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As the Hoffman article discusses, the law requires comprehensive plans; <br /> however, both by legislation and by court decisions, if there is a <br /> conflict between the comprehensive plan and the zoning ordinance, the <br /> provisions of the zoning ordinance prevail. In one Minnesota court <br /> decision, the governmental body had no comprehensive plan; the court <br /> stated that the zoning ordinance could be construed as also constituting a <br /> comprehensive plan. <br /> As the Hoffman article suggests, we may soon see a change whereby a <br /> comprehensive plan will be given greater deference. Indeed, in the event <br /> of a conflict between a comprehensive plan and a zoning ordinance for <br /> example, the provisions of the comprehensive plan will prevail. Should <br /> that occur, the courts will likely shift their attention to the contents <br /> of the comprehensive plan in determining contested land use issues, a more <br /> thorough and careful process in the development of the plan and greater <br /> concern for the language used, which prompts my first general comment <br /> regarding this proposed plan. <br /> Comment 1 <br /> You will note in Section 3, the "Policy Plan ", the frequent use of <br /> mandatory phrases, in particular "shall be ", e.g. curb and gutter shall be <br /> provided on all urban streets and maintained in a good condition (p. 32, <br /> item 17). <br /> The format of this section of the plan is to formulate "goals" and to <br /> establish "policies" as the means of achieving those goals. See <br /> Introduction (p. 3). I would respectively submit that the policy <br /> statements should be couched in more discretionary language as opposed to <br /> self- imposed mandates, i.e. "should be" as opposed to "shall be ". <br /> Mandatory language should be reserved for the ordinances which will <br /> implement the comprehensive plan. <br /> My concern with this mandatory language is the impact it will have if made <br /> an issue in a court proceeding. For example, if the city is a party to <br /> litigation involving its land use ordinances, one can readily and easily <br /> envision the tactics of an opposing attorney merely addressing each of <br /> these mandatory, self - imposed obligations and inquiring as to whether or <br /> to what degree the city has complied with them. Picture yourself on the <br /> witness stand responding to repeated inquiries as to whether the city <br /> complied with these self- imposed obligations. It would be embarrassing <br /> (which city official would be knowledgeable about all of these <br /> self- imposed obligations) and it could be devastating as to the outcome of <br /> the litigation. <br /> By making these phrases discretionary, e.g. "should be ", or the <br /> equivalent, the policies may be retained. However, the Council may <br /> prioritize or otherwise be selective between those utilized as general <br /> guidelines and those vigorously pursued. <br /> -2- <br />