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Enabling Legislation For Traditional Neighborhood Development Regulations
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Session:Traditional Neighborhood Development Regulations (March 12, 2:30 pm) |
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IntroductionThe first question that comes to mind when one considers the topic of enabling legislation for traditional neighborhood development ("TND") regulations is whether express enabling is even necessary for a local government to adopt TND regulations. After all, haven’t local governments in North Carolina, Florida, Texas, Virginia and Ohio, among others, already enacted TND regulations, or are on the cusp of doing so, in the absence of express enabling? Up until recently, the common wisdom was that support could be found for all manner of land use controls given the broad language found in most state enabling statutes, be it those concerned with zoning, subdivision or planned unit developments. To a large extent, this is likely still the case. The legislatures of three states, however, in markedly different ways, have determined that express enabling legislation was required in order to prompt their local units of government to enact TND regulations. The American Planning Association’s Growing SmartSM program seems to recognize this trend and has included model enabling legislation for TNDs in its Legislative Guidebook under its section on planned unit developments. Andres Duany of the Florida architecture and town planning firm Duany Plater-Zyberk & Company, the renowned leader of the new urbanist movement, also appears to have taken an interest in this trend, drafting a model enabling act. Legal Issues Surrounding Enabling for TND RegulationsExpressly enabled or not, local governments must successfully balance the right of the community to determine how it wants to appear versus the right of individuals to express themselves through architecture and to use their property as they see fit within the reasonable strictures of the law. This is where the tension begins, notwithstanding the deference accorded by the courts to decisions of local land use decision-making bodies. Perhaps the starting point for the argument that TND regulations should be expressly enabled is the fact that the overt design emphasis inherent in TND regulations, over and above the conventional use, bulk, and other zoning and subdivision standards, necessarily raises the troublesome specter of "aesthetic" regulation. TND regulations, like all land use regulations, must satisfy the requirements of substantive due process. Since they are exercises of the police power, TND regulations must advance legitimate governmental interests that serve the public health, safety, morals and general welfare. A majority of jurisdictions in the United States now accept aesthetic considerations, either alone or in conjunction with other legitimate objectives, as a proper goal in the exercise of the state’s police power. A minority of the states recognizing aesthetics as a legitimate target of regulation abides by what is termed the "traditional view": aesthetic considerations alone are not a sufficient justification for the exercise of the police power. In these "aesthetics-plus" jurisdictions, the courts may strike a regulation whose sole purpose is to protect aesthetic values, unless express enabling legislation exists. Aesthetic regulations generally come in two varieties. "Anti-look-alike" regulations provide that a new building may not be too similar to existing dwellings in the area. Other regulations, on the other hand, provide that new buildings may not be too dissimilar from existing buildings, adopting a "look alike" requirement, a variant of the now-familiar "compatibility" standard. Both types of regulations have increasingly been upheld, with many cases citing the United States Supreme Court’s pronouncement in Berman v. Parker, 348 U.S. 26 33 (1954): The concept of the public welfare is broad and inclusive. The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well balanced as well as carefully patrolled. TND regulations create a wrinkle in the established "anti-look alike"/"look-alike" continuum because the primary focus of the regulations is not on individual buildings, but on the "Public Realm," the tout ensemble of the façades of "fabric" and "focus" buildings and the design of all manner of the public spaces in between. The United States Supreme Court’s decision in The Members of City Council of the City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 784 (1984), cemented the Court’s view that aesthetics are a proper focus of governmental regulation, which could arguably include the design of the public realm. Still, TND regulations, like all other methods of land use controls, must find their support in their respective states’ enabling legislation. As the following shows, however, this might be a tall order given the present status of enabling legislation: In part, the inefficiency and ineffectiveness of contemporary land use regulations is attributable to the history of land use controls in this country and to our collective inability to reform the basic rules on which the controls are based. With a few exceptions, the state enabling laws that control land use planning and regulation are anachronisms from the mid-1920s when the challenges of planning and land use control were far different than they are today. It is hard to believe that we try to manage the complexities of our modern world (with uses and conditions unimaginable when the planning and land use regulations first developed) on the basis of rules and laws that are unchanged in sixty years. In the absence of specific enabling authority for TNDs, which is likely the case in the 48 states aside from Pennsylvania and Wisconsin, one must look for guidance in the general zoning enabling statutes and the statutes governing the delegation of the exercise of the police power from the states to their localities. Some of these statutes literally speak to the promotion and protection of "character" or "appearance" of the community as a legitimate public purpose. Such language can certainly support TND regulations. Accordingly, typical zoning enabling language, for the most part derived from that contained in the Standard State Zoning Enabling Act, if used creatively, could serve as the legal basis of TND regulations. This is the most likely scenario in a state like North Carolina, where state enabling legislation is very typical and numerous TND regulations have been enacted. Another example is Florida, perhaps the leading state in terms of TND projects, but with a twist. There is an explicit provision in the section of the Florida Growth Management Act related to land development regulations that "[t]his section shall be construed to encourage the use of innovative land development regulations which include provisions such as transfer of development rights, incentive and inclusionary zoning, planned-unit development, impact fees, and performance zoning." Finally, the general consistency requirement contained in many enabling acts could be used to support the establishment of TND regulations that find their basis in sound planning. TND regulations must also comport with the principles of fundamental fairness, i.e., they must contain sufficiently detailed and meaningful standards in order to alert applicants to what is expected of them, while allowing sufficient discretion in the decision-making body to determine the approval of an application. This is easier said than done, especially so given the demands of TND proponents for design specificity. These types of standards are not much of an administrative problem in the "codes" promulgated by Duany Plater-Zyberk & Company, as these "codes" are privately enforced. But the same standards, if contained in a duly-adopted set of regulations, may be so detailed as to run afoul of fundamental fairness. In some extreme cases, these standards may rise to the level of a prior restraint on expressive activity, in derogation of the First Amendment to the United States Constitution. One way to avoid such problems may be to focus on the TND as a tool to shape public space, rather than as a "mere" architectural design regulation. After all, government has a duty to promote and maintain a healthy and safe public realm. Consideration must also be given to the type of administrative body tasked with evaluating applications made under TND regulations. The body logically best equipped to deal with such applications would be an Architectural Review Board. These bodies, however, have been assailed throughout the country as "pretty committees" and, more importantly for the purposes of this paper, have their own problems of enabling. There are also issues concerning the danger of abuses of discretion given the subjectivity inherent in administering any type of design-based regulations. Underlying all of this analysis, of course, is the "Big Policy Question": Can (or should) the tenets of a movement that necessarily requires an emphasis on design in land use regulation be legislated?" The three states, Connecticut, Pennsylvania and Wisconsin, have weighed in on this question. Connecticut’s Approach to Traditional Neighborhood Development Enabling Laws: The Village Districts Act, Public Act 98-116, Amended by Public act 00-045We begin with an approach that lands squarely in the middle of the continuum anchored on one end by an apparent lack of enabling and on the other by express enabling for TND regulation. On May 22, 1998, Connecticut Governor John G. Rowland signed into law Public Act 98-116, "An Act Authorizing the Establishment Of Village Districts." Effective October 1, 1998, the Village Districts Act (the "Act") enables local zoning bodies to protect the distinctive character, landscape and historic value of the areas under their jurisdiction. This amendment to Connecticut’s zoning enabling legislation has, thus far, spawned only two local village districts, in the towns of Brooklyn and Middletown, but many other towns are engaged to one extent or another in the development of such regulations. Why A Village Districts Act? Background. According to John Filchak, the Executive Director of the Northeast Connecticut Council of Governments, the genesis of the Act was not an overt attempt to create ground-breaking zoning enabling legislation, but rather a desire to address the needs of the towns of Brooklyn and Canterbury, Connecticut. Brooklyn, a town of roughly 7,000 people located in northeast Connecticut, had no local regulatory means at its disposal with which to address road improvements proposed by the Connecticut Department of Transportation ("DOT") that would directly affect the rural town’s historic green. Canterbury, a larger town of roughly 43,000 residents, discovered that current zoning laws would not adequately address many of the issues it had identified while updating its Plan of Conservation and Development. The primary concerns of each town fell into the following four categories: Desire To Preserve Character. Brooklyn’s historic green is listed on the National Register of Historic Places as the Brooklyn Green Historic District. While this distinction is noteworthy, National Register listings are primarily honorific and therefore do not provide any legal protection for historic resources outside the National Historic Preservation Act. This small rural town, therefore, found itself powerless to protect its existing character against actions contemplated by the DOT. Canterbury is bisected by Connecticut Route 169, a state and national scenic highway named by a national publication as one of the ten most beautiful roads in America. The challenge facing Canterbury was how to maximize the benefits inherent in an area with commercial potential, while at the same time preserving its beautiful viewsheds and distinctive architectural character. Recognition That Present Zoning Was Not Working. In Brooklyn, the town green is located at the convergence of a number of residential and commercial zoning districts. The zoning regulations establishing these districts failed to address the preservation of their rural character. Canterbury, on the other hand, had a Rural Agricultural Zone in place, where all development was permitted by special exception, but the special exception criteria did not sufficiently address character preservation concerns. No Desire to Enact Historic Districts. Each town had, in the past, investigated establishing a local historic district under the state’s enabling legislation for historic districting. Both efforts failed, for two reasons: (1) neither community could obtain the two-thirds vote required to establish such a district under the Connecticut General Statutes; and (2) neither community could overcome the perception that Historic District Commissions amount to nothing more than another layer of bureaucracy associated with stopping development and/or are driven by the goal of "freezing the town in time." Growth vs. Quality of Life. Both towns wanted to protect their rural image, but at the same time wished to enhance their future economic development potential. How the Act Became Law The bill that would become the Village Districts Act, House Bill No. 5485, sponsored by State Representative Jefferson B. Davis, was the first attempt in Connecticut to explicitly consider non-historic district-based aesthetic regulation. At the time, it may very well have been the only legislative initiative of its type in the United States. The initial draft of the bill and the accompanying legislative history identified two primary purposes for its introduction in the state legislature: the preservation of rural character and the regulation of sprawl. As discussed below, it became necessary to broaden the bill’s scope to encompass the preservation of the distinctive character of any municipality. Floor Changes. The people most closely involved in the passage of House Bill No. 5485 consistently register surprise at the ease with which this bill became a law. Those who were not involved with the passage of the bill and became aware of it only after its enactment variously referred to it as a "stealth bill." The bill remained virtually intact from the beginning of the process to the end, with two exceptions. The floor debate on the bill was minimal and amendments centered on one passage and one word. Removal of Local Control of DOT. The initial bill contained a provision that "[e]ach State agency, department or institution undertaking a project impacting a village district, including, but not limited to, the construction, alteration or maintenance of roadways and the erection, repair, modification or demolition of structures shall consider the provisions of the regulations established under this section. Any municipality aggrieved by a decision of a state agency, department or institution under this subsection may appeal such decision in accordance with Section 4-183 of the General Statutes." Predictably, the DOT lobbied to have this provision removed from the bill, because it would allow localities to influence the DOT’s decision-making powers. Expansion Beyond Rural Character. The most critical amendment coming out of the floor debate was an expansion of the jurisdiction of the Act. Initially, the bill was proffered as a rural character preservation measure. In order to garner support from urban legislators, however, the word "rural" was removed and replaced with the word "distinctive" as a modifier of the word "character." This change makes the Act applicable to all towns and cities in Connecticut. Thus, a "Village District" can be established in a neighborhood in Hartford or New Haven as well as in areas of rural towns like Brooklyn or Canterbury. The 2000 Amendments. On May 26, 2000, Governor Rowland signed into law Public Act 00-145, "An Act Concerning Village Districts," effective October 1, 2000. Public Act 00-145 was basically a housekeeping amendment to the Act. The amendments passed with little fanfare. What Does the Act, As Amended, Require? The Village Districts Act authorizes zoning commissions and planning & zoning commissions to establish "village districts" as part of the regulations adopted under their general zoning enabling legislation or any special act so that municipalities can protect the distinctive character, landscape or historic value of the areas so identified in the municipal Plan of Conservation and Development. The Act is divided into three main sections: (1) Zoning Regulations; (2) Compatibility Objectives; and (3) Review by the Village District Consultant. Zoning Regulations. Under the Act, commissions may regulate new construction, substantial reconstruction and rehabilitation of properties within the district and in view from public roadways. The scope of such regulations includes the design and placement of buildings, the maintenance of public views, the design, paving materials, and placement of public roadways, and other elements that the commission may deem appropriate to maintain and protect the character of the district. Simply put, commissions are granted broad discretion in regulating a wide variety of aesthetic concerns, be it in the idiom of a TND or otherwise. In establishing zoning regulations for the adoption of a village district, commissions are required to consider the design, relationship and compatibility of structures, plantings, signs, roadways, street hardware and other objects in public view. Specifically, the Act requires that the regulations:
Compatibility Objectives. The Village District Act also requires that all development in the village district shall be designed to achieve the following compatibility objectives:
Review by the Village District Consultant. Once a municipality has properly established a village district, any application for new construction and substantial reconstruction in view from a public roadway "shall be subject to review and recommendation" by the "Village District Consultant." This Consultant can be an architect or an architectural firm, landscape architect or AICP member selected by and under contract to the regulatory body. The commission may, in the alternative designate as its Consultant the municipality’s Architectural Review Board but only if that board has at least one member who is an architect, a landscape architect or an AICP member. After reviewing the application, the Consultant may submit a report to the commission within 35 days of receipt of the application. The report and recommendation are merely advisory, since they are to be "considered by the commission in making their [sic] decision." In addition, the Act provides that the commission may seek the recommendations of "any town or regional agency or outside specialist with which it consults." Examples of organizations that may be consulted include the regional planning agency, the local historical society, the Connecticut Trust for Historic Preservation, and The University of Connecticut College of Agriculture and Natural Resources. Finally, the Act provides that if the Commission grants or denies an application, it is required to state upon the record the reasons for the decision. In the event of a denial, the commission must cite the specific regulations under which the application is denied. The Act provides for publication of the decision and that a decision will not become effective until it is recorded in the land records of the town in which the premises are located. While the Village Districts Act does not expressly enable TND regulations, as Pennsylvania’s and Wisconsin’s Acts do, the Act can certainly accommodate TND regulations given its broad mandate to protect the distinctive character of an area. Aside from the manner in which these types of regulations can be written and how the compatibility objectives can be made into enforceable and predictable regulations is a question going to the heart of enabling. How can municipalities create character regulations other than in village districts when the Village Districts Act can be considered a legislative override of the provisions in Connecticut General Statutes Section 8-2 (Connecticut’s general zoning enabling legislation), which allow that "regulations shall be made with reasonable consideration to the character of the district and its peculiar suitability for particular uses and with a view to conserving the value of the buildings … throughout such municipality" and that "regulations may be made with reasonable consideration for the protection of historic factors?" Such an examination is well beyond the ken of this paper, but this issue promises to provide substantial grist for the mill as the Village Districts Act is implemented by Connecticut municipalities, and ultimately, by its courts. Pennsylvania’s Approach to Traditional Neighborhood Development Enabling Laws: Act 68 of 2000On June 22, 2000, Pennsylvania Governor Tom Ridge signed into law Pennsylvania Act 68 of 2000, a major reform package concerned with updating the Pennsylvania Municipalities Planning Code, Act 247 as amended ("MPC"), to promote smart growth in the Commonwealth. Article VII-A of the Act contains TND enabling and is every bit as detailed in certain aspects as Connecticut's is broad. Pennsylvania seems to be taking a highly prescriptive, "top-down" approach to enabling its municipalities to enact TND regulations. What Precipitated the Interest in TND's? Since the early 1990's, a number of amendments to the MPC have been proposed, but none of these proposals became law. Over the past several years, however, Pennsylvania residents have expressed a growing level of frustration over sprawl and its consequences. This groundswell is especially focused in the growing areas of the Commonwealth, where residents are coping with increasing levels of traffic at the same time they are losing farmland and open space. Increasingly, residents are making their voices heard by the members of the General Assembly. In the mid-1990's, Pulitzer-prize winning journalist and author Thomas Hylton documented the steady change in the living environments in and around his community and decided to showcase the problem of sprawl in the award-winning book, Save Our Land, Save Our Towns. This provocative book captures Pennsylvania's past and present in a strikingly visual manner. In this book, Mr. Hylton illustrates the growing concern that Pennsylvania's communities are losing their sense of place, exemplified by the tradition of small crossroad villages with center squares and a mix of businesses and residences, at an alarming rate. By the late 1990's, the Legislature and Governor were ready to give new tools to communities to develop more efficiently and cooperatively, and embarked on a comprehensive amendment to the MPC to accomplish this. Language enabling the creation of TNDs was a part of this landmark legislation through the perseverance of Pennsylvania House member Robert Freeman, representing Easton. TNDs were arguably enabled under the MPC before the 2000 Amendments, but few communities, if any, attempted to do so. Through the dominant regulatory scheme in those communities that had enacted zoning and subdivision regulations, the building community was encouraged to continue to build what its members thought the suburban-oriented public wanted. Indeed, most of the communities in the Commonwealth with zoning and subdivision regulations did not promote alternative development patterns. Representative Freeman wanted to highlight one of those alternatives in the hopes that more municipalities would recognize it as a viable alternative to building suburban single-family houses on one-acre lots. TNDs in Pennsylvania Representative Freeman based his legislation on the "TND Checklist" contained in Andres Duany’s book Suburban Nation. It was Representative Freeman’s intent to not only bring more attention to the form of TND, but to make sure the development was actually executed in this form. The language contained in the MPC Amendments, especially those concerned with procedure, can be considered prescriptive by those unfamiliar with Pennsylvania planning law. However, it is similar in style to other parts of the MPC. When developing the TND language for inclusion in what was then House Bill 14 (introduced by Representative David Steil of Bucks County), Representative Freeman chose not to include TNDs with provisions enabling Planned Residential Development ("PRD"). This decision made sense since both the general public and municipal officials view PRDs negatively. PRDs differ from Planned Unit Developments ("PUDs") in that emphasis is placed upon residential uses to the virtual exclusion of commercial uses. Due to past practices, PRDs are associated with higher density development, usually allowing for townhouses and apartments in areas where only single-family residences could be located. This public perception has resulted in many municipalities removing PRDs from their zoning ordinances. The TND language was intended to stand alone in a separate article of the MPC so as to avoid confusion or linkages with PRDs and was enacted in that form. The language itself sets forth guidelines for TND development and outlines the characteristics of a TND. It is a new development tool, providing an option to create new communities in a municipality through either an overlay or separate zoning district. What Were the Hurdles in Enacting the Law? The TND language was not included in the original draft of House Bill 14 but was instead proposed during the lengthy review and discussion process. The legislation did meet with some resistance by a few legislators, one paraphrased comment being: "we are now living in the 1990's, not the 1940's and we moved away from that type of development ... why should we go backwards?" The Pennsylvania Builders Association also had concerns regarding how a TND could be enacted, and it preferred an overlay zone preferred rather than by a district designation. Concerns were eliminated through compromised language, and what is now enacted reflects very minor changes to the original draft. Where are We in Pennsylvania? Interest in the creation of TNDs is materializing, due in part to it being highlighted in the legislation and due in part to the interest surfacing for more compact, pedestrian, community-oriented development. Municipalities in southeast and central Pennsylvania are now developing TND ordinances. A TND ordinance is under consideration in the State College area and may be the test case for the legislation. It is far too early to tell how the TND enabling legislation will translate on the ground. It is anticipated, however, that regulations developed under this legislation will allow for the needed flexibility to develop TNDs in keeping with the small town character prevalent throughout Pennsylvania. At the same time, the regulations will need to be strong enough to obtain the desired results -- to allow for continued growth of our communities in a more pedestrian-oriented environment. The tool is there for communities, and, in turn, developers. It is now a matter of acceptance at the municipal level. Wisconsin’s Approach to Traditional Neighborhood Development Enabling Laws: 1999 Wisconsin Act 9Wisconsin also follows a "top-down" approach, but in a different way. Section 66.1027 of the Wisconsin Statutes, previously signed into law in October 1999 by Governor Tommy Thompson as part of the state budget bill (1999 Wisconsin Act 9), requires that by January 1, 2002, every city and village with a population of at least 12,500 shall enact a traditional neighborhood development ordinance. The local ordinance must be similar to a model ordinance developed by the University of Wisconsin Extension. The model ordinance is currently before the Legislature for approval, and the Legislature is expected to act by the end of March 2001. The requirement for traditional neighborhood development ordinances affects approximately 60 cities and villages in the state, based on the latest population estimates from the United States Census Bureau. Cities or villages that reach a population of at least 12,500, after January 1, 2002, must enact a traditional neighborhood development ordinance that is similar to the model ordinance within 11 months of the time the population of the city or village reaches at least 12,500. The law defines traditional neighborhood development as "a compact, mixed use neighborhood where residential, commercial and civic buildings are within close proximity to each other." The law also specifies that the ordinance is not required to be mapped. These provisions in the law provide the basic framework for the model ordinance. The traditional neighborhood development requirement is meant to provide an option for developers seeking an alternative approach to conventional development. While the legislature did not require cities and villages to map the ordinance, local communities may, at their option, map traditional neighborhood development districts. 1000 Friends of Wisconsin, a land use advocacy organization modeled after 1000 Friends of Oregon, developed the idea to have the state mandate the local adoption of traditional neighborhood development ordinances. 1000 Friends of Wisconsin worked successfully with State Senator Brian Burke, D-Milwaukee, to introduce the legislation as an amendment to the state budget bill. Ultimately the legislation received support from a broad coalition of interest groups including builders, realtors, local government organizations, and environmentalists. Support for the legislation was strengthened by experiences related to the approval process for a traditional neighborhood development called "Middleton Hills" located in Middleton, Wisconsin, a suburb of Madison. Middleton Hills was developed by Marshal Erdman & Associates and designed by Duany Plater-Zyberk & Company. Middleton Hills was proposed in 1993 as a planned development district (much like a planned unit development) as provided in the City's ordinances. The City, however, wanted to apply many of its conventional standards, such as street widths and minimum lot sizes, to the project. Ultimately, the project overcame these hurdles. Nevertheless, many developers would have walked away from the project because of the added costs associated with the approval process. Accordingly, the Wisconsin law is intended to remove some of the difficulties developers encounter when they propose traditional neighborhood developments. By changing the permitting processes of local governments which discourage traditional neighborhood developments, the law seeks to promote the development of traditional neighborhood developments. Only time will tell whether the Wisconsin approach is successful in promoting traditional neighborhood developments. ConclusionState enabling legislation for TND regulations can take many forms. In some states, the need for express enabling legislation may not be an issue at all. Many states have planned unit development enabling legislation as well as zoning and subdivision enabling legislation that would allow for TNDs, but many municipalities are still apprehensive about enacting TND regulations. Accordingly, some state legislatures are beginning to promote TND patterns through new enabling laws. State legislatures can encourage TND through broad character protection enabling legislation, as in the State of Connecticut, or through express enabling for TNDs, as in the Commonwealth of Pennsylvania. Whether a local community enacts TND regulations under these enabling schemes is left to local community. State legislatures can also require that certain local governments adopt TND regulations, as in the case of Wisconsin. Here, the targeted local governments do not have a choice whether or not to adopt TND regulations. ?The recent legislation in all three states raises the broader issue of the state role in trying to legislate design issues. How much should the state legislature get involved and how much flexibility should be left to local governments? For many advocates of TND, the issue is how to persuade local governments to accept and promote the principles of TND. Indeed, the task may be to persuade local governments to change their local ordinances to remove the disincentives or prohibitions that discourage TND. Another issue is whether TND regulations are the next evolution of planned unit development ordinances. Planned unit development ordinances were initially developed in part as a way of introducing flexibility in light of the shortcoming of conventional Euclidean zoning. Local planned unit development ordinances, however, often incorporate standards from conventional zoning and subdivision ordinances that are inconsistent with principles of TND. The APA's model enabling legislation promotes the idea of planned unit development ordinances dedicated to TND standards. The model ordinance developed by the University of Wisconsin Extension does much the same thing. APPENDIX AEXCERPT FROM JANUARY 15, 2001 DRAFT FINAL EDITION OF THE AMERICAN PLANNING ASSOCIATION'S GROWING SMARTSM LEGISLATIVE GUIDEBOOK: MODEL STATUTES FOR MANAGEMENT AND THE PLANNING OF CHANGE, CHAPTER 8. Commentary: Planned Unit Development Traditional zoning codes adopted by local governments under the Standard Zoning Enabling Act were intended to regulate development and land use on a lot-by-lot basis. When large-scale residential and commercial developments began to appear in the 1950s and 1960s, zoning fell short of meeting the need to mix land uses, provide transitions between zones, preserve open space, and provide standards for improvements and amenities such as roads, parks, and utilities. Rigid zoning controls also squelched creativity in land planning, site design, and protection of environmentally sensitive lands. In the 1950s, cluster developments constituted a response to the proliferation of monotonous subdivisions of identical single-family detached houses. These newer developments featured transfers of density from one part of the site to another where dwelling units were grouped or concentrated, common open space that was often managed by a community or homeowners association, and curvilinear and circular street patterns. With prototypes of large developments emerging everywhere in the late 1950s and 1960s, the only thing lacking was a legal construct in which local governments could manage the desired flexibility and innovation. Enter planned unit developments (PUD). The intent of the PUD zoning provisions, and later, state enabling legislation adopted in the 1960s, was to give a legal basis to an emerging innovative design technique. Merging zoning and subdivision control, PUD provisions allow developers to mix land uses, housing types, and densities, and to get development approval on large developments that will be built in phases over a number of years. The benefits of PUDs to local governments are in the amenities and infrastructure improvements that developers provide in exchange for flexibility and, ideally, in better-planned neighborhoods, office parks, and other developments than may result with traditional zoning. The potential drawbacks of PUDs lie in the level of discretion afforded the agency or board charged with review and approval. Local governments, through PUD ordinances and with authority granted by the state, must provide sufficiently detailed criteria upon which decisions are made so as to avoid abuse of discretion on the part of the reviewing body. The trick, however, is to do so while also encouraging and allowing innovation in land-use planning. Legislation for PUDs Local governments began incorporating PUD provisions into zoning ordinances in the 1950s and 1960s, sometimes before states had adopted enabling legislation expressly permitting the local governments to do so. The rationale of the early drafters of PUD ordinances was that it was simply an extension of the use of the traditional police power to protect the health, safety, and general welfare. The first model PUD statute was drafted by the late Chicago land use lawyer Richard Babcock and several other attorneys for a joint project of the Urban Land Institute and the National Association of Home Builders in 1965. The model was touted as a means to use "recent planning innovations" to better serve the general objectives of the Standard Zoning Enabling Act and to meet new demands for housing. Under the act, local governments were granted authority to enact a PUD ordinance that must: refer to the state act, include a statement of objectives for PUDs, designate a local agency to review PUDs, and provide development standards and procedures for their review and approval. The act required local governments to include density standards but, to meet the purpose of flexibility, suggested that local governments allow density to vary among different parts of the PUD site. The model also paid particular attention to assignment of responsibility for maintenance and upkeep of the common open space, noting that this issue had frightened off some municipalities from allowing PUDs prior to that time. The model permitted dedication of the open space to the local government, but also gave it the authority to require a private organization, such as a home owners association, to maintain the space. An added measure allowed the local government to assume responsibility for the open space on a year-to-year basis if it was not adequately maintained and further stated that assuming responsibility does not constitute a taking. Finally, the model dealt with the issue of rights and responsibilities of the public and private land owners in the carrying out the plan for the PUD and in modifications to the plan. The ULI/Babcock model was enacted almost in its entirety in New Jersey and Pennsylvania. Other states have that have adopted PUD legislation of varying detail include Arkansas, Colorado, Connecticut, Idaho, Kentucky, Massachusetts, Montana, Nevada, New York, and Ohio. The American Law Institute also promulgated a model statute for PUDs in 1975 in A Model Land Development Code. The ALI Code authorized PUDs through a "special development permit," which is akin to a conditional use. The Code provided far less prescriptive detail than the ULI /Babcock model, opting instead to grant local governments the authority to devise their own PUD regulations based on individual needs, and thus maximizing the flexibility that is at the heart of the PUD concept. One significant addition in the ALI model was the requirement that the plan for the PUD be consistent with the comprehensive plan of the local government (termed the "land development plan" in the Code's words). A Model Statute The model statute in Section 8-303 below authorizes the adoption of a planned unit development ordinance but only if the local government has first adopted a local comprehensive plan. Though planned unit development is inherently concerned with land being developed as a single entity, PUD ordinances under the Section apply equally to property with one owner and land with multiple owners. PUD may be made mandatory at the local government's option. The statute, in paragraph (6), describes the minimum contents of a PUD ordinance. Subparagraph (6)(f) requires that the ordinance contains site planning standards against which any proposed PUD is to be reviewed. Two alternatives for PUD review and approval are provided, in the manner of a subdivision (for projects of 10 or more acres or, if subdivision is also proposed, under 10 acres as well), or in the manner of a conditional use (for projects less than 10 acres if no subdivision is proposed). Approval of a PUD constitutes a development permit. In approving the development permit for a PUD, the local government must find that the PUD is consistent with the local comprehensive plan, is likely to be compatible with development and land use permitted as of right by the zoning ordinance on substantially all land in the vicinity of the proposed planned unit development, will not significantly interfere with the enjoyment of other land in its vicinity, and satisfies other ordinance requirements. The model statute contains an option that the site planning standards may also encourage traditional neighborhood development. Paragraph (8) contains a description of the characteristics of such development. 8-303 Planned Unit Development; Traditional Neighborhood Development 1. The legislative body of a local government may adopt and amend a planned unit development ordinance in the manner for land development regulations pursuant to Section [8-103 or cite to some other provisions, such as a municipal charter or state statute governing the adoption of ordinances]. 2. The purposes of a planned unit development ordinance are to:
3. As used in this Section and in all other Sections of this Act, "Planned Unit Development" means one or more lots, tracts, or parcels of land to be developed as a single entity, the plan for which may propose density or intensity transfers, density or intensity increases, and mixing of land uses, or any combination thereof, and which may not correspond in lot size, bulk, or type of dwelling or building, use, density, intensity, lot coverage, parking, required common open space, or other standards to zoning use district requirements that are otherwise applicable to the area in which it is located. 4. The legislative body of a local government may adopt a planned unit development ordinance only after it has adopted a local comprehensive plan. 5. The application of a planned unit development ordinance to a proposed development:
6. A planned unit development ordinance adopted pursuant to this Section shall include the following minimum provisions:
g. where the planned unit development is also proposed as a subdivision, procedures for the joint review of the proposed planned unit development as a subdivision; and h. an incorporation by reference of the improvements and exactions ordinance pursuant to Section [8-601]. 7. A planned unit development ordinance may provide for, as part of the site planning standards described in subparagraph (6)(f) above, the authorization of uses, densities, and intensities that do not correspond with or are not expressly permitted by the zoning use district regulations for the area in which a planned unit development is located, provided that the local comprehensive plan contains a policy in written and/or in mapped form encouraging mixed use development and/or development at higher overall densities or intensities if such development is subject to planned unit development requirements. The ordinance may provide that:
8. A planned unit development ordinance may also contain site planning standards, as described in subparagraph (6)(f) above, for traditional neighborhood development that are intended to ensure:
9. Where a planned unit development ordinance contains site planning standards for a traditional neighborhood development, the legislative body of a local government may also adopt by ordinance a manual of graphic and written design guidelines to assist applicants in the preparation of proposals for a traditional neighborhood development.
10. The site planning standards shall require that any common open space resulting from the application of such standards on the basis of density or intensity of use be set aside for the use and benefit of the residents of the proposed planned unit development and shall include provisions by which the amount and location of any common open space shall be determined and its improvement and maintenance as common open space be secured.
11. The approval of a proposed planned unit development pursuant to this Section shall constitute a development permit, which shall be based on findings by the local government that the proposed planned unit development:
12. A proposed planned unit development shall be reviewed and approved:
13. The director of the local planning agency shall record the approval of a planned unit development on the zoning map or map series as required by Section [8-201(3)(n)] by reference to the number of the development permit, but such a recordation shall not constitute an amendment to the zoning map or map series. 14. The planned unit development ordinance may contain provisions for the preliminary plan of the proposed planned unit development to be divided into reasonable phases, and thereafter the review of final plats by the local government according to the phases in the preliminary plan, if the total area is [10] or more acres pursuant to paragraph (12) above. APPENDIX B MODEL ACT POSTED BY ANDRES DUANY ON THE "PRO-URB" LISTSERV, JUNE 12, 2000. MODEL ACT To provide that each county, municipality, or other unit of local government in the state should develop strategies to allow Smart Growth as a development option; to do so by eliminating impediments in the existing codes; to create and make available a new state model code by which the smart growth option is certifiable; to provide for state certification of local government strategies; to provide state funding incentives for local governments with certified strategies; to provide for related matters; to provide for an effective date and applicability; to repeal conflicting laws; and for other purposes. BE IT ENACTED BY __________________________: SECTION 1. Title __________, relating to local government, is amended by adding at its end a new chapter to read as follows: Chapter 100. 100-1. This chapter shall be known and may be cited as the "Traditional Neighborhood Development Act of 2001." (The TND Act) 100-2. The legislature finds and determines that many of the planning, zoning, and permitting processes of units of local government in this state inadvertently discourage, provide disincentives to, or even prohibit the desirable Smart Growth development practice of Traditional Neighborhood Development. This Act is intended to, and shall be liberally construed to encourage units of local government to develop strategies to allow rather than deter Traditional Neighborhood Development and that such strategies should be optional and market-driven rather than through government requirement. The legislature finds and determines that Traditional Neighborhood Development would increase consumer choice, will have the desirable result of reducing land consumption and transportation burdens. 100-3. Each county, municipality, or other local government unit in this state which exercises planning, zoning, or permitting functions is encouraged to develop a strategy to allow and to remove disincentives and barriers to Smart Growth through the provision of a specific Traditional Neighborhood Development code. 100-4. For purposes of this chapter, Smart Growth is construed to be development in a neighborhood pattern, which meets all, or most of the following criteria:
100-5. Each county, municipality, or other local government unit in this state, which adopts a strategy as provided in Code Section 100-4, may submit its strategy for certification to the Department of ________________. If the department determines that the strategy conforms to and meet the goals of this chapter, the department shall certify the strategy as being in conformance with this chapter. 100-6. Each county, municipality, or other local government unit in this state which has a strategy certified under this chapter shall be eligible for grants from the Department of ______________ from funds appropriated or otherwise made available for purposes of this chapter. Such grants awarded each year shall be distributed so that each participating county, municipality, or other local government unit receives its pro rata share of all grants for that year, according to population. 100-7. The Department of ______________ may adopt rules and regulations as necessary or appropriate for the administration of this chapter. SECTION 2. This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval. SECTION 3. All laws and parts of laws in conflict with this Act are repealed. APPENDIX C CONNECTICUT’S VILLAGE DISTRICTS ACT, AS CODIFIED AT CONNECTICUT GENERAL STATUTES SECTION 8-2J Sec. 8-2j. Village districts. Compatibility objectives with other uses in immediate neighborhood. Applications. Village district consultant. (a) The zoning commission of each municipality may establish village districts as part of the zoning regulations adopted under section 8-2 or under any special act. Such districts shall be located in areas of distinctive character, landscape or historic value that are specifically identified in the plan of conservation and development of the municipality. (b) The regulations establishing village districts shall protect the distinctive character, landscape and historic structures within such districts and may regulate, on and after the effective date of such regulations, new construction, substantial reconstruction and rehabilitation of properties within such districts and in view from public roadways, including, but not limited to, (1) the design and placement of buildings, (2) the maintenance of public views, (3) the design, paving materials and placement of public roadways, and (4) other elements that the commission deems appropriate to maintain and protect the character of the village district. In adopting the regulations, the commission shall consider the design, relationship and compatibility of structures, plantings, signs, roadways, street hardware and other objects in public view. The regulations shall establish criteria from which a property owner and the commission may make a reasonable determination of what is permitted within such district. The regulations shall encourage the conversion, conservation and preservation of existing buildings and sites in a manner that maintains the historic or distinctive character of the district. The regulations concerning the exterior of structures or sites shall be consistent with: (A) The "Connecticut Historical Commission - The Secretary of the Interior's Standards for Rehabilitation and Guidelines for Rehabilitating Historic Buildings", revised through 1990, as amended; or (B) the distinctive characteristics of the district identified in the municipal plan of conservation and development. The regulations shall provide (i) that proposed buildings or modifications to existing buildings be harmoniously related to their surroundings, and the terrain in the district and to the use, scale and architecture of existing buildings in the district that have a functional or visual relationship to a proposed building or modification, (ii) that all spaces, structures and related site improvements visible from public roadways be designed to be compatible with the elements of the area of the village district in and around the proposed building or modification, (iii) that the color, size, height, location, proportion of openings, roof treatments, building materials and landscaping of commercial or residential property and any proposed signs and lighting be evaluated for compatibility with the local architectural motif and the maintenance of views, historic buildings, monuments and landscaping, and (iv) that the removal or disruption of historic traditional or significant structures or architectural elements shall be minimized. (c) All development in the village district shall be designed to achieve the following compatibility objectives: (1) The building and layout of buildings and included site improvements shall reinforce existing buildings and streetscape patterns and the placement of buildings and included site improvements shall assure there is no adverse impact on the district; (2) proposed streets shall be connected to the existing district road network, wherever possible; (3) open spaces within the proposed development shall reinforce open space patterns of the district, in form and siting; (4) locally significant features of the site such as distinctive buildings or sight lines of vistas from within the district, shall be integrated into the site design; (5) the landscape design shall complement the district's landscape patterns; (6) the exterior signs, site lighting and accessory structures shall support a uniform architectural theme if such a theme exists and be compatible with their surroundings; and (7) the scale, proportions, massing and detailing of any proposed building shall be in proportion to the scale, proportion, massing and detailing in the district. (d) All applications for new construction and substantial reconstruction within the district and in view from public roadways shall be subject to review and recommendation by an architect or architectural firm, landscape architect, or planner who is a member of the American Institute of Certified Planners selected and contracted by the commission and designated as the village district consultant for such application. Alternatively, the commission may designate as the village district consultant for such application an architectural review board whose members shall include at least one architect, landscape architect or planner who is a member of the American Institute of Certified Planners. The village district consultant shall review an application and report to the commission within thirty-five days of receipt of the application. Such report and recommendation shall be entered into the public hearing record and considered by the commission in making their decision. Failure of the village district consultant to report within the specified time shall not alter or delay any other time limit imposed by the regulations. (e) The commission may seek the recommendations of any town or regional agency or outside specialist with which it consults, including, but not limited to, the regional planning agency, the municipality's historical society, the Connecticut Trust for Historic Preservation and The University of Connecticut College of Agriculture and Natural Resources. Any reports or recommendations from such agencies or organizations shall be entered into the public hearing record. (f) If the commission grants or denies an application, it shall state upon the record the reasons for its decision. If a commission denies an application, the reason for the denial shall cite the specific regulations under which the application was denied. Notice of the decision shall be published in a newspaper having a substantial circulation in the municipality. An approval shall become effective in accordance with subsection (b) of section 8-3c. (g) No approval of a commission under this section shall be effective until a copy thereof, certified by the commission, containing the name of the owner of record, a description of the premises to which it relates and specifying the reasons for its decision, is recorded in the land records of the town in which such premises are located. The town clerk shall index the same in the grantor's index under the name of the then record owner and the record owner shall pay for such recording. APPENDIX D EXCERPT FROM PENNSYLVANIA’S ACT 68 OF 2000 ARTICLE VII-A Traditional Neighborhood Development Section 701-A. Purposes and Objective. (a) In an era of increasing sprawled development and of growing demand for housing of all types and design, this article grants powers to municipalities for the following purposes: (1) to insure that the provisions of Article VI, which are concerned in part with the uniform treatment of dwelling type, bulk, density, intensity and open space within each zoning district, shall not be applied to the improvement of land by other than lot by lot development in a manner that would distort the objectives of Article VI; (2) to encourage innovations in residential and nonresidential development and renewal so that the growing demand for housing and other development may be met by greater variety in type, design and layout of dwellings and other buildings and structures and by the conservation and more efficient use of open space ancillary to said dwellings and uses; (3) to extend greater opportunities for better housing and recreation to all citizens and residents of this Commonwealth; (4) to encourage a more efficient use of land and of public services and to reflect changes in the technology of land development so that economies secured may enure to the benefit of those who need homes and for other uses; (5) to promote the implementation of the objectives of the municipal or multimunicipal comprehensive plan for guiding the location of growth; (6) to provide a procedure, in aid of these purposes, which can relate the type, design and layout of residential and nonresidential development to the particular site and the particular demand for housing existing at the time of development in a manner consistent with the preservation of the property values within existing residential and nonresidential areas; and (7) to insure that the increased flexibility of regulations over land development authorized herein is carried out under such administrative standards and procedures as shall encourage the disposition of proposals for land development without undue delay. (b) The objective of a traditional neighborhood development is to establish a community, which is pedestrian-oriented with parks, a central commons or square and civic buildings for social activity, recreation and community functions. Generally, there is a hierarchy of streets laid out in a grid or network that serves the needs of the pedestrian and automobile equally. Section 702-A. Grant of Power. The governing body of each municipality may enact, amend and repeal provisions of a zoning ordinance in order to fix standards and conditions for traditional neighborhood development. The provisions for standards and conditions for traditional neighborhood development shall be included within the zoning ordinance and the enactment of the traditional neighborhood development provisions shall be in accordance with the procedures required for the enactment of an amendment of a zoning ordinance as provided in Article VI of this act. Pursuant to those provisions the governing body may approve, modify or disapprove any development plan within the municipality adopting the provisions or designate the planning agency as its official agency for such purposes. The provisions shall: (1) Specify whether the governing body, or the planning agency shall administer traditional neighborhood development provisions pursuant to this article; (2) Set forth the standards, conditions and regulations including, if desired, the use of overlay zones, for a traditional neighborhood development consistent with this article; and (3) Set forth the procedures pertaining to the application for, hearing on and tentative and final approval of a traditional neighborhood development, which shall be consistent with this article for those applications and hearings. Section 703-A. Transferable Development Rights. Municipalities electing to enact traditional neighborhood development provisions may also incorporate provisions for transferable development rights, on a voluntary basis, in accordance with express standards and criteria set forth in the ordinance and with the requirements of Article VI. Section 704-A. Applicability of Comprehensive Plan and Statement of Community Development Objectives. All provisions and all amendments to the provisions adopted pursuant to this article shall be based on and interpreted in relation to the statement of community development objectives of the zoning ordinance and shall be consistent with either the comprehensive plan for the development of the municipality prepared under this act or a statement of legislative findings in accordance with section 606. Every application for approval of a traditional neighborhood development either shall be based on and interpreted in relation to the statement of community development objectives, and shall be consistent with the comprehensive plan, or shall be based on and interpreted in relation to the statement of legislative findings. Section 705-A. Jurisdiction of County Planning Agencies. (a) When any county has adopted or amended traditional neighborhood development provisions in accordance with this article, a certified copy of the provisions or amended provisions shall be sent to every municipality within the county. (b) The powers of governing bodies of counties to enact, amend and repeal traditional neighborhood development provisions shall not supersede any local traditional neighborhood development, zoning or subdivision and land development ordinance that is already in effect or subsequently becomes effective in any municipality within the county, provided that a certified copy of that provision is filed with the county planning agency, if one exists. (c) All applications for tentative approval of traditional neighborhood development of land located within a municipality having adopted traditional neighborhood development provisions as set forth in this article shall be referred to the county planning agency, if one exists, for study and recommendation and such county planning agency shall be required to report to such municipality within 30 days or forfeit the right to review. Section 706-A. Standards and Conditions for Traditional Neighborhood Development. (a) All provisions adopted pursuant to this article shall set forth all the standards, conditions and regulations by which a proposed traditional neighborhood development shall be evaluated, and those standards, conditions and regulations shall be consistent with the following subsections. (b) The provisions adopted pursuant to this article shall set forth the uses permitted in a traditional neighborhood development, which uses may include, but shall not be limited to: (1) Dwelling units of any dwelling type or configuration, or any combination thereof. (2) Those nonresidential uses deemed to be appropriate for incorporation in the design of the traditional neighborhood development. (c) The provisions may establish regulations setting forth the timing of development among the various types of dwellings and may specify whether some or all nonresidential uses are to be built before, after or at the same time as the residential uses. (d) The provisions adopted pursuant to this article shall establish standards governing the density, or intensity of land use, in a traditional neighborhood development. The standards may vary the density or intensity of land use, otherwise applicable to the land under the provisions of a zoning ordinance of the municipality within the traditional neighborhood development in consideration of all of the following: (1) The amount, location and proposed use of common open space. (2) The location and physical characteristics of the site of the proposed traditional neighborhood development. (3) The location, design, type and use of structures proposed. (4) The minimum and maximum areas and dimensions of the properties and common open space within the proposed traditional neighborhood development. (e) In the case of a traditional neighborhood development proposed to be developed over a period of years, standards established in provisions adopted pursuant to this article may, to encourage the flexibility of housing density, design and type intended by this article: (1) Permit a variation in each section to be developed from the density, or intensity of use, established for the entire traditional neighborhood development. (2) Allow for a greater concentration of density or intensity of land use, within some section or sections of development, whether it be earlier or later in the development than upon others. (3) Require that the approval of such greater concentration of density or intensity of land use for any section to be developed be offset by a smaller concentration in any completed prior stage or by an appropriate reservation of common open space on the remaining land by a grant of easement or by covenant in favor of the municipality, provided that the reservation shall, as far as practicable, defer the precise location of such common open space until an application for final approval is filed, so that flexibility of development which is a prime objective of this article, can be maintained. (f) The standards for a traditional neighborhood development established by provisions adopted pursuant to this article may require that the common open space resulting from the application of standards for density, or intensity of land use, shall be set aside for the use and benefit of the residents in the development and may include provisions which shall determine the amount and location of the common open space and secure its improvement and maintenance for common open space use, subject, however, to the following: (1) The municipality may, at any time and from time to time, accept the dedication of land or any interest in the land for public use and maintenance, but the municipality need not require, as a condition of the approval of a traditional neighborhood development that land proposed to be set aside for common open space be dedicated or made available to public use. The provisions may require that the landowner provide for and establish an organization for the ownership and maintenance of the common open space, and that the organization shall not be dissolved nor shall it dispose of the common open space, by sale or otherwise, except to an organization conceived and established to own and maintain the common open space, without first offering to dedicate the same to the public. (2) In the event that the organization established to own and maintain common open space, or any successor organization, shall at any time after establishment of the traditional neighborhood development fail to maintain the common open space in reasonable order and condition in accordance with the development plan, the municipality may serve written notice upon such organization or upon the residents of the traditional neighborhood development setting forth the manner in which the organization has failed to maintain the common open space in reasonable condition, and the notice shall include a demand that the deficiencies of maintenance be corrected within 30 days thereof, and shall state the date and place of a hearing thereon which shall be held within 14 days of the notice. At the hearing the municipality may modify the terms of the original notice as to the deficiencies and may give an extension of time within which they shall be corrected. (3) If the deficiencies set forth in the original notice or in the modifications of the deficiencies shall not be corrected within said 30 days or any extension thereof, the municipality, in order to preserve the taxable values of the properties within the traditional neighborhood development and to prevent the common open space from becoming a public nuisance, may enter upon the common open space and maintain it for a period of one year. Maintenance by the municipality under this provision shall not constitute a taking of the common open space, nor vest in the public any rights to use it. (4) (i) Before the expiration of the one-year period set forth in paragraph (3), the municipality shall, upon its initiative or upon the request of the organization theretofore responsible for the maintenance of the common open space, call a public hearing upon notice to the organization, or to the residents of the traditional neighborhood development, to be held by the governing body or its designated agency, at which hearing the organization or the residents of the traditional neighborhood development shall show cause why the maintenance by the municipality shall not, at the option of the municipality, continue for a succeeding year. (ii) If the governing body, or its designated agency, shall determine that the organization is ready and able to maintain the common open space in reasonable condition, the municipality shall cease to maintain it at the end of said year. If the governing body or its designated agency shall determine that the organization is not ready and able to maintain the common open space in a reasonable condition, the municipality may, in its discretion, continue to maintain the common open space during the next succeeding year and, subject to a similar hearing and determination, in each year thereafter. (5) The decision of the governing body or its designated agency shall be subject to appeal to court in the same manner, and within the same time limitation, as is provided for zoning appeals by this act. (6) The cost of maintenance by the municipality under this subsection shall be assessed ratably against the properties within the traditional neighborhood development that have a right of enjoyment of the common open space, and shall become a lien on those properties. The municipality at the time of entering upon the common open space for the purpose of maintenance shall file a notice of lien in the office of the prothonotary of the county, upon the properties affected by the lien within the traditional neighborhood development. (g) Provisions adopted pursuant to this article may require that a traditional neighborhood development contain a minimum number of dwelling units. (h) (1) The authority granted a municipality by Article V to establish standards for the location, width, course and surfacing of streets, walkways, curbs, gutters, streetlights, shade trees, water, sewage and drainage facilities, easements or rights-of-way for drainage and utilities, reservations of public grounds, other improvements, regulations for the height and setback as they relate to renewable energy systems and energy-conserving building design, regulations for the height and location of vegetation with respect to boundary lines, as they relate to renewable energy systems and energy-conserving building design, regulations for the type and location of renewable energy systems or their components and regulations for the design and construction of structures to encourage the use of renewable energy systems, shall be vested in the governing body or the planning agency for the purposes of this article. (2) The standards applicable to a particular traditional neighborhood development may be different than or modifications of the standards and requirements otherwise required of subdivisions authorized under an ordinance adopted pursuant to Article V, provided, however, that provisions adopted pursuant to this article shall set forth the limits and extent of any modifications or changes in such standards and requirements in order that a landowner shall know the limits and extent of permissible modifications from the standards otherwise applicable to subdivisions. (i) The provisions adopted pursuant to this article shall set forth the standards and criteria by which the design, bulk and location of buildings shall be evaluated, and all those standards and criteria for any feature of a traditional neighborhood development shall be set forth in such provisions with sufficient certainty to provide reasonable criteria by which specific proposals for a traditional neighborhood development can be evaluated. All standards in those provisions shall not unreasonably restrict the ability of landowners to relate their development plans to the particular sites and to the particular demands for housing existing at the time of development. (j) Provisions adopted pursuant to this article shall include a requirement that, if water is to be provided by means other than by private wells owned and maintained by the individual owners of lots within the traditional neighborhood development, applicants shall present evidence to the governing body or planning agency, as the case may be, that the traditional neighborhood development is to be supplied by a certificated public utility, a bona fide cooperative association of lot owners, or by a municipal corporation, authority or utility. A copy of a Certificate of Public Convenience from the Pennsylvania Public Utility Commission or an application for such certificate, a cooperative agreement, or a commitment or agreement to serve the area in question, whichever is appropriate, shall be acceptable evidence. Section 707-A. Enforcement and Modification of Provisions of the Plan. To further the mutual interest of the residents of the traditional neighborhood development and of the public in the preservation of the integrity of the development plan, as finally approved, and to insure that modifications, if any, in the development plan shall not impair the reasonable reliance of those residents upon the provisions of the development plan, nor result in changes that would adversely affect the public interest, the enforcement and modification of the provisions of the development plan as finally approved, whether those are recorded by plat, covenant, easement or otherwise, shall be subject to the following provisions: (1) The provisions of the development plan relating to: (i) the use, bulk and location of buildings and structures; (ii) the quantity and location of common open space, except as otherwise provided in this article; and (iii) the intensity of use or the density of residential units; shall run in favor of the municipality and shall be enforceable in law or in equity by the municipality, without limitation on any powers of regulation otherwise granted the municipality by law. (2) All provisions of the development plan shall run in favor of the residents of the traditional neighborhood development but only to the extent expressly provided in and in accordance with the terms of the development plan, and to that extent those provisions, whether recorded by plat, covenant, easement or otherwise, may be enforced at law or equity by those residents acting individually, jointly, or through an organization designated in the development plan toast on their behalf; provided, however, that no provisions of the development plan shall be implied to exist in favor of residents of the traditional neighborhood development except as to those portions of the development plan which have been finally approved and have been recorded. (3) All the provisions of the development plan authorized to be enforced by the municipality under this section may be modified, removed, or released by the municipality, except grants or easements relating to the service or equipment of a public utility, subject to the following conditions: (i) No modification, removal or release of the provisions of the development plan by the municipality shall affect the rights of the residents of the traditional neighborhood development to maintain and enforce those provisions, at law or equity, as provided in this section. (ii) No modification, removal or release of the provisions of the development plan by the municipality shall be permitted except upon a finding by the governing body or the planning agency, following a public hearing pursuant to public notice called and held in accordance with this article, that the modification, removal or release: (A) Is consistent with the efficient development and preservation of the entire traditional neighborhood development. (B) Does not adversely affect either the enjoyment of land abutting upon or across the street from the traditional neighborhood development or the public interest. (C) Is not granted solely to confer a special benefit upon any person. (4) Residents of the traditional neighborhood development may, to the extent and in the manner expressly authorized by the provisions of the development plan, modify, remove or release their rights to enforce the provisions of the development plan but no action by them shall affect the right of the municipality to enforce the provisions of the development plan in accordance with this section. Section 708-A. Sketch Plan Presentation. The municipality may informally meet with a landowner to informally discuss the conceptual aspects of the landowner's development plan prior to the filing of the application for tentative approval under section 709-A for the development plan. The landowner may present a sketch plan to the municipality for discussion purposes only, and during the discussion the municipality may make suggestions and recommendations on the design of the developmental plan, which shall not be binding on the municipality. Section 709-A. Application for Tentative Approval of Traditional Neighborhood Development. In order to provide an expeditious method for processing a development plan for a traditional neighborhood development under the provisions adopted pursuant to the powers granted in this article, and to avoid the delay and uncertainty which would arise if it were necessary to secure approval, by a multiplicity of local procedures, of a plat of subdivision as well as approval of a change in the zoning regulations otherwise applicable to the property, it is hereby declared to be in the public interest that all procedures with respect to the approval or disapproval of a development plan for a traditional neighborhood development and the continuing administration thereof shall be consistent with the following: (1) An application for tentative approval of the development plan for a traditional neighborhood development shall be filed by or on behalf of the landowner. (2) The application for tentative approval shall be filed by the landowner in such form, upon the payment of a reasonable fee and with the officials of the municipality as designated in the provisions adopted pursuant to this article. (3) All planning, zoning and subdivision matters relating to the platting, use and development of the traditional neighborhood development and subsequent modifications of the regulations relating thereto, to the extent the modifications are vested in the municipality, shall be determined and established by the governing body or the planning agency. (4) The provisions shall require only that information in the application as is reasonably necessary to disclose to the governing body or the planning agency: (i) the location, size and topography of the site and the nature of the landowner's interest in the land proposed to be developed; (ii) the density of land use to be allocated to parts of the site to be developed; (iii) the location and size of the common open space and the form of organization proposed to own and maintain the common open space; (iv) the use and the approximate height, bulk and location of buildings and other structures; (v) the area and dimensions of the properties and the common open space; (vi) the provisions for pedestrian circulation through the traditional neighborhood development; (vii) the feasibility of proposals for water supply and the disposition of sanitary waste and storm water; (viii) the substance of covenants, grants of easements or other restrictions proposed to be imposed upon the use of the land, buildings and structures including proposed easements or grants for public utilities; (ix) the provisions for parking of vehicles and the location and width of proposed streets and public ways; (x) the required modifications in the municipal land use regulations otherwise applicable to the subject property; (xi) the feasibility of proposals for energy conservation and the effective utilization of renewable energy sources; and (xii) in the case of development plans which call for development over a period of years, a schedule showing the proposed times within which applications for final approval of all sections of the traditional neighborhood development are intended to be filed, which schedule shall be updated annually, on the anniversary of its approval, until the development is completed and accepted. (5) The application for tentative approval of a traditional neighborhood development shall include a written statement by the landowner setting forth the reasons why, in the landowner's opinion, a traditional neighborhood development would be in the public interest and would be consistent with the comprehensive plan for the development of the municipality. (6) The application for and tentative and final approval of a development plan for a traditional neighborhood development prescribed in this article shall be in lieu offal other procedures or approvals, otherwise required pursuant to Articles V and VI. Section 710-A. Public Hearings. (a) Within 60 days after the filing of an application for tentative approval of a traditional neighborhood development pursuant to this article, a public hearing pursuant to public notice on said application shall be held by the governing body or the planning agency, if designated, in the manner prescribed in Article IX. (b) The governing body or the planning agency may continue the hearing from time to time, and where applicable, may refer the matter back to the planning agency for a report, provided, however, that in any event, the public hearing or hearings shall be concluded within 60 days after the date of the first public hearing. (c) The municipality may offer a mediation option as an aid in completing proceedings authorized by this section and by subsequent sections in this article prior to final approval by the governing body. In exercising such an option, the municipality and mediating parties shall meet the stipulations and follow the procedures set forth in Article IX. Section 711-A. The Findings. (a) The governing body, or the planning agency, within 60 days of the filing of the preliminary plan, shall, by official written communication, to the landowner, either: (1) grant tentative approval of the development plan as submitted; (2) grant tentative approval subject to specified conditions not included in the development plan as submitted; or (3) deny tentative approval to the development plan. (b) Failure to grant or deny tentative approval within the 60-day period shall be deemed to be a grant of tentative approval of the development plan as submitted. In the event, however, that tentative approval is granted subject to conditions, the landowner may, within 30 days after receiving a copy of the official written communication of the governing body notify the governing body of a refusal to accept all of the conditions, in which case, the governing body shall be deemed to have denied tentative approval of the development plan. In the event the landowner does not, within said period, notify the governing body of a refusal to accept all of the conditions, tentative approval of the development plan, with all of the conditions, shall stand as granted. (c) The grant or denial of tentative approval by official written communication shall include not only conclusions but also findings of fact related to the specific proposal and shall set forth the reasons for the grant, with or without conditions, or the denial, and the communication shall set forth with particularity in what respects the development plan would or would not be in the public interest, including, but not limited to, findings of fact and conclusions on the following: (1) in those respects in which the development plan is or is not consistent with the comprehensive plan for the development of the municipality; (2) the extent to which the development plan departs from zoning and subdivision regulations otherwise applicable to the subject property, including, but not limited to, density, bulk and area use and the reasons why such departures are or are not deemed to be in the public interest; (3) the purpose, location and amount of the common open space in the traditional neighborhood development, the reliability of the proposals for maintenance and conservation of the common open space, and the adequacy or inadequacy of the amount and purpose of the common open space as related to the proposed density and type of residential development; (4) the physical design of the development plan and the manner in which said design does or does not make adequate provision for public services, provide adequate control over vehicular traffic, and further the amenities of light and air, recreation and visual enjoyment; (5) the relation, beneficial or adverse, of the proposed traditional development to the neighborhood in which it is proposed to be established; and (6) in the case of a development plan which proposes development over a period of years, the sufficiency of the terms and conditions intended to protect the interests of the public and of the residents of the traditional neighborhood development in the integrity of the development plan. (d) In the event a development plan is granted tentative approval, with or without conditions, the governing body may set forth in the official written communication the time within which an application for final approval of the development plan shall be filed or, in the case of a development plan which provides for development over a period of years, the periods of time within which applications for final approval of each part shall be filed. Except upon the consent of the landowner, the time established between grant of tentative approval and an application for final approval shall not be less than three months and, in the case of developments over a period of years, the time between applications for final approval of each part of a plan shall be not less than 12 months. Section 712-A. Status of Plan After Tentative Approval. (a) The official written communication provided for in this article shall be certified by the municipal secretary or clerk of the governing body and shall be filed in the respective office, and a certified copy shall be mailed to the landowner. Where tentative approval has been granted, it shall be deemed an amendment to the zoning map, effective upon final approval, and shall be noted on the zoning map. (b) Tentative approval of a development plan shall not qualify a plat of the traditional neighborhood development for recording nor authorize development or the issuance of any building permits. A development plan which has been given tentative approval as submitted, or which has been given tentative approval with conditions which have been accepted by the landowner, and provided that the landowner has neither defaulted nor violated any of the conditions of the tentative approval, shall not be modified or revoked or otherwise impaired by action of the municipality pending an application or applications for final approval, without the consent of the landowner, provided an application or applications for final approval is filed or, in the case of development over a period of years, provided applications are filed, within the periods of time specified in the official written communication granting tentative approval. (c) In the event that a development plan is given tentative approval and thereafter, but prior to final approval, the landowner shall elect to abandon said development plan and shall so notify the governing body in writing, or in the event the landowner shall fail to file application or applications for final approval within the required period of time or times, as the case may be, the tentative approval shall be deemed to be revoked and all that portion of the area included in the development plan for which final approval has not been given shall be subject to those local ordinances otherwise applicable thereto as they may be amended from time to time, and the same shall be noted on the zoning map and in the records of the municipal secretary or clerk of the municipality. Section 713-A. Application for Final Approval. (a) An application for final approval may be for all the land included in a development plan or, to the extent set forth in the tentative approval, for a section thereof. The application shall be made to the official of the municipality designated by the ordinance and within the time or times specified by the official written communication granting tentative approval. The application shall include any drawings, specifications, covenants, easements, performance bond and such other requirements as may be specified by ordinance, as well as any conditions set forth in the official written communication at the time of tentative approval. A public hearing on an application for final approval of the development plan, or part thereof, shall not be required provided the development plan, or the part thereof, submitted for final approval, is in compliance with the development plan theretofore given tentative approval and with any specified conditions attached to it. (b) If the application for final approval is filed, together with all drawings, specifications and other documents in support of the application, and as required by the ordinance and the official written communication of tentative approval, the municipality shall, within 45 days of such filing, grant the development plan final approval. (c) (1) In the event the development plan as submitted contains variations from the development plan given tentative approval, the approving body may refuse to grant final approval and shall, within 45 days from the filing of the application for final approval, so advise the landowner in writing of the refusal, setting forth in the notice the reasons why one or more of the variations are not in the public interest. (2) In the event of refusal by the approving body, the landowner may take either of the following alternate actions: (i) refile the application for final approval without the variations objected; or (ii) file a written request with the approving body that it hold a public hearing on the application for final approval. (3) The landowner may take alternate action under paragraph (2), at any time within which the landowners shall be entitled to apply for final approval, or if the time for applying for final approval shall have already passed at the time when the landowner was advised that the development plan was not in substantial compliance, then the alternate action must be taken within 30 additional days. (4) In the event the landowner fails to take either alternate actions within the requisite time, the development plan shall be deemed abandoned. (5) Any public hearings under this subsection shall beheld pursuant to public notice within 30 days after the request for the hearing is made by the landowner, and the hearing shall be conducted in the manner prescribed in this article for public hearings on applications for tentative approval. Within 30 days after the conclusion of the hearing, the approving body shall by official written communication either grant final approval to the development plan or deny final approval. The grant or denial of final approval of the development plan shall, in cases arising under this section, be in the form and contain the findings required for an application for tentative approval set forth in the article. (d) (1) A development plan, or any part thereof, which has been given final approval shall be so certified without delay by the approving body and shall be filed of record forth within the office of the recorder of deeds before any development shall take place in accordance with the plan. (2) Upon the filing of record of the development plan, the zoning and subdivision regulations otherwise applicable to the land included in the plan shall cease to apply to it. (3) Pending completion, in accordance with the time provisions stated in section 508, of the traditional neighborhood development or of that part thereof, as the case may be, that has been finally approved, no modification of the provisions of the development plan, or part thereof, as finally approved, shall be made except with the consent of the landowner. (4) Upon approval of a final plat, the developer shall record the plat in accordance with the provisions of section 513(a) and post financial security in accordance with section 509. (e) In the event that a development plan, or a section thereof, is given final approval and thereafter the landowner shall abandon the plan or the section thereof that has been finally approved, and shall so notify the approving body in writing; or, in the event the landowner shall fail to commence and carry out the traditional neighborhood development in accordance with the time provisions stated in section 508 after final approval has been granted, no development or further development shall take place on the property included in the development plan until after the said property is reclassified by enactment of an amendment to the municipal zoning ordinance in the manner prescribed for such amendments in Article VI. Section 714-A. Jurisdiction. District justices shall have initial jurisdiction over proceedings brought under section 712.2. Section 715-A. Enforcement Remedies. (a) (1) Any person, partnership or corporation, who or which has violated the traditional neighborhood development provisions of any ordinance enacted under this act or prior enabling laws shall, upon being found liable therefor in a civil enforcement proceeding commenced by a municipality, pay a judgment of not more than $500 plus all court costs, including reasonable attorney fees incurred by a municipality as a result thereof. No judgment shall commence or be imposed, levied or payable until the date of the determination of a violation by the district justice. (2) If the defendant neither pays nor timely appeals the judgment, the municipality may enforce the judgment pursuant to the appropriate rules of civil procedure. Each day that a violation continues shall constitute a separate violation, unless the district justice determining that there has been a violation further determines that there was a good faith basis for the person, partnership or corporation violating the ordinance to have believed that there was no such violation, in which event there shall be deemed to have been only one such violation until the fifth day following the date of the determination of a violation by the district justice, and thereafter each day that a violation continues shall constitute a separate violation. (3) All judgments, costs and reasonable attorney fees collected for the violation of traditional neighborhood development provisions shall be paid over to the municipality whose ordinance has been violated. (b) The court of common pleas, upon petition, may grant an order of stay, upon cause shown, tolling the per diem judgment pending a final adjudication of the violation and judgment. (c) Nothing contained in this section shall be construed or interpreted to grant to any person or entity other than the municipality the right to commence any action for enforcement pursuant to this section. Section 716-A. Compliance by Municipalities. Municipalities with traditional neighborhood development ordinances shall have five years from the effective date of this amendatory act to comply with this article. APPENDIX E EXCERPT FROM WISCONSIN’S 1999 ACT 9, NOW CODIFIED AT WISCONSIN STATUTES SECTION 66.1027 66.1027 Traditional neighborhood developments and conservation subdivisions. (1) Definitions. In this section: (a) "Conservation subdivision" means a housing development in a rural setting that is characterized by compact lots and common open space, and where the natural features of land are maintained to the greatest extent possible. (b) "Extension" has the meaning given in s. 36.05 (7). (c) Traditional neighborhood development" means a compact, mixed-use neighborhood where residential, commercial and civic buildings are within close proximity to each other. (2) Model Ordinances. (a) Not later than January 1, 2001, the extension, in consultation with any other University of Wisconsin System institution or with a landscape architect, as that term is used in s. 443.02 (5), or with independent planners or any other consultant with expertise in traditional neighborhood planning and development, shall develop a model ordinance for a traditional neighborhood development and an ordinance for a conservation subdivision. (b) The model ordinances developed under par. (a) shall be presented to the chief clerk of each house of the legislature, and shaft be referred immediately by the speaker of the assembly and the presiding officer of the senate to the appropriate standing committee in each house. The model ordinances shall be considered to have been approved by a standing committee if within 14 working days of the referral, the committee does not schedule a meeting for the purpose of reviewing the model ordinance. If the committee schedules a meeting for the purpose of reviewing the model ordinance, the ordinance may not be considered to have been approved unless the committee approves the model ordinance. (3) City And Village Requirements. (a) Not later than January 1, 2002, every city and village, with a population of at least 12,500 shall enact an ordinance that is similar to the model traditional neighborhood development ordinance that is developed under sub. (2) (a) if the ordinance is approved under sub. (2) (b), although the ordinance is not required to be mapped. (b) A city or village whose population reaches at least 12,500, after January 1, 2002, shall enact an ordinance that is similar to the model traditional neighborhood development ordinance that is developed under sub. (2) (a) if the ordinance is approved under sub. (2) (b) not later than the first day of the 12th month beginning after the city’s or village’s population reaches at least 12,500, although the ordinance is not required to be mapped. APPENDIX F Notes
Author and Copyright InformationCopyright 2001 by Authors Moderator/Panelist Robert J. Sitkowski, Esq., AICP Panelists Anna M. Breinich, AICP Brian W. Ohm, J.D., Associate Professor |
