipality not to overload its commission with members of a specific profession or interest group.

What about term limits for planning commissioners? Some cities and towns practice this. Some don’t. Arguments exist for both viewpoints. Long tenure can produce fatigue, prejudice or what is sometimes called “ownership.” On the other hand, institutional memory can provide a blessing to a commission, and its city, at times.

For example, until a few years ago, one city in our state had a planning commissioner who had served honestly and conscientiously since 1964. He steered the city through many storms, political as well as physical. Such members can provide a vast reservoir of knowledge concerning why some things occurred and some didn’t. Thus, they can guide commissioners to safe harbors when disaster is looming. As with much involved in planning, the answer to term limits is: whatever suits the city best.

What about planning commissioners abstaining from decisions? This probably needs legal advice, but there can exist a tendency for commissioners to overuse the practice. They employ it not only because of direct financial implications but sometimes when they don’t want to “step up to the plate” on controversial decisions. (A note on abstentions: It is best for an abstaining commissioner to leave the room during the entire presentation of the case. One shouldn’t “have it both ways” by nodding, smiling, frowning, fidgeting, winking or even joining the discussion as sometimes happens, then claiming, “I didn’t vote.”)

How should the city treat frequent absences from commission meetings? This should be a provision of the planning commission’s bylaws. They are required to adopt them (A.C.A § 14-56-408), and adherence should not be an option. The public deserves commitment.

Can a city appoint commissioners from outside the city? This is murky point. The statutes say yes (A.C.A § 14-56-405[b]). An Arkansas attorney general’s opinion doesn’t agree. Seek legal advice. This planner’s advice: Stick to city residents. Each day that a planning commission meets has enough trouble of its own. Turf battles can detract from doing the city’s business.

How often to meet? The city’s needs should determine this, but the commission must meet once per quarter of each calendar year (A.C.A. § 14-56-407).

A city or town best chooses its planning commissioners on the basis of their implied ability to make educated, honest and courageous decisions within a diversified group. Those decisions should support or carry out the adopted development plans and policies of the city. This will form the relationship between the commission and the community it serves.

Once established, what should be the relationship between the planning commission and the elected body? First, as noted often this column, it warrants the term “planning commission.” Folks should never insultingly call it “the planning and zoning commission” or other erroneous terms. Its primary function is that of promoting public interest in, and understanding of, long-term coordinated municipal planning (A.C.A. § 14-56-412 [a]).

Specific duties include the following:

• The commission prepares a work program and makes comprehensive studies of the present conditions and the probable future growth of the municipality and its neighboring territory.
• The commission prepares a planning area map.
• The commission prepares plans for the planning area.
• Following the adoption and filing of any plan, the planning commission may transmit to the legislative body, for enactment, recommended ordinances and regulations that will carry out or protect the various elements of the plan (A.C.A. § 14-56-415).

Having accomplished the above, the planning commission may then:

• Administer the regulations that have been enacted;
• Refine existing plans;
• Prepare new plans; or
• Spend time in training.

Of course, all planning commission endeavors must conform to our state’s Freedom of Information Act. Legal assistance in this respect is a must. Violation is a sure road to trouble. Disaster may also befall a city or town whose planning commission fails to follow planning statutes, the city’s own ordinances or ancillary laws.

It is not a simple job, and it is one that becomes more complicated with each passing year. This brings up a common question. Can the city compensate its planning commissioners? The simple answer is yes (A.C.A. § 14-56-409). The fact is that only a few do so, and such compensation usually covers only mileage and personal expenses of attending meetings. Many municipalities finance training for commissioners, and training is necessary for success.

In closing, choosing a planning commissioner who will represent all stakeholders fairly and honestly can prove difficult. For any list of “those to avoid,” professional planners in the state can cite examples of model planning commissioners appointed from that list. The opposite is true of some from a list of preferred types. How will a commissioner behave once appointed? Professional planners and elected officials will agree: “There no telling.”

Perhaps a diversity of ages, backgrounds and experiences, all supported by a deep belief that government can benefit citizens, might provide the best applicant pool.

Jim von Tungeln is staff planning consultant and available for consultation as a service of the Arkansas Municipal League. He is a member of the American Institute of Certified Planners. Persons having comments or questions may reach him at 501-944-3649. His email is [email protected].