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04/12/2004 - Packet R ON Completeness — cip am Review for Boards, Commissions and Committee Records CITY OF TIGARD Planned Unit Development Comn uttee Name of Board, Commission or Committee April 12,2004 Date of Meeting To the best of my knowledge these documents are a complete copy of the official record. C.L. Wiley Print Name �c Signature 2/19/20113 Date PD REVIEW COMMITTEE MEETING April 12, 2004 Tigard Town Hall 7:00-8:00 p.m. Agenda 1. Welcome and Introductions 7:00-7:10 2. PD Ordinance Overview 7:10-7:25 3. Perceptions/Expectations of PD's 7:25-7:45 4. What's Next? 7:45-7:55 5. Additional Agenda Items 7:55-8:00 i��i:ITl:�'C�IJCS"C�(1,`'II;C'i]C �i�t't'lL'11'C�tT7117111L'C PLANNED DEVELOPMENT REVIEW CONIlyI=E MEETING APRIL 12, 2004 DRAFT MEETING MINUTES 1. Introductions Staff Liaison, Morgan Tracy welcomed the group and opened the meeting at 7:00 p.m. Committee members introduced themselves and presented their backgrounds and reasons for wanting to be a part of the committee. 2. Planned Development Ordinance Overview Staff presented a powerpoint slide show outlining the current objectives of PD's and the governing policy that created them. One committee member noted that it would be helpful to have a flowchart of the land use review process. Other members noted their desire to have complete development codes and comprehensive plan documents. Staff indicated that they would provide these. 3. Perceptions/ Expectations of PD's The committee spent some time discussing various development projects such as Kraft Place, Ash Creek, Bretton Woods, Daffodil Hill, Blue Heron Place, and Summerlake. The committee asked staff for information pertaining to these developments with regard to their size, number of lots and relative density, the approval criteria that applied, and where they were located. Staff indicated that they would put together a list with this information and distribute to the committee. Two members noted a council member's suggestion of repealing the PD ordinance entirely. Staff noted that other sections of the code may need to be changed to address some "loose ends". Scott Sutton noted that architectural details are not so critical, but rather how the structures are laid out on the site, in relation to the roads that is more important. He noted that developers follow the path of least resistance, and most wouldn't go through a PD if there was an easier path to approval. The City and Developer have different objectives at the outset of a PD application, basically, amenities versus net profit. 4. Other Agenda Items. Alice Ellis Gaut noted that the Committee meetings were subject to the public meetings law, and inquired how that affected distribution of email or discussion between committee members outside of the meetings. Staff discussed this issue with the City Attorney who noted that since the committee will be making a recommendation to City Council, the public meetings law does apply. With regard to email, since staff is serving solely as a 1 liaison and is not formulating the recommendation, committee members may discuss matters with staff independently. Staff may pass along agenda items for future discussions to committee members, but can not directly forward email correspondence from other members. With regard to discussion between committee members, this may occur outside of a public meeting, so long as a quorum is not present, and individual discussions are not undertaken in a manner to create a quorum, or otherwise circumvent the public meeting requirement. Scott Sutton inquired whether it would be beneficial to invite some developers to "beta test" the committee's recommended changes before going to council. Charles Schwartz suggested that if developers opinions were to be solicited, broader community input should also be solicited. Bill McMonagle noted that it may be more helpful to have land use consultants analyze the changes since they are more familiar with code implementation. Staff reminded the committee that opportunities for greater public input would be available at future code adoption hearings before planning commission and city council. The committee concurred that a planning consultant seemed appropriate to find "loopholes' in the future proposed changes before they go to a broader public hearings process. 4.What's Next. Staff advised the committee to examine other development in and around Tigard and take pictures, if possible, of images of both good and bad elements of these subdivisions to share with the group. 5. Next meeting is Monday, May 3,from 7:00-9:00 pm in Red Rock Conference Room. Staff adjourned the meeting at 9:20 p.m. Meeting Attendees: Committee Members: Ron Gaut,John Frewing, David Walsh, Charles Schwartz, Scott Sutton, Alice Ellis Gaut,Sue Beilke, Bill McMonagle Staff: Morgan Tracy Distributed: 4/19/04 2 PLANNED DEVELOPMENT DISCUSSION Tigard Development Code Chapter 18 . 350 HISTORY *- Original code of 1983 * Reviewed in 1986, 1992-93, 1998 * Revised in 2002 (to remove density bonuses for constrained lands) t•e. R �e�. 4rinus�5 t/S. 1�'unste� PLANNED DEVELOPMENT IN GENERAL Promote flexibility to development standards * Purpose in Tigard Development Code (TDC) 1. To provide a means for creating planned environments through the application of flexible standards, i.e., zero-lot lines, narrower streets, and other innovative planning practices which will result in a superior living arrangement; 2. To facilitate the efficient use of land; 3. To promote an economic arrangement of land use, buildings, circulation systems, open space, and utilities; 4. To preserve to the greatest extent possible the existing landscape features and amenities through the use of planning procedures that can relate the type and design of a development to a particular site; and 5. To encourage development that recognizes the relationship between buildings, their use, open space, and access ways and thereby maximizes the opportunities for innovative and diversified living environments. Planned Development in General (Continued) • Flexible Standards to achieve Superior Living Arrangements 5, o� rofoe3 — Narrow streets A�&IpIWAk `� Lot dimensional requirements — Setbacks — Uses • Efficient Use of Land Minimum density requirements — Clustering Planned Development in General (Continued) Economic Arrangement of Land Uses — Flexibility to mix uses — Limited opportunity (lack of large vacant parcels) — Urban reserve w,,, -oraj ia, «'� f Preservation of Existing Features and Amenities — Impact of grading and improvements to meet minimum densities — Wetland and riparian corridors, �A Peddp4r'13 — Preserve open space Relationships — Buildings, Use, Open Space Z^k is t o� U S �5 )I st'g� a — Few opportunities )' — Density bonuse ��, �� 5&✓y -- ASSESSMENT: 0 The Planned Development ordinance is a collection of flexible decision making tools to enable development that is site specif`is and not mathematically prescribed . F9 �y 7-o 11 vi 171c4 As noted in the ASPO publication on planned development, "the PUD ordinance, which allows the greatest amount of flexibility, ideally will have a tendency to allow better design . But as problems in actually administering PUD's. . .are addressed, ordinances are amended and thus become less flexible, and thereby decreases the chance for better design. " Assessment: (continued) • Tigard adopted its planned development ordinance to enable flexibility in design and encourage innovative development of both infill and large parcels. • The ordinance remains relatively "loose" on a number of other standards to encourage developers to use the PD process, and relies on the planning commission to ensure that the more subjective standards are met by the overall project. f ag��nrt 0.� f v 04 -ivOLi' 0 of eof j d lu 14 r"Lk"�L Consistency with Metro requirements prevents the City from granting density reductions Assessment: (continued) 0 Restrictions for certain housing types in particular zones can be modified, but there could be instances where the housing types are better suited to the topography, configuration, or natural constraints on a site. Areas that could be improved include the designation or requirements for open space. 0 A number of development proposals have been hindered by the apparent contradiction between minimum density and the City's tree ordinance. Assessment: (continued) O� One arena that the City has been reluctant to enter (especially related to single family residential dwellings) is architectural review. mV Architectural controls could be implemented. A review process for architectural design is subjective and tends to lengthen the development process. 0P By granting density reductions, the City would be in non-compliance. O� One possibility may be to include private open space in the deductions from the gross site area in determining the net developable area . NEW QUESTIONS: Lot size averaging AI(]v(.{ I 4i✓�1i4 VLS10n 5' It,, go;/-V * Density transfer from constrained lands POLICY QUESTIONS * Discussion of changes needs to be viewed through discussion of policy * Policy is found in Comprehensive Plan 2 RELEVANT POLICIES Housing 0 6. 1 . 1 — The City shall provide an opportunity for a diversity of housing densities and residential types at various prices and rent levels. — Implementation Strategies ► Single family and attached or multiple family at 10 units to the net acre on buildable vacant land. ► The TDC, through the Planned Development process, shall establish a procedure to allow properties exhibiting physical constraint Pr Oljx� characteristics, e.g., steep slopes or floodplains, to develop with density k transfers allowable on the site. U , tr► The City shall encourage housing development to occur, to the greatest y� - extent possible, on designated buildable lands in areas where public o� dr facilities and services can be readily extended to those lands. 6p- � Relevant PolicieS (continued) Housing 6.2. 1 - The City shall develop clear and concise development regulations and standards to facilitate the streamlining of development proposals, and will eliminate unnecessary provisions which could increase housing costs without corresponding benefits. Relevant Policies (continued) Natural Features and Open Space 3 . 1 . 1 — The City shall not allow development in areas having the following development limitations except where it can be shown that established and proven engineering techniques related to a specific site plan will make the area suitable for the proposed development. (Note: this policy does not apply to land designated as significant wetlands on the floodplain and wetlands map) ► Areas meeting the definition of wetlands under Chapter 18.26 (18.120) of the Community Development Code; ► Areas having a severe soil erosion potential; ► Areas subject to slumping, earth slides or movement; ► Areas having slopes in excess of 25%; or ► Areas having severe weak foundation soils. Relevant Policies (continued) Natural Features and Open Space 3 . 1 . 1 — Continued — Implementation Strategies Areas having physical limitations (poor drainage, seasonal flooding, unstable ground) may be subject to policy 3.1.1 of the Comprehensive Plan Relevant Policies (continued) Natural Features and Open Space � 3.2.4 — The City shall prohibit development within areas designated as significant wetlands on the floodplain and wetlands map. No development shall occur on property adjacent to areas designated as significant wetlands on the floodplain and wetlands map within twenty-five (25) feet of the designated wetlands area. Development on property adjacent to significant wetlands shall be allowed under the planned development section of the code. Relevant Policies (continued) Natural Features and Open Space 3.4.2 — The City Shall : a. Protect fish and wildlife habitat along stream corridors by managing the riparian habitat and controlling erosion, and by requiring that areas of standing trees and natural vegetation along natural drainage courses and waterways be maintained to the maximum extent possible; b. Require that development proposals in designated timbered or tree areas be reviewed through the planned development process to minimize the number of trees removed; and c. Require cluster type development in areas having important wildlife habitat value as delineated on the "Fish and Wildlife Habitat Map" on file at the City. Relevant PolicieS (continued) Natural Features and Open Space 3 .4. 2 — Continued — Implementation Strategies The City shall encourage, through the Planned Development Process, the retention of large, varied habitat areas on private and public lands including inventoried plant and animal communities. Where there exist large or unique stands of trees or major vegetation areas within the planning area on undeveloped land, the City shall ensure that development proposals do not substantially alter the character of the vegetation area through the Planned Development Process and the "Tree Cutting" section of the Community Development Code. OTHER ISSUES Ballot Measur 56 a, mu,D — Requires,,notice to all properties impacted — Estimated cost $6,500+ Changes to Tigard Development Code will not go into affect in Urban Services Area tcv,� cdq�r, C o(,tt. Cfl un y1WAi fu p wL(' / v�✓� �ullC�� �i2 [�70 �¢ Takings ���, ✓W � w l�1 �Cu� Ct D I'ayp.✓✓ L Y k.c, I v�2S GS�� 5C414 �A�`U u!GS i�r Q n i„Jt -�.r/�el /►u,.2��i ,. Planned Development Code Review Comm. Membership Alternate Mid-term Appt 1st Full 2nd Full Sue Beilke Appt 3/23/04 11755 SW 114th Place Tigard,OR 97223 Res 503-639-3519 Bus 503-330-0220 e-mail sbedke@europa com Gretchen Buehner Appt 1/3/05 Planning Commisron Liaison 13249 SW 136th Place Tigard,OR 97223 Res 503-6841031 Alice Ellis-Gaut Appt 3/23/04 10947 SW Chateau Lane Tigard,OR 97224 Res 503-639-8930 e-mail aeg@csgpro com Ron Ellis-Gaut Appt 3/23/04 10947 SW Chateau Lane Tigard,OR 97224 Res 503-639-8930 Bus 503-804-7272 e-mail rcg@csgpro com John Frewing Appt 3/23/04 7110 SW Lola Lane Tigard,OR 97223 Res 503-245-5760 e-mail lfrewing@teleport com Bill McMonagle Appt 3/23/04 12555 SW Hall Boulevard Tigard,OR 97223 Res 503-617-4995 Bus 503-039-3453 x14 e-mail:bill@h-mc com Charles Schwarz Appt.3/23/04 14135 SW 93rd Avenue Tigard,OR 97224 Res 503-024-7826 Bus 503-731-8290 e-mail ccnm_schwarz@msn com David Walsh Appt 3/23/04 10236 SW Stuart Court Tigard,OR 97224 Res:503-620-4807 Bus 503-537-6368 e-mail-david walsh@spnewspnnt com Pager 503-938-4275 Committee Meets: Generally monthly,but may vary determined by activity level Staff Liason: James Richardson/Dick Bewersdorff Established: RESOLUTION NO.04-08 on 1/27/04 Terms: No designated term of service has been assigned 3/31/04 Planned Development Code Review Committee 1 Qmmittee Name RP_4,/je4jJ VOLUNTEER SIGN-IN SHEET Date Volunteer Name HOURS Comments ,q 15ta kkon �_ 2_7 5v& 13Gx rke. L t S Sv4hon Z �� �ft Abu-u- ht 6&vk 2 ?� !M Mata b-l<<S �(Cr2 �a�� ��✓t� Z.��j dm\susank\smarttr.doc I 4. x - S Y rF, Lmn Ear. kl LLL. a 8 sa OM MIA ell. � i 'F f � � }�.e i f - al n i,,. 1�a CR yi. Ys :: .� •-� .KJ St " r s This report was prepared by the American Society of Planning Officials as part of its Sponsored Research Program.The ASPO research program is an independent research activity supported by grants and contracts and devoted to advancing public agency planning practice. Individual research reports are not reviewed for approval by the Board of Directors or by the membership of the Society. Frank Beal, Assistant Director for Research(312) 3243400. Planning Advisory Service is a subscription research service of the American Society of Planning Officials. Reports are issued monthly; memos are issued irregularly. Frank S. So, Assistant Director for Advisory Services; Michael J. Meshenberg,Planning Advisory Service Director. Planning Advisory Service Reports are produced at ASPO. Ed McCahill, Publications Director; Paul O'Mara, Marjorie Adams, Adele Rothblatt, Robert Cassidy, Assistant Editors; Lindsay Kincaid, Maria Schneider, Robert Frausto, Production Staff. Copyright©1973 by American Society of Planning Officials. All rights reserved. No part of this may be reproduced or utilized in any form or by any means, electronic or mechanical, including photocopying, recording,or by any information storage and retrieval system,without permission in writing from the American Society of Planning Officials. American Society of Planning Officials, 1313 East Sixtieth Street, Chicago, IL 60637. Israel Stollman, Executive Director. Planned Unit Development Ordinances By Frank S. So, David R. Mosena, and Frank S. Bangs, Jr. i TABLE OF CONTENTS Chapter 1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 The Premise The Purpose Methodology Chapter 2. Where Does PUD Stand Today? . . . . . . . . . . . . . . . . . . . . . . . . . . . . Emerging Trends Attitudes Toward PUD Some Realities of PUD Chapter 3. Basic Ordinance Mechanics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Zoning Techniques Coordinating Regulatory Devices Purpose Clauses Definitions Permitted Uses Ownership Requirements Availability of Public Services Processing Fees Chapter 4. Site Plan Review Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Basic Principles Recommended Procedure Preapplication Conference Preliminary Development Plan Final Development Plan Building Spacing Requirements Amendments to the Final Development Plan Enforcement 1 Chapter 5. Substantive Design Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Density Parcel Size Open Space Environmental Design Traffic Circulation Private Streets Parking Standards PUD Perimeters Nonresidential Development Chapter 6. Legal Aspects of Drafting PUD Ordinances . . . . . . . . . . . . . . . . . . . . . . 45 PUD and Local Land Development Regulation Legal Problems in Administration Chapter 7. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 Appendix: The Land-Use Intensity Rating System . . . . . . . . . . . . . . . . . . . . . . . . 59 IBibliography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 i This study was assisted by the National Association of Home Builders which provided most of the funds to conduct it, helped identify builders to respond to questionnaires and interviews, and commented on draft reports. ASPO is thankful for NAHB's assistance. The writing of the report itself—in its development, analyses, and conclusions—is solely the work of ASPO's staff and does not necessarily reflect the views of its Board,members,or project sponsors. Cover by Sally Hughes, Chicago Photographs by Robert Frausto (pp. 8, 19, 35,43, 53) and The Urban Land Institute/National Association of Home Builders from "PUD: A Flexible Land-Use Concept" (pp. 7, 15, 23, 52) s Chapter 1. Introduction Planned Unit Development (PUD) is a distinct type of governments should or will renounce development controls. land development project which reflects a growing trend in As developments grow in size and in the resulting environ- the way in which the development industry converts vacant mental impact, regulation will probably increase. Rather land to urban uses. the point illustrates the central dilemma of regulating Before World War 11 the development industry was planned unit development: the PUD ordinance, which characterized by a fragmented approach. A land speculator allows the greatest amount of flexibility,ideally will have a purchased land from a farmer, then sold it to a land sub- tendency to allow better design. But as problems in actually divider who in turn sold single lots to individual purchasers administering PUDs as defined by developers, planners, who hired a home builder to construct a house.The typical lawyers, and public officials are addressed, ordinances are home builder probably built one or two dozen homes in a amended and thus become less flexible, and thereby have a year. Other builders specialized in constructing apartments, tendency to decrease the chance for better design. This commercial buildings, or industrial structures. seemingly paradoxical observation ought to be remembered The public regulatory system was composed of two basic throughout this report. tools: land subdivision regulations and zoning ordinances. context of the existing development process they The Premise reasonably well, since most development and regu- The PUD concept is a rational and sound alternative to took place-on a lot-by-lot basis. And, it should be the traditional, lot-by-lot residential development that has noted that regulation was "preset." It was possible to draft shaped the pattern of most of suburban America since regulations and proceed to lay out, say,a small subdivision World War 11. The concept made sense in the 1930s in of single-family houses_ From the governmental perspective, Radburn, New Jersey, and, if anything, makes even more regulation was the process of checking the subdivision plat sense now. We feel that designing residential developments for conformance to regulations. by means of a flexible but unitary site plan which integrates Following World War 11 the scale but not necessarily the housing types, circulation systems,and nonresidential facili- complexity of development grew markedly. To meet the ties, and which clusters dwelling units for the preservation demand for housing, the market responded with large-scale of open spaces and natural features is a significant and im- developments. The entire subdivision became the typical portant departure from traditional practice.We endorse the unit of development. The larger development firms like concept, and encourage the adoption of ordinances at the Levitt were building entire new towns with numerous local level to permit PUD as a standard alternative to con- neighborhoods, but the basic regulatory system, neverthe- ventional development schemes. less, remained largely unchanged. This strong endorsement, however, must be tempered it is not possible to pinpoint precisely when planned with a few facts of life. A good ordinance is not an absolute unit developments with a mixture of uses and dwelling guarantee of a well-designed PUD. It certainly improves the types started appearing. But by the early 1960s the number odds, but the human elements involved in the PUD process of features on PUD in such magazines as House and Home are too numerous to consider regulatory devices as com- began to appear with greater frequency. By the mid 1960s plete insurance. PUD ordinances are not as self-executing as entire publications on PUD were being supported or pub- conventional development regulations. A high degree of lished by the National Association of Home'Builders, the administrative discretion is left to planners,commissioners, Urban Land Institute, and the American Society of Plan- and public officials, and developers have considerably more ning Officials. flexibility under PUD procedures to exercise a variety of The concept of planned development has been around choices. for some time. In this country, perhaps the best early As a result of these increased human variables,the PUD known efforts were the work of Clarence Stein and Henry concept has been abused with the resulting product no im- and the building of a few, small New Deal new provement over the status quo. Unfortunately, the bad If one examines the literature of those efforts it is press resulting from such breakdowns in the PUD process noting that these developments were planned and has tended to tarnish the concept itself rather than its built with no land-use control regulations in effect. product. Some members of the general public equate the We point this out not because we think most local term with higher densities or apartment developments. 1 Even a few professional planners view PUD as a zoning PUD is becoming a household term among planners and loophole through which developers can avoid more strict developers. Yet there are many variations in the termi- conventional regulations or obtain higher zoning classifica- nology scattered throughout ordinances and the literature. tions with greater ease. Such feelings, regardless of their For example, such terms as "planned development," foundation, have created resistance to the PUD concept. "planned residential development," "planned community Even more serious,they have fostered misunderstandings in development," and "planned apartment development" are areas where experiences have not supported them. common. Most of them are variations on the same theme, We view such failures as a consequence of poor imple- but they often mix process with product and are not inter- mentation, not indictments against the PUD concept itself. changeable. A combination of developers who use competent designers This report uses the term "planned unit development" coupled with a good PUD ordinance properly administered throughout, meaning predominantly PUDs in which the by competent professional staff and informed commis- primary land use is residential. Accessory uses related to the sioners and public officials can frequently ensure the needs of the residents are appropriate, as well as limited development of superior residential environments. This commercial and office uses. Others have chosen the more report is an attempt to help that process come about. accurate term, "planned unit residential development" The Purpose (PURD), thereby avoiding confusion with "planned unit commercial development" or "planned unit industrial This report will assist planning agencies in local govern- development." ments to write PUD ordinances and revise existing ones. We define PUD as a land development project compre- The report starts with the given that the PUD concept is hensively planned as an entity via a unitary site plan which good and needs little defense. This is a technical document permits flexibility in building siting, mixtures of housing designed for use as a working manual and deals with two types and land uses, usable open spaces, and the preser- major elements of PUD regulation: the administrative pro- vation of significant natural features. cedures for processing development proposals and the sub- "planned," "unit," "flexibility," and "process" are key stantive design standards basic to quality development. words. The PUD process allows a much freer placement of In terms of PUD types the report will focus predomi- buildings on the land than conventional lot-by-lot systems. nantly on residential developments. Planned shopping The total parcel rather than a single lot is the unit of regula- centers and planned industrial districts are beyond the tion, and controls apply to entire developments. Densities scope of the report, but it will discuss related commercial may be calculated on a project basis, allowing the clustering land uses in predominantly residential projects. We do not propose a model PUD ordinance.Instead,we of buildings to create useful open spaces and preserve consider the fundamental elements of a good PUD ordi- natural site features. Increased flexibility allows project elements—housing, transportation systems, open spaces, nance by presenting and discussing a variety of ordinance nonresidential uses—to be interrelated with one another. provisions currently in use. While each of the topics dis- Traditionally tight controls over use districting are also cussed in this report should be considered in any PUD re- relaxed, permitting mixtures in dwelling unit types and'land view process, there is often no single best approach to a uses within the same project. particular regulatory problem. Detailed ordinance provi- In essence, the PUD process discards the traditional use sions must of necessity vary from place to place to reflect districting, self-executing development regulation for the local conditions and attitudes. A density provision adopted more open process permitting the application of sound in one city may not necessarily be appropriate for another. planning principles to the development of various size par- Also, many of the regulatory problems faced in the PUD cels ranging from small cluster developments to entire new process are not cut and dry issues.Often there are different communities. A site plan review process, guided by a com- costs associated with different alternatives, and some trade- bination of specific design standards and performance offs will have to be made. criteria, replaces the self-executing ordinance. Administra- Rejecting the notion of a model ordinance and therefore tive discretion and negotiation are increased as well as presenting a shopping list of ordinance provisions is based opportunities for development incentives. on one of the study's findings. Local communities vary considerably in terms of the sophistication (and especially Methodology the detail)of their zoning ordinances. In those communities The study staff, two planners and one attorney, which have dealt with complex projects, the PUD section of examined the ASPO files and ordinance library which in- the zoning ordinance can be quite general. However, in eluded review of all inquiries on PUD from planning those communities in which there have been few large agencies to determine any problems with PUD.Following a projects, officials will be dealing for the first time with review of the significant literature,two questionnaires were regulatory issues such as mixtures of land uses, private developed to address specific PUD issues. (One question- streets, and common open spaces, and other portions of naire went to planners, another to builders.) With these zoning ordinances and subdivision regulations will need questionnaires as a basic guide, a series of field interviews amendment simultaneously when adopting PUD provisions. were then held with planning directors and developers Some jurisdictions have chosen to include such provisions active in the PUD process. Interviews were held in six within the PUD sections. metropolitan areas: Washington, D.C., Philadelphia, Chi- Numerous ordinance provisions have been cited through- cago, Denver, San Francisco,and Los Angeles, and included out in order to stimulate the reader's thinking and en- both large and small city and county planning agencies, as courage him to consider the logic behind alternative ap- well as a wide range of builders and developers. proaches to regulatory issues. Hopefully,this approach will The questionnaires were revised in light of the field stimulate a more critical evaluation of the choices available, interviews and then mailed to 300 planning agency mem- and assist readers in making PUD ordinance decisions more bets of ASPO's Planning Advisory Service and 300 members appropriate to the needs of their specific jurisdictions. of the National Association of Home Builders. 2 Chapter 2. Where Does PUD Stand Today? Emerging Trends and a picture window is being traded for garden apart- There are a number of trends or factors influencing the ments, patio homes, and town houses with less private growing popularity of PUD. An important one is the sub- space to maintain and more usable common open space. stantial advantages it can afford builders and developers— Shared ownership is gaining popularity as homeowners' often higher densities, greater design flexibility, improved associations (HOAs) have generally proven a successful marketability. In response to these opportunities, the means of controlling and maintaining common properties homebuilding and land development industries have been and facilities. Many of the developers interviewed were promoting the concept heavily in recent years. motivated to enter the PUD business as much by the mar- Lenders and financial institutions have shown increas- ket preferences of consumers as by the other advantages of ingly positive attitudes toward PUD, primarily because it increased density and flexibility. Over 58 per cent of the has passed the tests of the market. Many of the better developers surveyed said that PUDs were easier to market projects we visited during our field research sold out very than conventional developments. fast. Appreciation in value has also been high, in some cases Housing demands have changed in other ways too. The as high as 10 per cent annually. Such examples have made age structure of the country's population has expanded at lenders much more favorable toward this form of develop- two important points. The post-World War 11 baby boom is rr 'tan they were 10 years ago.Thirty-eight per cent of now coming into the housing market, and many young t elopers responding said that lenders and financial couples and small families need lower-cost housing than the ins—ations favored PUD over conventional development, traditional single-family structure. Also, as the number of and another 48 per cent said they ranked about the same. elderly persons grows, more empty nesters are in the mar- The planning profession has also become increasingly ket. for smaller, less expensive dwelling units. Following receptive to the PUD concept. PUD ordinances were similar recent shifts of industry and jobs, the location of drafted and adopted at the initiative of local governments these demands has also shifted further into the urban in 72 per cent of the planning agencies surveyed. Most of fringe. Both of these changes have greatly improved the the professional planners surveyed considered PUD a prefer- suburban PUD market all across the country. able alternative to conventional residential development. While generally slower to accept new ideas, planning attitudes Toward PUD commissioners and local legislators nevertheless have The above trends may paint a glowing picture for PUD's warmed up to PUD considerably. Especially appealing is the increased control over the development process they have future, but there are still some serious pockets of resistance through site plan review. PUD ordinances are not as self- from certain sectors of the local community. The ASPO executing as conventional ones, and many local govern- survey asked both planners and developers to characterize ments have welcomed the increased discretionary powers the attitudes of several different groups toward PUD as and negotiation as methods for securing more amenities and they themselves perceived them. The results are shown in concessions from developers_ Table 1 on page 4. Changes in consumer demand and tastes over the last The respondents felt that professional planning staffs decade have been another important factor in the popu- and lay planning commissioners held predominantly favor- larity of PUD. The dominant preference for single-family able attitudes toward PUD which is probably attributable homes has shown signs of erosion;apartments have become to the fact that they are the most informed of the several more popular, and condominium sales are booming. The groups listed. Elected public officials showed somewhat less common open spaces and recreation facilities of PUDs have enthusiasm and more indifference; many of them do not also increased consumer appeal. Once a specialized market- understand the planning concepts behind PUD. Too often ing tool but now almost a requirement for survival, dc- their frames of reference are shaped by conventional veloned recreational amenities are becoming commonplace wisdoms and fears concerning density and apartments it c.Many include golf courses,swimming pools,riding rather than experience. And many of them have never st tennis courts, and community centers or club actually seen a PUD. Consumers were also rated of mixed houses. opinion, generally due to their unawareness. However,very Maintenance chores for individual homeowners are few of them were considered negative toward it. fewer_ The status symbol of a neatly manicured front lawn The general public, or more specifically suburban, 3 Favorable Indifferent Unfavorable Planners Developers Planners Developers Planners Developers (Per Cent) (Per Cent) (Per fent) (Per Cent) (Per Cent) (Per Cent) Professional Planners 98.9 92.2 0.0 7.8 1.1 0.0 Lay Planning Commission Members 89.2 62.7 9.6 29.5 1.2 7.8 Elected Public Officials 58.3 51.9 34.4 42.3 7.3 5.8 The Consumer Public(to whom the PUD 41.0 72.2 56.6 24.1 2.4 3.7 product is marketed) The General Public(typically property 22.1 19.2 43.2 30.8 34.7 50.0 owners residing adjacent to PUD sites) a S TABLE 1.Attitudes Toward PUD as Viewed by Planners and Developers single-family homeowners, are another story altogether. In spite of the prevailing conventional wisdom,PUDs do Over one-third of the planners and one-half of the de- not necessarily mean higher densities. Many ordinances per- velopers said this group was not in favor of PUD, a fact mit the clustering of dwelling units to allow open spaces, which was also borne out in our own field research.One of but do not allow any increases in overall density. the most consistent findings throughout the study was the If there are no truly typical PUD projects, there are, opposition of established suburban residents to PUDs. The however,some commonalities found in most of them.Open suburban resident sees PUDs creating higher densities and space is probably the single element most common to all multifamily housing. These are threats to an established life PUDs. While the size and quality of that open space varies style and neighborhood character. Sales prices and rents in considerably, most residential PUDs contain it in some PUDs are also major concerns of established homeowners, form or another. Developed recreational facilities, often since they largely determine the socioeconomic class likely designed in conjunction with common open space, are more to move in next door. frequently included. Developer's investments in these What has come to be defined as the"nongrowth"senti- "amenity packages" also vary widely as shown in Table 2, ment also accounts for some of this suburban resistance. which presents their average costs on a per dwelling unit Many people want no change at all. One planner stated, basis. Over half of the responding developers spent more i "There is considerable opposition to PUDs in this area, ir- than $500 per dwelling unit on recreational facilities.One- respective of excellence of design." Another stated, "Some fifth of them spent over$1,000 per unit. old mossbacks don't like it-but they don't like any type of TABLE 2.Average Cost Per Dwelling Unit of development that brings people within 100 feet of one "Amenity packages"in PUDs another." Developers are well aware of this resistance and often spend more time and effort educating local community Dollars Responses(Per Cent) groups and neighborhood clubs than planning commis- sioners and councilmen. A strategy used by one developer was to identify active community groups in the area of the $ 249 or less 11.6 1 250-499 25.6 II proposed project, and then hold extensive meetings with 500-999 39.5 them in an attempt to educate them to the PUD concept. 1,000-1,999 16.3 Developers found less resistance where experience with 2,000 or more 7.0 PUDs demonstrated that they did not reduce the value of adjacent properties. Also, in many cases, resistance had A mixture of dwelling unit types is also common. i decreased where growth was considered inevitable. Some Seventy per cent of the developers said their projects mixed suburbanites have opted for PUD rather than leaving the single-family detached units, townhouses, and apartments .i land to conventional development practices. in the same project. The ratios of various housing types to It is clear from all this that educating some groups would one another were scattered across a wide range,with single- likely increase favorable attitudes toward PUD.Most of the family units accounting for between 20 and 60 per cent of lay public, and many commissioners and public officials, the total dwelling units in one-third of the projects. simply do not understand it. However,the strong resistance Another third were between 80 and 100 per cent single of nongrowth advocates raises policy questions outside the family. realm of PUD. Suffice it to say that where development Mixtures of land uses are also becoming more common does occur, PUD is a sensible alternative and should be in PUDs, but not yet to the extent of mixed housing types. ? promoted through greater efforts to educate the doubtful. One-half of the developers built PUDs with mixed land There is no such thing as a typical PUD. The flexibility uses. Most were combinations of residential and commercial of the concept permits such a wide latitude in the final uses, with roughly half of the commercial facilities of the product that there is no real norm; this is one of the "neighborhood" variety, oriented to the convenience com- beauties of the concept. Some PUDs are very small residen- mercial needs of the PUD residents, and one-third major tial clusters, occasionally as small as two or three acres. commercial facilities serving a wider market external to the {i Others may be over 500 acres and include substantial PUD in which they were located. recreational and commercial facilities. Beyond the above, PUD projects vary widely on such 4 items as size, density, and the price of dwelling units_ Half professional site design consultants to prepare the overall of the developers responding were building PUDs averaging development plan while conventional development plans between 50 and 250 dwelling units each.Another 18.8 per are prepared by in-house surveyors and engineers." cent average from 250 to 500 units, and 12.5 per cent Preserving natural features in PUDs has had other im- contained over 500 units each. Acreages also varied a great portant effects. Building sites are oriented to take full deal, with 37 per cent of the developers' projects averaging advantage of natural features, increasing overall project between 6 and 15 acres, and 20 per cent between 50 and amenity. Flexibility in siting structures has reduced the 100 acres in size. Very few had developed parcels of more visual monotony common to many conventional neigh- than 100 acres. Dwelling unit sales prices ranged from a low borhoods. One planner stated that, "The PUD process has of near $15,000 to a few priced at over $100,000 each. resulted in bringing relief to the `cookie cutter' single- Nearly half of the dwellings sold for $25,000 to $35,000. family neighborhoods." More open space has also resulted, Projects which included rental units tended toward more and clustering has reduced the sizes of front and side yards, expensive rentals, with 66.7 per cent of the average aggregating the land into common open spaces more useful monthly rentals falling between $200 and $300 and for a variety of active and passive recreational activities. another 16.7 per cent between $300 and $400. PUD open spaces have also given many local governments Densities also covered a wide range. Just over 15 per much needed relief in open space acquisition, as well as in cent of the respondents had built PUDs with densities as future maintenance and operating costs when they are low as from one to two dwelling units per acre. Average borne by homeowners' associations. Some communities densities fell in the 5 to 15 dwelling units per acre range, have no active open space acquisition programs, and addi- with 58.9 per cent of the projects averaging 5 to 8 units per tions through PUD are therefore even more important. acre. These figures represent overall project densities;micro Land utilization has been more efficient in PUDs. Odd- densities within PUD t►rojects are usually higher. shaped parcels are incorporated into projects more effec- In summary, most of the developers responding built tively, and installation costs for streets and public utilities PUDs with mixtures of dwelling unit types,although a sub- are reduced. Seventy per cent of the planners responded stantial number contained only one type of dwelling unit that PUDs had actually reduced local municipal mainte- per project. Limited commercial facilities were common nance costs both through absolute reductions in the but do not yet appear to be the rule. Overall project amount of physical facilities, and also through institutional densities were moderate, usually from 5 to 15 dwelling changes such as private street systems and common open units per acre. Common open spaces were nearly standard, spaces maintained and operated by homeowners' associa- and developed recreational facilities or"amenity packages" tions. In several communities PUDs had improved tax appear on the rise. ratables. Also, dwelling unit sizes for smaller families common in many PUDs have decreased burdens on local Some Realities of PUD school systems below those of traditional single-family In theory, the PUD process clearly presents more oppor- neighborhoods. tunities for creative and high quality residential design. In The architectural quality of PUDs was the subject of practice, it has not always turned out that way. The PUD another question to both planners and developers. Eighty process is still very new to many planners and developers, per cent of the planners and 76 per cent of the developers and it may take several more years to iron out all the kinks. agreed that PUDs offered more opportunities for higher In order to get some idea about the PUD projects which quality architectural design than conventional develop- have been built to date, we asked planners: "Has the PUD ments. There has been more "freedom to attach, detach, process resulted in significantly better design of neighbor- and cluster" dwelling units and greater freedom in hoods in your community as compared to conventional "building and living space design." Respondents stated that neighborhood designs?" Two-thirds of them answered yes. it was easier to carry out architectural themes in PUDs by The departure from conventional ordinance require- relating buildings and groups of buildings to one another. ments such as setbacks, yard dimensions,and minimum lot PUD also offers more opportunities to relate interior build- sizes has resulted in design innovations often impossible ing spaces to exterior spaces, natural features,and vistas. before. The feelings of many were summed up by one Many respondents felt that simply creating opportunities respondent who stated, "PUDs so far have been better than for better architecture and design had self-fulfilling effects. conventional designs of the same density." Most often One stated, "Freedom from the standard zoning and sub- mentioned was the increased environmental sensitivity of division minimums seems to encourage developers to be development. Flexibility in site design has both allowed and more innovative in design. Also, most developers working encouraged developers to tailor their development plans to on PUDs will make the extra investment for good architec- the natural amenities of the land. Natural features such as tural design because of the potential returns on well- groves of trees, ground cover, bodies of water,ravines,and designed PUDs. They are catering to a market that is rock outcroppings have been successfully incorporated into looking for something more than the standard tract house." PUD site designs. Several others felt that greater public scrutiny through the Environmental design questions were major issues in the site plan review process was having a positive effect on approval of PUD projects for over 60 per cent of the architectural standards. One planner said, "The increased developers surveyed. Several of them stated that environ- participation of planning personnel and planning commis- mental issues were being given a much higher priority than sioners with the opportunity to negotiate for the com- ever before, and that these issues could only be dealt with munity results in generally better architecture." However, effectively through the PUD process. Many developers are many developers voiced strong feelings about planners and responding to increased environmental concerns by em- laymen tinkering with the design of their PUD projects. ploying more design skills in their planning processes. One There were proportionately fewer negative comments on planner stated: "In each case, developers have employed the quality of PUD projects. Most were expressions of dis- appointment that some PUD projects had not resulted in that PUD forced its practitioners to "plan" much more significantly better residential developments than conven- than ever before, and that was good. They did not approve tional practices. Some looked"just like standard apartment of dictating such items as parcel sizes and product types to developments."A few respondents had experienced specific developers, items which must realistically reflect the scale design problems. For example, some cited problems with of operation a particular developer is capable of and the reduced street standards which restricted emergency vehicle constraints of the local market. Several developers felt that access. One stated that emergency vehicles had problems this is the direction in which we are going anyway,and saw finding addresses in some PUDs with more complex site no harm in it as long as it is a process and not a product designs, and another mentioned that longer processing that is being pushed. On the other hand, the PUD Be- times were costing the public more money. veloper, in contrast to the conventional developer,felt that There seems to be a fairly strong consensus of opinion he should not be required to submit more data, plans,and that PUDs are, in fact, better than conventional develop- so one,which might act as a disincentive for building PUDs. ments. At least the PUD process provides the opportunity Unless and until PUD becomes a mandatory process, to be better. However, some people seem to expect more however, scattered PUDs will have to be integrated into the from the PUD process than it was designed to produce. For total urban fabric through some other device, such as care- example, a criticism frequently heard is that the PUD ful public agency review based on the comprehensive plan. process ignores the land outside its boundaries, the land Over half of the ordinances reviewed now require de- between various PUDs. But PUD is not the same as compre- velopers to relate their PUDs to the community's compre- hensive planning. It was only designed to deal with con- hensive plan, often through the use of a written statement tiguous units or parcels of land. True, suchma arcels b P may submitted along with other application materials. Most large enough to constitute new towns which would elevate planning staffs make their recommendations to the plan- the scope of PUD to its highest level. But in actual practice, ning commission based partially on the relationship of pro- the PUD process, especially in its residential form, cannot posed PUDs to the comprehensive plan. be expected to take over the function of comprehensive Not all communities have comprehensive plans nor the planning. It should be used as a tool for implementing staff time to keep them current. In these situations, the master plan policies on a discrete basis. Like any other new PUD process has been used as a device for reacting to development, it must still be coordinated with adjacent development proposals rather than planning. One-half of areas. the planners surveyed agreed with the following statement: Because of these limitations, some people feel that the "Some planners say that one of the reasons for PUD's planning advantages of PUD can only be achieved at a rela- popularity is that communities.themselves do not know tively large scale of development such as 100 acres or more. what they want developed on their vacant land, and that So we asked both planners and developers what they the PUD process forces developers to make specific pro- thought of a mandatory requirement that all new develop- posals to which the community can react." Reacting to ment above some minimum parcel size be developed under proposals is not planning and we don't condone it, but it is PUD provisions. Planners were split on the issue; 55 per a fact of life, especially in rapidly urbanizing areas with cent favored the idea. Several even responded that they large amounts of vacant, developable land.If"reactive plan- either had or were considering using this approach, re- ning" is all a community is capable of, then the PUD quiring all new development to go through a site plan process does afford greater public control by providing a review process. One county had designated areas within the review process through which to evaluate new development comprehensive plan in which PUD procedures are required proposals. One possibility is that more communities will be due to unique topography and other natural features. forced by state statute to have up-to-date plans if they want Another city required the PUD process for all apartment to continue exercising land-use control powers—and es- developments. (As this report was going to press the City of pecially if they want to have the wider range of discre- Chicago Department of Planning and Development has pro- tionary power that PUD provides. posed that the PUD sections of the zoning ordinance be Another important trend in the PUD process today is amended so as to require developments of some minimum the increasing degree of negotiation which takes place size—acres and number of dwelling units—to follow a PUD between the local government and the developer. Flex- review process.) ibility in ordinance design standards varies considerably, Some negative viewpoints were also expressed. Several but most ordinances leave a great deal more items open to planners stated that some developers did not have the negotiation. (Flexibility in design standards will be dis- necessary skills or finances to design PUDs and would there- cussed in more detail in Chapter 4.) And with zoning fore be excluded from the process. Others mentioned that changes and building permits contingent upon the approval the idea had merit, but that they did not have enough of site plans, the stage has been set for more bargaining i qualified staff to conduct the increased review workload. Several argued that there was still a genuine need for single- than ever before. g Sixty-three per cent of the planners and 75 per cent of family housing, stereotyping PUD as a particular product the developers agreed that the PUD process was essentially type, rather than a process just as appropriate for single- a negotiation process between the community and the de- family development as for multifamily. veloper. Asked approximately what per cent of the total Two-thirds of the developers opposed the idea of man- review process was negotiated and not governed by pre-set datory PUD above a certain parcel size. However, many of standards in the PUD ordinance, over half of the re- them seemed more opposed to the notion of PUD being spondents said that negotiation accounted for more than 50 mandatory rather than actually using PUD in large projects. per cent of the outcome of the final PUD product. Density They also had misgivings about the ability of public agency is the most commonly negotiated item. It is of prime im- staffs to conduct reviews. portance to a developer's cost and profit picture and,at the Thinking about the notion of a mandatory PUD ap- same time, is the local government's most valuable item for proach did evoke several other ideas. Several developers felt barter. Communities often trade higher densities for such 6 • i F i a V i r �q. is a development project comprehensively planned via a unitary site plan having building siting flexibility and a mixture of housing types. .ities as additional open spaces, increased landscaping, gaining choices they are making and the public interests and school site dedications. Street standards are another they must guard. Warnings about the possibilities for mis- important item and are sometimes negotiated. judgment,abuse,and corruption through increased adminis- From the point of view of the planners and developers trative discretion in the development process cannot be there is nothing inherently wrong with the increased level overstressed. of negotiations occurring in the PUD process. Both parties The above discussion reflects the feelings of many believe they have something to gain. Many planners stated planners and developers that negotiation is a fact of life. that their local governments welcomed the PUD process Yet, they and we have a feeling of discomfort and wish for partly because of the increased level of discretionary con- better guidelines for negotiating. Unfortunately,except for trol it afforded them through such negotiations. And most recommending strict procedural guidelines which we hope developers would rather sit down and reason out design can result in open discussions, few meaningful guidelines- specifics rather than comply with pre-set standards. about substantive design issues can be offered. Perhaps There are some dangers in negotiation, however. It is a none can ever be offered. The basic problem is that the human process which pits personalities against one another, legal rationale underlying police power is difficult to relate and the stronger party usually wins. Communities with in- to questions of urban design which is highly a matter of sufficient professional skills in PUD design may be taken subjective taste. (Compare, for example,what urban design advantage of by developers who know much more than and architectural criticism in the press and in design juries they do and can overwhelm them with information they are would be like if only questions of health and safety could not qualified to evaluate. Conversely, developers are some- be discussed.)As will be discussed below under legal aspects times taken advantage of by heavy-handed local officials of PUD, the issue of negotiation, per se, has not been who have density bonuses and site plan approvals on their addressed to any great extent. Perhaps this is because the side. Unreasonable demands are sometimes made of de- two parties to negotiations—local government and the velopers, but they tend to comply in order to receive developer—have not felt their interests to be hurt enough to project approval. Over 60 per cent of the developers sur- litigate. This, of course, begs the question of third party veyed stated that-they are occasionally required to provide interests: the public. How should it view its interests when some facility or meet some development criteria which are at public hearings the public's elected and appointed r lecifically required in the local ordinances. officials seem to be cozy partners with a developer? What ordinances,especially PUD ordinances,cannot cover took place at all those preappGcation conferences? Who ,)ossible item related to a particular development pro- agreed to what? posal. Much negotiation already occurs under conventional Clearly, professional planners and officials must ap- self-regulating ordinances. Planners and public officials proach negotiation with the utmost caution and humility. should, however, be aware of the implications of the bar- The"wheeling and dealing"can be heady stuff. 7 Professional planners, lay commissioners, and public increased costs of designing PUDs. One stated: "A much t officials have often been accused of having a less than higher degree and completeness of architectural and land- thorough understanding of the economics of the housing scape planning is mandatory in PUD.Processing time is two and land development markets. This point was repeatedly to three times longer. Every phase of the professional work stressed in interviews with developers during the field re- is far more complex and time consuming." search. Consequently, we included several questions on the Planners seemed aware of the basic economics of the "economics of PUD" in the survey. There was common PUD process in most cases. They generally agreed that agreement on many points, but also some differences of many offsetting costs were incurred in the PUD process, opinion. and lower-cost housing was not guaranteed.However, many One basic notion is that higher densities always mean of them disagreed with developers on the economics of higher profits. There is simply more money to be made if processing times. Lengthy public processing of PUD appli- more dwelling units can be built on a particular parcel of cations is viewed as a major problem by developers. They land. All other things being equal, this is true and happens argue that it slows them down and costs them money in in many PUDs. However, in many other PUDs profits are staff, overhead, and carrying charges. However, 65 per cent not higher. Three-fourths of the developers responded that of the planners responded that faster PUD application the economies of scale in PUD did result in cost savings processing would not significantly reduce developer's costs. over conventional development practices. But 46.2 per cent One of them stated: "The bulk of the developer's time is found PUD profits roughly equivalent with those of con- spent in his plan preparation,not city processing."Another ventional developments; 11.5 per cent found them less said: "Faster processing would be a benefit and a con- profitable. venience to the developer, but not a great cost reduction." Most- developers stated that cost savings do occur Obviously, the quicker revenues are generated,the lower through the PUD process from such things as reduced infra- the costs incurred. To the extent that processing lengthens structure costs (e.g., reduced lengths of streets and utility the time between the beginning of project design and the systems possible with flexible site designs and clustering), generation of revenues, it does cost developers money. But lower unit costs due to higher densities,and higher turnover how much or how significant this sum is in relation to their rates(meaning shorter marketing periods which reduce sales total design and planning costs was not determined. costs and carrying charges while increasing cash flows). Nevertheless, it is, and has been, our impression that Slightly less than half of the developers stated that these processing time for all development applications—not just savings enabled them to produce lower cost housing;57 per PUD—is ridiculously long in too many jurisdictions.While it cent of the planners responding also agreed. is true that developers may contribute to delay by not pro- But while such savings are common to PUDs, there are viding the right information at the right time, local govern- frequently offsetting costs which keep them from being merits are guilty of some bad practices.Too often,because passed on to the developers in the form of higher profits,or they are uncertain of the details and implications of pro- the consumers in the form of lower housing costs. One- posals, members of commissions and boards put off a deci- fourth of the developers stated that virtually all of the cost sion meeting after meeting. Clearly, the staffs serving these savings obtained from such economies of scale were plowed bodies have much more educating to do so they can carry back into their developments in the forms of increased out their duties with greater confidence and thus with more costs for interest on borrowed money,planning and design, dispatch. In addition, many hearing bodies meet too in- processing, and project amenities such as recreational facili- frequently, sometimes only once a month. In rapidly ties and increased landscaping. Many developers stressed the developing areas weekly meetings should be reasonable. Changes in consumer demand and tastes over the last decade have been an important factor in the popularity of planned unit developments. � x 2 2 w Chapter 3. Basic Ordinance Mechanics : Zoning Techniques which could be permitted, in the Planning Commission's Choosing an appropriate zoning technique for PUD will judgment, if the land were subdivided into lots conform- depend on a number of things, including existing state ing to the minimum lot size and density requirements of statutes and local ordinances, the organizational structure the zoning districts or districts in which the land is of local government, and, to some extent, the preferences situated. of local legislators. The ramifications of some of these Locating PUD in the Zoning Ordinance. The PUD factors will be discussed later in the report in the legal process we have focused on in this report usually encom- section. Beyond these fundamental limitations, the critical passes more than the simple density transfer described variables in choosing an appropriate regulatory technique above. Among the more obvious additional elements found are land use and development density. in PUD are: mixed uses, density bonuses, and relaxed t Cluster Option.. If the community contemplates no public improvement standards granted in return for better change of use or density permitted by the existing regula- design, more open space, and higher project amenity levels. tions, and seeks only to transfer densities within a project These objectives very often involve substantial departures th the relaxation of conventional lot and building from previous policy decisions as expressed by existing ntrols, the community may implement this policy zoning district regulations. Multiple-family and commercial c)y Tnply amending existing district regulations to permit uses may be proposed where the present zoning designation ;uch density transfer or "cluster subdivisions" as of right. is single family; and it is almost axiomatic that the pro- i In any district amended in this fashion, the developer has posed densities will be greater than existing zoning would the option of choosing either conventional or cluster de- permit. velopment; the latter requiring no special permission from The conventional legal rubric for local government func- :he local legislative body. In either case, however, project tions would label changes of such degree legislative in plans are subject to review and approval by the planning character, requiring action by the local legislative body. `ommission under the subdivision ordinance. The local Considering the reality of much suburban zoning,where the legislative body will have amended the subdivision regula- wait-and-see, low-density districting of vacant land evi- :ions to include standards and criteria governing cluster sub- dences little in the way of a public decision about future iivision review. The significant point is that the legislative use or density, we might quibble about the value of this )ody has established general policies regarding density legislative/administrative distinction regarding zoning ransfer—the zoning districts in which 'they are permitted changes, i.e., in the absence of any zoning policy, every tnd the criteria against which individual projects will be change is the policy. Nevertheless, we do believe that in- udged—and subsequently its role becomes passive, as the dividual PUD proposals raise sufficiently important -egulatory function assumes a primarily administrative development issues in most communities that action by the .haracter. legislative body is necessary. Therefore, the ordinance One ordinance reviewed in this study permitted density drafter will find it necessary to locate the basic elements of ransfer of this type ip all districts: PUD approval and review in the zoning ordinance with its direct concern with use and density questions. PUD-1, Density Transfer Developments may permit the There were so many varying approaches, so many transfer of density (dwelling units) from one portion of nuances of structure and technique among the ordinances the tract to another, and will permit the clustering of surveyed, that we found it impossible to draw any quantifi- dwelling units in one or more locations upon the tract. able conclusions about the ways in which respondents im- The uses permitted within the PUD-1 development shall plemented PUD in their zoning ordinances. Two basic be the same as those permitted in the zoning district in approaches, however, did emerge from this generally con- h it is located.The PUD-1 shall be considered a `.`use fusing picture. ;ht" in all districts and shall not require a zone PUD as a Separate Zoning District. In the first of these oe, but shall be subject to all other applicable pro- two approaches, used by over one-third of the respondents, visions of this ordinance. The application of a PUD-1 the community adds a new district to its ordinance, the development shall result in a permitted number of dwell- PUD zone. Unlike conventional zoning districts, this PUD ing units which shall in no case exceed the number district is not located on the zoning map, but would be 9 affixed to particular parcels only after application by the Approval of an individual PUD project requires planning developer and approval by a designated public body. In this commission and/or local governing body action. In almost :f respect the PUD district is akin to what is commonly re- 60 per cent of the ordinances reviewed which used tii. (erred to in zoning parlance as a"floating zone."Moreover, special use approach, the t aislative bodies were given findl ordinance language describing the PUD district does not set approval power for PUDs. This is probably due in part to down the rigid area and bulk restrictions characteristic of the fact that many state enabling acts do not confer the conventional zoning districts. instead it describes a pro- authority to grant special use permits on planning commis- ] cedure for a public review of the developer's plans. The sions. Planning commissions, despite unclear authority, principal identifying characteristic of this approach is that granted permits in many other cases,often with referrals to public approval of the PUD takes the form of an amend- the legislative body only on appeal_ Primarily because of ! ment of the zoning ordinance. other restrictive language in state enabling acts some ordi- Beyond this point,generalizations about the approach of nances assign the task of approving special uses, like vari- PUD as a separate zoning district are difficult to make. With ances, to the board of zoning appeals. This seems an in- respect to use and density considerations, there is much appropriate choice. The board of appeals is a quasi-judicial variation_ At one end of the spectrum, language describing body, making case-by-case decisions on the basis of a strict the PUD district is superimposed. If the developer desires hardship standard. It is difficult to accommodate the different uses or greater densities than permitted by exist- board's normal functions to the flexibility objectives of the ing zoning, he must simultaneously seek rezoning of the PUD process. underlying district. In another variation, language describ- ing the PUD district itself contains use and density para- Coordinating Regulatory Devices meters within which the developer and the approving Any planner who has worked with large complex de- agency negotiate. Or the PUD district regulations may be velopment projects soon realizes the basic silliness of our silent on the question, leaving it entirely up to the review traditional method of separating development controls so and approval process. that some appear in zoning ordinances and some in land Where the existing district regulations are not vacated by subdivision regulations. Ideally all communities should have the superimposed PUD district, the planning commission unified development ordinances.(See F.H. Bair, Jr.,Special may be able to approve the PUD designation, as well as Public Interest Districts: A Multipurpose Zoning Device, review and approve the developer's plans. But in most of Planning Advisory Service Report No. 287 lChicago: the ordinances surveyed which followed the separate dis- ASPO, 19731.) However,since the vast majority of jurisdic- 'i trict approach, the zone change to PUD required legislative tions still have separate ordinances, we believe that the action, even though such action usually followed at least zoning ordinance is the appropriate location for PUD regu- preliminary planning commission review of the application. lations. Three-fourths of the regulations surveyed were The essence of the PUD district approach is an amendment found there. However, PUDs which subdivide land into lots of the zoning ordinance based on an essentially administra- automatically become subject to two different regulatory tive function of site plan review. This is a logical choice, devices. Wherever this is likely to occur, the PUD applica- ' since under typical state enabling legislation the planning tion procedure should be made as simple and uncompli- commission already has the task of administering subdivi- rated as possible by coordinating the two regulations. Sub- J sion regulations, and the commission may have a profes- division and PUD review should be conducted simul- 1 sional staff to assist it in the more technical aspects of PUD taneously in one single review process by the planning com- 'i review, mission and may be achieved simply by including a state- The PUD "overlay zone" is one variant of the PUD dis- ment in the PUD ordinance to that effect. trict approach used by a few communities. Unlike the One ordinance includes a coordinating section which "floating zone," it is located on the community's zoning reads as follows: map when enacted by the legislative body. Uses and den Coordination with Subdivision Regulation Ordinance sities may be determined by the underlying zoning designa- tion, or the overlay provisions may alter them. The im— portant distinction, however, is that for the developer review under the subdivision control ordinance be ' whose land is affected by the overlay, PUD is no longer an carried out simultaneously with the review of a Planned optional development method; it is mandatory. This tech- Unit Development under this section of the zoning ordi p nique is usually applied to areas with special topographical Hance. features the development of which requires substantial vari- B. The development plans submitted under subsection ation from conventional lot area and bulk regulations,even _of this section must be submitted in a form which c though basic use and density restrictions remain valid. will satisfy the requirements of the subdivision control i' PUD as a Special or Conditional Use. The second of the ordinance for preliminary and final plats. two major approaches—again followed by approximately C. The requirements for both this section of the zoning one-third of the communities responding to our question- ordinance and those of the subdivision regulations shall C' mire—is to treat PUD as a special use,special exception,or apply to all Planned Unit Developments, and all actions conditional use (all three devices are treated as essentially of the City Council pertaining to Planned Unit Develop- the same thing for the purposes of this report). In this ments shall be based upon a recommendation by the approach, PUDs are permitted as special uses in designated Planning Commission. zoning districts by including PUD among other special uses listed in the individual district regulations. Thus, a de For greater clarity, some PUD ordinances are cross- veloper can consult the zoning ordinance and then deter- referenced to portions of the subdivision regulations mine on the zoning map where, subject to public approval, wherever they are applicable. Over half of the ordinances 1 PUDs may be located. we reviewed did this to varying extents. Some agencies have 10 i prepared regulatory "packets" or manuals containing the ultimate approval before expending complete design two regulations and explaining their interrelationships to monies while providing city officials with assurances that developers. This is especially helpful when large numbers of the project will retain the character envisioned at the out-of-town developers are working in a particular com- time of concurrence. munity. As stated above, whenever communities are starting Definitions from scratch, or overhauling existing systems, they should consider drafting a single, comprehensive land development A section of definitions near the be of a PUD ordinance, containing all regulatory devices in one central ordinance is also useful for improved clarity. Since most zoning ordinances contain definition sections anyway, only location. We asked planners if they considered this idea useful and 57 per cent disapproved.However, most of them terms unique to PUD need to be included. Definitions qualified this opinion by stating that they were too locked typically include terms such as nonresidential uses, home- into their existing routine to change it_ The advantages of owners' associations, common open space, private streets, I net project area, and newer dwelling types not previously clarity and convenience in a unified development ordinance defined in other sections of the ordinance, such as patio were considered too marginal for the level of confusion it 1 homes, town houses, and quadruplexes. Such terms are dis- would cause for those familiar with existing methods. cussed further in the various relevant portions of this Purpose Clauses report. Purpose clauses (or intent statements, as they are some- permitted Uses times called) help to explain the objectives of a PUD ordi- APUD ordinance should contain a section dealing with nance. They also provide a statement of policy which may serve as a useful guide to those administering the ordinance. permitted uses. In most ordinances, it is common to allow Such clauses generally address the common elements or the uses permitted in the original zoning district by right. characteristics of a good PUD such as design flexibility, the Accessory and additional uses may either be listed or per- mixture of housing opportunities, efficient circulation, and mitted only on approval of the review authority. Some the preservation of open space and natural features. They PUD ordinances specifically list all permissible uses,while a should be limited to statements of principles and objectives, few go to the opposite extreme of permitting any uses without substantive requirements of any kind.One purpose deemed appropriate by the review authority. Listing the clause included the following objectives: uses allowed by right with provisions for approving addi- tional uses based upon site plan review seems the most (1) To promote flexibility in design and permit planned sensible approach since it provides the developer with some diversification in the location of structures; guidance at the outset and also leaves room for the needed (2) To promote the efficient use of land to facilitate a flexibility. more economic arrangement of buildings, circulation Many PUD ordinances allow multifamily dwellings by systems, land use,and utilities; right but a few go further by specifying the particular types of dwelling units which may be mixed in a PUD. However, (3) To preserve to the greatest extent possible the exist this seems like an unnecessary control and should probably ing landscape features and amenities and to utilize such be left to the developer to decide what is marketable. features in a harmonious fashion; Besides, whatever uses are permitted,they will be subject to (4) To provide for more usable and suitably located the standards and criteria listed in the PUD ordinance and recreation facilities and other public and common facili- to the final approval of the review authority.One ordinance ties than would otherwise be provided under conven- states this in the following manner: tional land development procedures; Any use permitted in RA-3 District of this ordinance (5) To combine and coordinate architectural styles, shall be permitted in a PUD subject to the criteria building forms and building relationships within the established in Section _of this ordinance. No use shall planned unit developments;and be permitted except in conformity with a specific and (6) To insure a quality of construction commensurate precise Final Development Plan pursuant to the pro- with other developments within the city. cedural and regulatory provisions hereinafter set forth. A more concise statement covering very similar principles Nonresidential uses like convenience commercial are per- reads: mitted in a few PUD ordinances by right, usually to the "extent that they are to be designed or intended for the use The intent of the PUD regulations is to permit greater of the residents of the planned unit development." How- flexibility and,consequently, more creative and imagina- ever, 70 per cent of the ordinances reviewed allowed com- tive design for the development of residential areas than mercial and other nonresidential uses only upon approval. generally is possible under conventional zoning regula Wherever nonresidential uses are included in a pre- tions. It is further intended to promote more economical dominantly residential PUD, they should be subject to and efficient use of the land while providing a har- specific standards,as discussed in Chapter 5. monious variety of housing choices, a higher level of urban amenities,and preservation of natural scenic quali- Ownership Requirements ties of open spaces. Most PUD ordinances require the applicant to meet Some purpose clauses go further by stating procedural ownership qualifications which address one or both of the objectives, in addition to objectives for PUD products. For following questions: First, must the applicant be the owner example: of the land at the time of application,or is it sufficient that he acquire title before final approval? Second,will multiple . . .and to give the developer reasonable assurance of owners be permitted to apply? Frequently a prospective 11 PUD developer will acquire options to purchase land for his manner, form, character, location, degree, scale, or project, with actual transfer of ownership contingent on timing resulting in higher net public cost or earlier incur- preliminary public approval of the developer's plans. The sion of public cost than would development in a form public interest is sufficiently protected if the ordinance generally permitted in the area. Such districts shall be so requires that the developer demonstrate a substantial con- located with respect to schools, parks, playgrounds,and tractual interest in the land as a prerequisite for filing an other public facilities required as to have access in the application for PUD approval. For example, one ordinance same degree as would development in a form generally provides: permitted in the area. An application for approval of a PUD may be filed by a However, if developers will (a) provide private utilities, person having,an.interest in the property to be included facilities, or services approved by the public agencies in the planned unit. The PUD applications shall be filed which would normally provide such utilities,facilities,or in the name or names of the recorded owner or owners services as substituting on an equivalent basis,and assure of property included in the development. However, the their satisfactory continuing operation and maintenance applications may be filed by holder(s) of an equitable permanently or until equivalent public utilities,facilities, interest in such property. or services are available, or (b) make provision accept- Such a provision must be complemented by a further able to the county for off-setting any added net public requirement that the applicant evidence a full ownership cost or early commitment of public funds necessitated interest in the land—legal title or the execution of a binding by such development, the location of the PUD district sales agreement—before final approval of his plan. may be approved. In any computations of added net A related problem arises where several owners of adjoin- Public costs, the difference in anticipated public installa- ing property wish to make a joint application for PUD tion, operation, and maintenance costs, and the differ- approval. In this situation there is always the possibility ence in anticipated public revenue shall be given due j that one of the owners may become insolvent,or for other consideration, among other pertinent factors. Costs for reasons withdraw from the project. Assuming the other making such determinations, as may be required above, owners are unable to purchase that land,the project may be shall be paid by applicants. The determinations shall be left dangling. Because of this possibility and the difficulty made by the county or by experts acceptable to the of creating legally binding-agreements among the o"r rs county. affecting the future use of their land, the community Processing Fees should require that the project be in single ownership by At the time of formal application for a PUD (which may the time the final development plan is approved. include a zone change application) a filing fee is often re- quired. The purpose of such fees is to help defray costs of Availability of Public Services reviewing PUD proposals. Such fees have been upheld by `In addition to ownership requirements, ordinances in- the courts when they reasonably reflect the actual costs of creasingly include requirements on the availability of public review. They cannot, however, be used as revenue collec- services at development sites. PUD approvals are not tion devices. granted unless such facilities as water,sewer lines,and high- Methods of calculating such.application fees vary. The ways exist in sufficient quantity to service the proposed same fee that is required.for filing,a zoning amendment or new development, or unless the'developer is willing to in- subdivision application is used in many cases. Other stall them at his own expense. (Actually,the installation of agencies require the zoning amendment fee and an addi- such facilities is frequently,a key issue in negotiations.) A tional fee to cover substantive PUD review.However, most PUD ordinance including such a statement reads as follows: ordinances lump both fees into one, based on a variety of Relation to Major Transportation Facilities—PUD dis- assessment techniques. Over 75 per cent of the respondents tricts shall be so located with respect to major streets required single flat filing fees ranging from $50 to $500 to and highways or other transportation facilities as to pro- be paid by one and all,regardless of the size of the develop- vide direct access to such districts without creating ment proposed.Others used sliding scales above a minimum traffic along minor streets in residential neighborhoods base amount, varying according to the number of acres to outside such districts. dwelling units included in the.project.This latter method is more equitable and distributes the costs of review more Relation to Utilities, Public Facilities—PUD districts fairly among applicants. Planners should be careful when shall be so located in relation to sanitary sewers, water making the distinction between acres and dwelling unitsas lines, storm and surface drainage systems, and other bases for sliding scales since they will often produce quite utilities systems and installations that neither extension different results depending on the intensity of develop nor enlargement of such systems will be required in ment. ! 12 is I' `f I; I.y Ca a Chapter 4. site Plan Review Procedures a I Basic Principles Efficient PUD review is therefore in the interest of all Fundamental to the PUD process is site plan review. It is participants. However, that efficiency must never take the major tool used to implement the objectives of PUD precedence over the adequacy of review; there must be a and may also be required to substantiate the zone change balance between the two objectives. Review procedures E associated with PUD approval,as well as for applicable pro- must be sufficient to fully evaluate subjective design ele- visions of the subdivision ordinance. All PUD ordinances ments of PUD applications without creating unnecessary should contain procedural guidelines which spell out the delays in administrative red tape. various steps in the review process.A number of basic prin- The ASPO survey questioned both planning agencies and ciples should be observed when designing such guidelines: developers about the length of time a PUD application Balanced Representation. There are three basic groups of spends in review. Table 3 on page 14 presents co'inparl- actors in the PUD process: the developer submitting the sons of processing time between PUDs and conventibiW I application for a PUD project and his clients; the public development as estimated by planners and develdptrs. review authority usually represented by the professional It is remarkable that only one out of three planneis thinks planning staff, the planning commission, legislative bodies, PUDs are processed slower; while two out of three de- her agencies and departments of local government; velopers think so.What is significant about this is that some l general public—those people who reside in the area developers might avoid using the PUD process—an unfor- ot ..ie proposed new development, consumers in the tunate event in our opinion. housing market, and other interested citizens. Care must be Both groups were also asked to provide rough estimates taken to assure that each of these groups receives a fair of average processing time for PUD applications.In Table 4, opportunity to participate in the review process without the same pattern of differences in perception is evident. j abusing the interests of the others. For example, the Although these figures are only rough estimates, they indi- process of the preapplication conference should not be a tate that the typical PUD project takes somewhere in the vehicle to hide actions from the public.On the other hand, neighborhood of 3 to 9 months to complete processing.Of one of the most sensitive portions of the review process is course, this average will vary according to many factors, the public hearing, especially when the proposed develop- including the developer's level of preparedness, the effi- j ment is controversial. While the public must be given fair ciency of the public review process, the community reac- opportunity to participate in the review process, this tion to the plan, the size and complexity of the project,and process must not be allowed to get bogged down through the available manpower to conduct review. excessive public hearings at different stages of the process. There are some valid reasons for a longer processing Developers should be required to present comprehensive time: more regulations, more attention to detail, more substantive project information to the public at one major parties involved, vague substantive requirements, and, the hearing (with continuances if necessary). But a multiple- concept itself is less well understood by all parties in- step review process need not involve public hearings at each volved. Also, if PUD involves a zone change and increased stage, unless the concept of the proposal has changed sub- densities, this may require some policy changes in local stantially during review. government, as well as arouse community resistance to Effieiency. Another key concept in designing a PUD re- development, especially if PUD means apartments near or view procedure is efficiency. Detailed review of complex adjacent to existing single-family development. Since PUDs PUD applications takes time: time of planning staffs;time almost inevitably require more processing time than con- of commissioners in public hearings; time for legislative ventional developments, it is absolutely essential to stream- ;actions; time of interested citizens;and time of developers line review procedures. in design work, presentations, redesign, and so on. Time IOne suggestion uncovered during the study was to pro- costs money. mote PUD as a development alternative by speeding up the front end costs incurred by developers are high,and processing time. This could be done by giving PUD applica- I iay be passed on to the consumer in the form of tions a higher priority on the review docket. The assump- higner housing costs. Staff review time costs a public plan- tion is that PUD is a sound,if not preferable,alternative to ning agency money, as well as using resources which could conventional tot-by-lot development, and should therefore be allocated in alternative ways. be encouraged through greater efficiency of administration. 13 TABLE 3. Estimated Comparisons in Processing Time which require no zoning changes could easily be handled in Between PUD and Conventional Development this manner. But where policy questions arise, appeals or call-up procedures may be used to initiate higher level reviews_ Planners Per Cent Developers Par Cent Since the planning commission is traditionally author- Of Responses Of Responses ized to review the subdivision plats which often accompany PUD applications and to conduct rezoning hearings as well, PUDs are processed 2.2 6.8 it is logical for them to conduct the major substantive. significantly faster review and hold a public hearing on the PUD application. About the same 64.7 24.4 The planning commission is the official body which should PUDs are processed 33.1 68.8 conduct substantive design review of all PUD applications, significantly slower with the assistance of the planning staff and skilled design Total Responses 100.0 100.0 consultants. This point is purposely made several times in this report. A lay body must have the professional assis- tance of a design specialist in reviewing a PUD.Advice from TABLE 4. Estimated Processing Time for PUD Applications a generalist planner is not enough. Our field work revealed that developers who spend thousands of dollars on archi- tects and landscape architects become furious when laymen Planners Per Cent Developers Per Cent or non-design professionals begin to"tinker" and"play'at Of Responses Of Responses being a"designer for a day." The role of the legislative body is to establish policy and Less than 3 months 23.4 12.4 conduct legislative acts. This includes zone changes related 3-5 months 49.4 22.2 to PUD, ordinances and amendments, accepting public 6-8 months 12.4 22.2 9-11 months 8.6 8.8 dedications and final plan documents. While they must 12 months or more 6.2 33.4 often approve the actions of the planning commission,legis- lative bodies should not get bogged down in substantive Total Responses 100.0 100.0 review of individual projects. Where there are many PUD No ordinances or agencies surveyed in this study took this applications, they will not have the time, but in many approach. On the contrary, some agencies appear to have smaller communities there will be temptations for legisla- taken the opposite tack by making procedural requirements tive bodies to conduct substantive review. It should be so complex that only the most determined developer would avoided_ attempt to go the PUD route in developing his land. Ordinance Clarity. Ordinances are typically not very Roles in the Review Process. Authors of PUD ordinances readable documents, and some of their authors may not must make some decisions about the roles that different want them to be. However, after reviewing over 100 separ- ate PUD ordinances in the course of this study,we strongly actors will play in the review process.The parties involved include the public agency planning staff, encourage ordinances which clearly spell out review pro- from other professionals cedures in a clear, step-by-step manner_ This means pre- from related departments or agencies—engineering, attor- senting procedural steps and submission requirements in ney s office, public works, police and fire, traffic control, and parks and recreation; the planning commission or outline form. Often it is helpful, especially in more com- plicated procedural processes, to provide developers with board, including zoning boards, and subdivision review procedural guidelines and diagrams, indicating the steps committees; and the local legislative body—city council, they must go through and the materials and presentations board of supervisors. Each of these groups has a definite necessary at each step of the way. Some communities even role to play, but there is not widespread agreement on just publish procedural manuals explaining development how these roles should be defined. For example, some PUD policies. ordinances involve legislative bodies in detailed substantive review, not leaving legislators to merely decide policies and pass laws which is their intended function. Recommended Procedure Local circumstances will have a major effect on how The ASPO study uncovered a wide range of procedural various roles will evolve in the PUD process but some alternatives in PUD ordinances. They ranged along a com- guiding principles should be stated nevertheless.The profes- plexity continuum from a one-step process in which the sional planning staff should be involved in the substantive planning director had approval powers (with the planning review of all proposals from their inception,in assisting the commission and city council only involved on appeals),to a developer to understand substantive ordinance require- four-step process involving the planning staff, the planning ments and policies, and in providing technical review assis- commission, the zoning board, and the legislative body, tance to the planning commission.Where professional plan- with public hearings at almost every step of the way. ning staffs do not exist,outside expertise must be obtained Obviously, review procedures will vary from one com- to provide technical consultation and evaluation. In some munity to another according to such things as existing ordi- cases, the role of the professional staff has been carried a nances with which they must be integrated and state step further. Several of the ordinances reviewed vest limited enabling legislation. The zoning mechanisms used for Approval authority with the planning director for some PUDs—floating zone, preestablished districts, special use types of projects. Authority has been vested in professional permits—will also determine the form of the review process. staff primarily when major policy decisions were not in- In smaller communities, it seems likely that the legislative volved. This approach presents no problem where adminis- body, and some key city officials such as the mayor or city trative guidelines and policies need little interpretation. For manager, will want to play a more detailed role in the re- example, cluster developments and density transfer systems view process- Larger cities under heavy development pres- 14 i II a i Y - a. r. Th-- planned unit development in Connecticut features a trail and path system connecting individual condominium units and cluster groupings. iay experience heavier review loads and be forced to Those ordinances which did grant the zone change based u, Date review functions downward as much as possible. upon the findings of the outline development plan actually {{ No one model can possibly fit all such circumstances. How- were in danger of taking this legislative action too early in ever, this report recommends a single basic model to serve the review process. It was felt that some ordinances did not f{ as the fundamental core of most of procedural situations. require sufficient information about the proposed PUD to A report by Daniel Mandelker, Controlling Planned Resi- make a sound decision at this stage in the review process. dential Development, published by ASPO in 1966,and now Requiring further submission materials in this step, out of print, presented a four-step review process which however, would make it too similar to the preliminary plan included: (1) a preapplication conference; (2) an outline requirements to merit its necessity. development plan stage to be conducted at the developer's This study, therefore, recommends a three-step review option; (3) a preliminary development plan stage, and(4)a process: (1) a preapplication conference; (2) a preliminary final development plan stage. This model has been adopted development plan;and(3)a final development plan. by a number of planning agencies, and several important We suggest a more formalized detailed preapplication points have been learned from its application.The primary conference designed to inform the developer of the local one regards the point at which an official zoning change is government's regulations and policies concerning develop- granted. Mandelker recommended that the zoning change ment alternatives and to inform the local government of the follow the approval of the outline development plan. developer's intentions, enough to be able to give him some However, many local governments are highly protective of informal, nonbinding feedback on the acceptability of his their zone change powers, preferring to grant it later in the ideas. The second step is a preliminary development plan review process, often not until after approval of the final stage requiring enough information from the developer to development plan. This deviation from Mandelker's original permit legislative action on any zoning changes necessary. model negates the necessity for step two since its purpose The final development plan stage requires further, more was to provide the local government with just enough detailed information from the developer, and 'formal information about the proposed development to take legis- acceptance of dedicated properties or streets will be per- lative action on the zoning request for the parcel.When this formed at this stage. While this process will not meet the approach is taken, the only remaining function of step two needs of all local governments involved in PUD,we consider is to give the developer some formal feedback on his pro- it to be sound in both principle and substantive procedure, `n some ordinances, such feedback takes the form of and it should be a useful model for the majority of ive approval, so noted on the zoning map. However, communities. teiatative approval is not legally binding and merely gives Preapplication Conference. The preapplication confer- the developer the green light for investing further in his ence in PUD has not traditionally been a formalized, plans. required step. It has generally consisted of an optional 15 I meeting between the developer and the planning staff in Fire Chief, or their authorized representatives, and any which they each got a sense of each other's intentions.We other department representative as requested by the believe that communities should seriously consider making Chairman. Before filing any application for a Planned the preapplication conference a mandatory step in the Unit Development, the prospective applicant shall review process; few developers would commit any substan- submit to the Planning Coordinating Committee prelim- tial resources to a PUD plan until meeting with local -inary plans and sketches and basic site information for authorities anyway. The meeting is primarily an informa- consideration and advice as to the relation of the pro- tion exchange which gives the developer an opportunity to posal to general developmental objectives to be attained sit down with the planning staff (and possibly other local in the area and as to the policies of the Commission and officials from related departments and agencies)and discuss Council with reference thereto. his range of options concerning the development of a particular piece of property. The developer not only Another ordinance provision requires that the preapplica- tion the local government of his development concept tion conference involve the planning commission as well. but he gets some feedback on their feelings about land use, There should be no particular requirements for submis density, and other basic policy issues. cion of materials and plans by a developer at a preappli- The planning staff gets an opportunity to familiarize the cation conference. However, the more information—sketch developer with the local PUD process, explaining what plans, land uses, site information, adjacent land uses, pro- requirements he has to meet, what issues he should consider posed density—the developer has, the more feedback he in his planning, and an opinion of how the review authority may get from the conference. In addition, the more formalized the nature of the information the community may react to his proposal. It must be made clear that state- has available at such a conference, the further both parties menu made in a preapplication conference are not legally can proceed at this stage. It is helpful for local govern,ments binding commitments but are merely informed reactions to to prepare printed procedural guidelines including:ancheck- development proposals which should guide developers in list of submission requirements for various stages,-of the preparing preliminary plans. review process.Ordinance provisions and subdivision regula- up the ensuing review process. The planning agency would A standardized preapplication conference should speed tions should be explained together and cross referenced at gain knowledge about what the developers want to do and this step of the process. The developer should be informed the developer would gain an understanding of what will be of all the necessary requirements he must meet; he should required of him to develop a parcel under the PUD provi- be given forms and application materials,guidelines, check- sions. A key factor in mutual understanding and speed of lists, and, if necessary, copies of zoning ordinance and review will be the extent to which both developer and subdivision regulations pertaining to his particular proposal. community have had previous experience with PUD. The greater the level of common understanding between Below is an example of an ordinance provision regarding the developer and the local government that can be the preapplication conference: achieved at the preapplication conference stage, the smoother the remaining steps of the review process will be. To obtain information, each applicant shall confer with A single, formalized conference as recommended here the director of planning and interested department heads will not be the only contact between the developer and the in connection with the preparation of the planned unit community prior to the submission of a formal PUD appli- development application. It shall be the responsibility of cation. It is likely that a developer may meet with planning the planning director to contact and invite these depart- staff several times during the course of his early project ment heads to a joint meeting. The general outlines of planning. However, regardless of the extent to which such the proposal, evidenced schematically by sketch plans, informal communications occur, a systematized preapplica- are to be considered before submission of the planned tion conference should be required as the first step in the unit development application. Thereafter the director of site plan review process. planning shall furnish the applicant with his written Preliminary Development Plan. The preliminary develop- comments regarding such conference, including appro- ment plan stage is the most critical step in this three-step priate recommendations to inform and assist the appli- review process. It is the point at which major substantive cant prior to his preparing the components of the review of the proposed PUD takes place, and recommenda- planned unit development application. tions are made on any necessary zoning changes, where The preapplication conference can be a more efficient applicable. Finally, it is the lay citizen's only chance for a major response through a public hearing. coordinating device, allowing other governmental depart- f menu .and agencies to be included in the preapplication This step is initiated by the developer through the submission of a formal application for a PUD (which will conference. Over 90 per cent of the agencies surveyed also include an application for a zone change when rele- stated that they routinely involved other governmental want). If subdivision regulations are involved, preliminary 4 departments in the preapplication conference. Some plan- subdivision plans should also be reviewed at this-stage.This ning agencies form a preapplication conference team which can generally be done simultaneously with other reviews of routinely conducts this function. Such teams often include several members of the planning staff,especially those with the same project, since it is usually the planning commis- cion that reviews them both. Where zoning changes are not site design expertise, and others from related departments such as engineering, -ablic works, traffic, police and fire, needed, such as in cases of conditional use permits,this step and parks and recreation. An ordinance provision following is still important as it gives the developer a formal reaction such a procedure appears below: from the review authority, without investing great sums in the final development plan process. There is hereby created a Planning Coordinating Com- Formal PUD application should be made to the planning mittee composed of the Planning Director (Chairman), commission or similar review body through the professional Director of Public Works, Director of Building&Safety, planning staff_ Staff members should review the proposed 16 PUD in detail and convey their findings and recommends- (b) A statement of planning objectives to be achieved tions in writing to the planning commission prior to the by the PUD through the particular approach proposed scheduled public hearing. Where there is no professional by the applicant. This statement should include a I planning staff, consultants should be retained to assist in description of the character of the proposed develop- Auating the application. (In some areas county or ment and the rationale behind the assumptions and opolitan planning agencies can provide such technical choices made by the applicant. (This is a very important stance.) Ordinances should place time limits for profes- requirement. It forces the developer to "think out his sional staff review and should also specify the minimum intentions." Such a requirement is an attempt to place and maximum number of days that may elapse between the the burden of considering all feasible design alternatives application date and the date on which the application shall on the shoulders of the developer—to force him to plan.) be placed on the planning commission's agenda for a public hearing. The hearing on the proposed PUD should be (c) A development schedule indicating the approximate date when construction of the PUD or stages of the PUD announced in accordance with notification and announce can be expected to begin and be completed. ment procedures in the zoning ordinance and as required by state law. (d) A statement of the applicant's intentions with Time limits are commonly placed on the review author- regard to the future selling or leasing of all or portions of ities requiring that proposals be reviewed and actions taken the PUD,such as land areas,dwelling units,etc. with a specified time—usually between 30 and 90 days. Failure to comply results in automatic approval of the (e) Quantitative data for the following: total number and type of dwelling units; parcel size; proposed lot proposed development.Ordinances should allow for contin- coverage of buildings and structures;approximate gross uation of public hearings since the size of a particular project or the local review load may be so high that a and net residential densities;total amount of open space (including a separate figure for usable open space);total particular proposal cannot be sufficiently dealt with in one amount of nonresidential construction (including a hearing. Time limits shduld also be placed on such review separate figure for commercial or institutional facilities); continuations. However, at this stage, review should not involve detailed trivial matters. economic feasibility studies or market analysis where Many PUDs will be subject to two regulatory devices: necessary; and other studies as required by the review }' the PUD provisions of the zoning ordinance and the authority. I conventional subdivision regulations. Since it is a traditional (2) Site Plan and Supporting Maps. A site plan and any function of the planning commission to review subdivision maps necessary to show the major details of the applications, PUD review should be conducted subject to proposed PUD must contain the following minimum the provisions of both regulations concurrently.In an effort larify PUD requirements, the two regulations should be information: ally cross referenced wherever necessary. Roughly 45 (a) The existing site conditions including contours at_ cent of the ordinances reviewed in this study made foot intervals (depending on local topographic condi- some explicit attempt to interrelate the two regulatory tions), water course, flood plains, unique natural fea- E devices. A combined development ordinance once again tures, and forest cover. (Some ordinances require more E makes great sense. detail in this section such as the inclusion of isolated One of the most important elements of the preliminary trees of a given number of inches or more in diameter.) development plan stage is the list of documents, site plans, (b) Proposed lot lines and plot designs. maps, etc., which the developer must submit in support of his PUD application. These materials form the basis of (c) The location and floor area size of all existing and information upon which the review authority must make a proposed buildings, structures, and other improvements decision. Due to the high cost of preparing such materials including maximum heights, types of dwelling units, I and doing the preliminary planning behind them, ordi density per type,and nonresidential structures, including nances should require only those items which the review commercial facilities. (Some ordinances require prelimi- authority feels are necessary to make a commitment or nary evaluations and/or architectural renderings of typi grant a zoning change. We found that no two ordinances cal structures and improvements. Such drawings should agree on the exact contents of a list of submission be sufficient to relay the basic architectural intent of the requirements; however, there are some basic ingredients proposed improvements, but should not be encumbered which are essential. Submission requirements may be with .final detail at this stage. (Our field research divided into two categories: (1) written statements and indicated that developers are increasingly including such documents; and (2) site plans, drawings, maps, and information as a matter of course, whether required to sketches. Whether or not they are divided into these two or not.) groups in the ordinance is essentially a matter of clarity and (d) The location and size in acres or square feet of all organization. The following items should be considered areas to be conveyed, dedicated, or reserved as common basic: open spaces, public parks, recreational areas, school sites,and similar public and semipublic uses. (1) Written Documents .(e) The existing and proposed circulation system of (a) A legal description of the total site proposed for arterial, collector, and local streets including off-street levelopment, including a statement of present and parking areas, service areas, loading areas, and major proposed ownership and present and proposed zoning. points of access to public rights-of-way(including major (Some ordinances also require that the names and points of ingress and egress to the development). addresses of all owners of adjacent property be submit- Notations of proposed ownership—public or private— ted as well.) should be included where appropriate. (Detailed engi- 17 neering drawings of cross sections and street standards considered formal public hearings as in the planning should be handled in the final development plan stage.) commission. The principle that administrative bodies (f) The ,existing and proposed pedestrian circulation should conduct public hearings rather than legislative system, including its interrelationships with the vehicular bodies should be adhered to (in spite of the fact that many circulation system, indicating proposed treatments of do not). points of conflict. Approval of the preliminary development plan should result in the adoption of an ordinance changing the (g) The existing and proposed utility systems including necessary zoning. However, preliminary plans approved sanitary sewers, storm sewers, and water, electric, gas, subject to certain conditions present a problem. Most and telephone lines. legislative bodies prefer not to grant a zoning change in (h) A general landscape plan indicating the treatment of such situations. Some of them defer the zoning change until materials used for private and common open spaces. after final approval. For example. (The landscape plan should be in general schematic form If the preliminary development plan is approved subject at this stage. Some ordinances require a grading plan as P P PP ) well.) to modifications, the City Commission shall not amend the zoning map and no building permits may be issued (i) Enough information on land areas adjacent to the on land within the Planned Unit Development until the proposed PUD to indicate the relationships between the final development plans for the total project area have proposed development and existing and proposed adja- been approved by the Planning Commission. cent areas, including land uses, zoning classifications, Another approach is to require the applicant to agree in densities, circulation systems, public facilities, and unique natural features of the landscape. writing to the conditions specified by the legislative body as conditional to the zone change before the actual change is (j) The proposed treatment of the perimeter of the made. PUD, including materials and techniques used such as screens, fences, and walls. If the preliminary development plan is approved with modifications, the Official Zoning Map shall not be (k) Any additional information as required by the amended until the applicant has filed with the County review authority necessary to evaluate the character and Board written consent to the Preliminary Development impact of the proposed PUD. (Such information should Plan as modified. be kept to a minimum and not required at this stage in the review process unless it is considered essential to the When the zone change is made, it requires a formal decision of approving the general intent and character of designation to be made on the zoning map. At this point, the development and for purposes of granting zoning most ordinances include a statement to the effect that such changes.) a map change does not constitute recording of a plat nor authorize the issuance of building permits. Only after the This information must be submitted for all of the land approval of the final development plan can such actions be intended to be included in the application Where projects taken. are developed in stages, formal application can only be Following preliminary approval, the ordinance should considered for the stage for which the above materials have specify some time limit within which the developer must been presented. Sketch plans including the bare essentials— present a final development plan for the PUD. Most land uses, densities, Site design, adjacent uses, circulation— ordinances allow a period of between six months to one should be submitted for the remaining lands to be year, usually with an option for an extension of an equal developed in future stages of the project even though they time period upon showing justifiable need. For example: are not under consideration for approval at this time. At the public hearing held by the planning commission, Within a maximum of_months following the approval the developer presents his proposal. The review authority of the preliminary development plan,the applicant shall should have before it the recommendations of the planning file with the Planning Commission a final development + staff or consultants, who should also be present during the plan containing in a final detailed form the information hearings. The commission must take into consideration the required in Section At its discretion and for information presented by the developer, the recommenda- good cause,the Planning Commission may extend for six tions of the planning staff,and the viewpoints of the public (6) months the period for filing of the final development + expressed at the hearing. After weighing all the evidence, plan. the commission must take formal action in writing, either This requirement is primarily an antispeculation device. approving the plan as presented, approving it subject to If a developer fails to submit a final development plan or certain specified modifications, or disapproving it. abandons the PUD project altogether, some action must be If a zoning change is required, the findings of the taken to ensure proper zoning treatment of the property. planning commission must be submitted to the legislative Where no zoning change has been granted and the developer body for action at the next regularly scheduled meeting. merely has tentative approval, one type of reversion clause The legislative body must weigh the evidence before it as may be used to protect the status of the land. Such a clause related to the request foe the zoning change.This inevitably states that if no final development plan is submitted, all results in some detailed questioning of the PUD proposal. approvals to date are null and void. The following ordi- However, it should be stressed that the role of the nance provision is an example of such a reversion clause: legislative body is to grant, grant with conditions, or deny If the applicant fails to apply for final approval for any the zone change,and not to get bogged down in substantive reason, the tentative approval shall be deemed to be review of the PUD 'design itself. While such legislative revoked a'nd all that portion of the area included in the meetings are open to the public, they should not be development plan for which final approval has not been 18 S 1 ; given shall be subject to the zoning and subdivision The function of the review authority is twofold. They ordinances otherwise applicable thereto. must be sure that the final development plan does not vary- Where a zoning change has been granted following the substantially from the previously approved preliminary j development plan. And they must review all new informa- -pproval of the preliminary development plan, many tion provided by the developer to determine its quality and immunities will be required by statute to again change the compliance with the substantive ordinance requirements. -.oning through a legislative act. By whatever means allowed Some ordinances merely state this fact; others spell out in state statutes,PUD ordinances should contain a provision what constitutes substantial compliance. For example: which specifically requires action to return land to its original state upon evidence that the developer has aban- The final Development Plan shall be deemed in substan- doned the project. If this is not done,the land remains in a tial compliance with the Preliminary Development Plan, I` state of regulatory limbo, often with a more intensive use provided modification by the applicant does not involve classification and no controls to guide development other a change of one or more of the following: than conventional standards of the applicable zoning (a) Violate any provision of this Chapter of the ordi- district. mance; Final Development Plan. The final development plan stage serves several important functions. It wraps up the (b) Vary the lot area requirement by more than ten (10) design specifics of the preliminary development plan in per cent; r their final form and includes the review of some additional items not presented in the preliminary design stage. It is the (c) Involve a reduction of more than ten (10) per cent last opportunity the review authority will have to ensure of the area reserved for the common open space and/or that the PUD conforms to the intent of the ordinance.This usable open space; stage should not be a time to reopen negotiations on (d) Increase the floor area proposed for nonresidential matters that were previously discussed and agreed to in the use by more than ten (10) per cent;and preliminary stage. As with the preliminary development plan, the final (e) Increase the total ground area covered by buildings development plan should be submitted to the planning by more than five(5) per cent. commission (or other substantive review authority)through While the above ordinance provision almost assumes that the professional planning staff. They should again be the developer will make the various changes which it allows, j required to complete their review within a reasonable review authorities must realize that redesigning and refining length of time (perhaps within 30 days) specified in the site plans prepared in the preliminary development stage ordinance. will almost always mean some variation from them. If he status symbol of a manicured front lawn is giving way to garden apartments, patio homes and townhouses with more usable open space. 'kz�a ,}_s�•+(. c'* `�,,+*,x . { A At— 'AL. Ft �h •mak [ivy>. 1 substantial compliance with the preliminary development attempt to apply this technique to PUD developments. plan is not established, the new plan must repeat the public Some of them vary the requirements according to types of hearing process for review of changes. housing development, retaining traditional setbacks and_ In addition to ensuring substantial compliance with the yard requirements in single-family development, and desig- preliminary development plan, the final development plan nating rear yards in townhouse, patio home, and other stage must review all of the information required for the preliminary development plan in its finalized, detailed attached single-family development. form. This includes site plans sufficient for recordingd At the other extreme of the regulatory continuum are anthose ordinances that provide no specific dimensional engineering drawings. All schematic plans presented in the preliminary development plan stage such as a landscape criteria whatsoever. For example: plan must be presented in their detailed form. Any items Each development shall provide reasonable visual and not submitted during the preliminary stage must be acoustical privacy for dwelling units. Fences, insulation, reviewed, and any final plats and public dedication docu- walks, barriers, and landscaping shall be used, as appro- ments should also be submitted at this time. priate, for the protection and aesthetic enhancement of Based on the establishment of compliance with the property and the privacy of its occupants, screening of preliminary development plan through the review of final- objectionable views, or uses and reduction of noise. ized site plans and specifications,and the review of any new High-rise buildings shall be located within a Planned Unit materials required by the review authority, the final Development in such a way as to dissipate any adverse development plan should be approved, approved with impact on adjoining low-rise buildings and shall not modifications, or disapproved. Final approval should be invade the privacy of the occupants of such low-rise determined by the planning commission with the assistance buildings. of the planning staff or consultants. No public hearing Yard, setback, lot size, type of dwelling unit, height, should be necessary at this stage since no new substantive frontage requirements, and use restrictions may be information requiring policy considerations will be pre- waived for the Planned Unit Development, provided sented by the developer. The planning commission should that the spirit and intent of this section are complied have the authority to grant final approval; the Iegislative with in the total development plan,as determined by the body only needs to conduct necessary legislative actions relevant to the project, such as accepting and recordingsite Plan Commission. The Plan Commission may determine that certain setbacks be required within all or a portion plans and plats, accepting any dedicated properties,streets, rights-of-way, and so forth. These actions must then be of the perimeter of the site and shall exercise ultimate discretion as to whether the total development plan does certified by the proper officials and recorded. If the planning commission does not approve a final development comply with the spirit and intent of this section. plan, their specific reasons for disapproval should be stated Drafters of such general ordinance language must be aware in writing and made part of the public record, as well as of the higher degree of responsibility it places upon the presented to the developer. review authority to decide what is"appropriate." Following formal acceptance and recording, building Another ordinance allows flexibility from traditional, permits may be issued and construction may begin. Final pre-set standards, but wisely provides to reviewers the approvals subject to modifications or conditions should be following sets of principles: agreed to in writing by the developer before recording and formal acceptance. Where a PUD does not require a zoning (1) Building Spacing: The requirement for building change, the legislative body may, nevertheless, have to spacing or side yards as they are often defined is based on several related factors. exercise final approval, since the approved plan may constitute the only legal control over the property. (a) Privacy: The minimum building spacing require- j ment is intended to provide privacy within the Building Spacing Requirements dwelling unit. Where windows are placed in only one The function, purpose, and objectives of building spac- of two facing walls or there are no windows,or where ing requirements must be addressed in PUDs. These the builder provides adequate screening for windows,' objectives are adequate light, ventilation, and ;privacy. or where the windows are at such a height or location Traditional yard and bulk requirements in zoning ordi- to provide adequate privacy, the building spacing;may nances are not readily adaptable to PUDs containing a be reduced. variety of new housing types and innovative site designs. (b) Light and Air: The building spacing provides.one Before addressing these design issues specifically, it is method of ensuring that each room has adequate light important to state the underlying principles upon which and air. Building spacing may be reduced where there they are based. The prime objective is assurance of are no windows or very small window areas and adequate light, ventilation, and privacy. In addition, such where rooms have adequate provisions for light and requirements provide for increased amenity through view air from another direction. protection and provide for access within the PUD. The conventional approach to regulation has been (c) Use: Areas between buildings are often used as through height and yard requirements—staggered building service yards, for storage of trash, clotheslines, or other utilitarian purposes. Where this use is similar for heights; setbacks, side and rear yards,and so on.Obviously, both houses, a reduction of building space permitting such slot-by-lot approach is inconsistent with the concept >f PUD and would preclude many design innovations. effective design of a utility space shall be permitted. Concepts such as zero-lot-fines, common open space,and Kitchens and garages are suitable uses for rooms mixtures of dwelling types do not lend themselves to the abutting such utility yards. traditional lot-by-lot approach. However, a surprising (d) Building Configuration: Where building configu- number of the PUD ordinances reviewed in this study still ration is irregular so that the needs expressed in (a), 20 (b), and (c) above are met by the building configure- 3. Building height and building length relate to exterior tion, reduced building spacing is permissible, as space requirements, walls, and glassed areas as follows: j determined by average spacing or by measuring lassedi walls contain an no spacing where rooms open toward adjacent buildings. (a) Where two opposingg areas (required or other), separation shall be as '2) Front Yard: The minimum front yard is intended to required by fire regulations. ,rovide privacy and usable yard area for residents. In practice, however, front yards are rarely used, so that (b) For other walls, related exterior space require- ments are as follows: only the privacy factor is important. Where the devel- oper provides privacy by reducing traffic flow through (1) Where a wall contains 25 per cent or more of } street layout such as cul-de-sacs, or by screening or required principal glassed area of any dwelling planting,or by facing the structure toward open space or unit, depth of yard shall be 10 feet plus 2 feet for ' a pedestrian way, or through the room layout of front each story in height plus 1 foot for each 15 feet of evaluation, it is possible to reduce the front-yard building length. requirement. (2) Where a wall contains some, but less than 25 per cent of, required principal glassed area of any (3) Lot -Width: A minimum lot width is intended to dwelling unit, depth of exterior space shall be 5 prevent the construction of long, narrow buildings with feet plus 1 foot for each story in height plus 1 foot inadequate privacy, light, and air.There are situations as for each 15 feet of building length. in cul-de-sacs, steep slopes, or off-set lots where,because (3) Where a wall contains none of the required of lot configuration or topography, narrow or irregular glassed area of a dwelling unit, no yard is required lots provide the best possible design.Where the design is except for compliance with fire regulations or if such that light, air, and privacy can be provided, the nature or location of any other glassed areas especially for living spaces and bedrooms,a narrower lot involves loss of reasonable privacy for interior width may be permitted. space requiring such privacy. (4) Where designs are such that the above standards are not met, site requirements in the Table of Dimensional Amendments to the Final Development Plan J Requirements may be increased. Often, site conditions or other complications in the if physical development of the project will not be realized An approach becoming more popular is the building until after final development plans are approved and spacing standards which specifies the distance between recorded and construction has begun. PUD ordinances structures. The standards do not specify front or rear yards, should be ready for such situations by including specific Instead specify distances between buildings which are g provisions for amending the final development plan. ndent on a number of variables:whether any windows Administrative efficiency is served if such amendments present on a building wall; whether provided windows are divided into two categories: minor and major changes. are living room windows or not;the height of the building; Minor changes are generally defined as changes which do and the length of the building.These standards are based on not substantially change the concept of the PUD as FHA's requirements as modified for local zoning ordinance approved and are limited to small site alterations such as use. The following example is taken from a model realigning a minor road or shifting a setback slightly. Such ordinance (F.H. Bair, Jr., Planning Cities [Chicago: ASPO, changes should be routinely handled as administrative 19701.) problems to be taken care of by the professional planning 1. Living rooms are required to have exterior glassed staff or some enforcement officer such as the building areas equal to at least 10 per cent of floor area.(There is inspector. Major changes are substantial deviations from the nothing new or startling about this. Most housing codes concept which was approved by the review authority and require it.) require more attention for revision. They typically include 2. Yards, courts, and other open spaces are related to such things as changes in density, open space, land use, or glassed areas and to walls, and need not be "ground to lot size. With major changes some ordinances require developers to go back through the entire review process, sky," and may in some cases be partly off the building site.Thus: including public hearings. Others require planning commis- sion approval only. Usually, such changes will involve (a) Where a wall contains less than 25 per cent of legislative approval, since the change might have affected total required glassed area of any dwelling unit at or the original legislative action and since the recorded PUD below the third floor, up to half of the required yard plan is usually held to be a regulatory device adopted by depth may be in the adjacent half of a street. resolution of the local legislative body. Amendments to it (b) Where a wall contains glassed area for dwelling must therefore be treated as regular zoning amendments in units at or above the fourth floor, up to half of the most cases. The following ordinance provision requires a required yard depth may be in the adjacent half of a complete reprocessing of major changes: street regardless of orientation of required glassed Minor changes in the location, siting, or character of arms' buildings and structures may be authorized by the (c) Where a wall contains 25 per cent or more of zoning administrator, if required by engineering or other total required glassed area of a dwelling,up to half of circumstances not foreseen at the time the final develop- the required depth may be in the adjacent half of any ment program was approved. No change authorized by common livability space of suitable character, such as the zoning administrator under this section may increase a park, a stream, a lake, or other open space of a the size of any building or structure by more than ten similar nature. per cent, nor change the location of any building or 21 structure by more than ten feet in any direction; substantial compliance defined as density increases of 10 provided, notwithstanding anything in the foregoing,the per cent or less.The ordinance may also use the 10 per cent zoning administrator may not permit changes beyond density increase criteria to define major and minor amend- the minimum or maximum requirements set forth in this ments. ordinance; Enforcement All other changes in the planned unit, including changes PUD ordinances should include a section on enforce- in the site plan and inthedevelopment schedule, must be made under the procedures that are applicable to the ment to ensure that the proposal approved in the final initial approval of a planned unit. development plan stage is carried out. The section should include provisions for enforcing development schedules Many ordinances leave the business of determining (including the start of construction) and development which specific changes are minor and which are major to phasing control. the discretion of public officials such as the planning Primarily as an antispeculation function, many PUD director or the zoning officer. However, the importance of ordinances contain a provision entitled, "Failure To Begin changes in the final development plan may require more Development." This provision requires that construction on definite legislative guidance through specific criteria the approved final development plan must begin within a included in the ordinance. Several major changes could specified time period after final approval has been granted, drastically alter the character and effect of a project. An usually between 6 and 18 months. Extensions are granted example of ordinance language which includes criteria for when good cause for them can be shown.Another approach distinguishing-between major and minor changes follows: is to require that the approved development be completed_ Minor changes in the location, siting, and height of Within a specified time period, again with extensions buildings and structures may be authorized by the Plan granted upon the showing of good cause.Examples of both Commission without additional public hearings if re- types of provisions follow: quired by engineering or other circumstances not fore- If no construction has begun in the PUD within seen at the time the final plan was approved.No change months from the approval of the PUD and recording of authorized by this subsection may cause any of the documents, said approval shall lapse and be of no further following: effect. The Plan Commission, upon showing of good (a) A change in the use or character of the development; cause by the developer, may extend for period(s) of months,the time for beginning construction. (b) An increase in overall coverage of structures; The applicant must begin and substantially complete the (c) An increase in the intensity of use; development of the planned unit within years from the time of its final approval. If the planned unit is (d) An increase in the problems of traffic circulation PP and public utilities; to be developed in stages, the applicant must begin and (e) A reduction in approved open space; substantially complete the development of each stage within two years of the time provided for the start of (f) A reduction of off-street parking and loading space; construction of each stage in the development schedule. (g) A reduction in required pavement widths. If the applicant does not begin and substantially complete the planned unit, or any stage of the planned All other changes in use, or rearrangement of lots, unit, within the time limits imposed by the preceding blocks, and building tracts, or any changes in the section, the planning department shall review the provision of common open spaces and changes other planned unit and may recommend that the time for than listed above, must be made by the City Council completion of the planned unit be extended, that the after report of the planning staff and recommendation approval of the planned unit be revoked, or that the by the Plan Commission. Such amendments may be planned unit be amended. The planning department's made only if they are shown to be required by changes recommendation shall be subject to t�e procedures in conditions that have occurred since the final plan was authorized by Section governing the approval of approved or by changes in community policy. Any an initial application for a planned unit. changes which are approved in the final plan must be recorded as amendments in accordance with the proce- If the final development plan is revoked because of lack dure established for the recording of the initial final plan of compliance with the above provisions, the state of the documents. land can be somewhat nebulous. If a zoning change was granted, then the provisions of the new zoning district may Some of the ordinances reviewed required major amend- govern the use of the land. However,this is usually a higher amend- ment procedures to go into effect at the first sign of a density zoning district than the original one, and the local change. Others allowed some leeway, such as density government may wish to revert to the original district increases up to 10 per cent. This is an attempt to regulations. If so,a reversion clause and/or legislative action distinguish between density increases which may actually changing the zoning (as provided for in the preliminary affect the project character and small, insignificant ones development plan stage)is in order. If a PUD is handled as a caused purely by minor plan changes. conditional use, a simple clause may be used which states Allowing some leeway may be more rational, but the that revocation of the final development plan assumes aggregate effect of such marginal allowances from basic automatic reversion to the original zoning controls,with no design standards should be closely watched. Many ordi- necessary legislative act. One ordinance provision states the nances include language (such as described earlier) which following: states that final development plans must be in substantial compliance with the preliminary development plan, with If no substantial construction has begun or no use 22 r-. X � , _ Iy r i i,�, -- S • : i jk{•`Z F� F rvice station in a California PUD is in a planned commercial area also including a neighborhood shopping center,a church,and a park. established in the PUD within the time stated in the final for controlling the timing of various stages are an important k development and construction schedule,the Final Devel- protective device. They are based on the premise that opment Plan shall lapse upon written notice to the unforeseen circumstances may occur which interfere with applicant from the County Board and shall be of no the development process before all of the various stages further effect. In its discretion and for good cause, the have been completed. County Board may extend for a reasonable time,not to Phasing controls are generally concerned with three exceed one year, the period for the beginning of fundamental PUD elements: density, open spaces, and r construction or the establishment of a use. If a Final nonresidential land uses (primarily commercial). By defini- I Development Plan lapses under the provisions of this tion, a PUD only maintains its integrity when all of the ;J section, the Zoning Officer shall remove the Planned complementary parts of the whole product are intact. If Development conditional use permit from the Official one element is deficient or omitted,or if one element is out ' Zoning Map and shall file a notice or revocation with the of proportion with the others (such as the commercial- recorded Final Development Plan. The zoning regula- residential ratio), the development sacrifices its planned tions applicable before the development was approved integrity and may be seriously damaged. For example, if in shall then be in effect. a PUD containing a mixture of housing types and open spaces, the higher density housing is constructed in the Another ordinance provides for a similar action as follows: earlier stages of the project with major open spaces If no development has occurred pursuant to the adopted included in the latter stages, the intent of the planned unit - plan (a) within months after the date of the design will be seriously violated if the project stops adoption of the PUD, or (b) upon expiration of any midway. Since PUD encourages density transfers within extension of time for starting development granted by projects, micro densities within subregions of a project may the City Council, the approved plan shall become null be much higher than average project densities. If high and void and a new precise plan shall he required for any density areas are constructed first and the remaining area is development on subject property. not completed,essential facilities may be absent. A variety of approaches have been used to guard against ical officials should check state statutes and consult such eventualities. The most common one is to require the attorneys to determine what is necessary. Regardless simultaneous development of different project elements in .ghat they dictate, PUD ordinances should include the reasonable proportion to one another. Typical ordinance necessary protection by stating how the land is to be provisions stipulate that the density for any One stage of t controlled if the approved plan isnot implemented. project cannot exceed overall project densities by sotAt In PUDs proposed to be built in several stages, provisions pre-set amount, sometimes not at all. Similar provisiorA 23 i exist for open space and commercial areas. They require ordinances use bonding procedures,escrow agreements,and that common open space and other project amenities ba similar legal devices to serve this function. For example: provided in each stage of the project in proportion to the rate of housing construction for that stage. Some ordi- The Planning Commission may require a performance nances are more strict on commercial development,denying bond be furnished and filed with the City Clerk for any commercial building permits until some pre-set amount private improvements. An escrow agreement and of proportion of housing is constructed. Where commercial account approved by the City Attorney as to form and development is allowed on the basis of preexisting market content and by the Planning Commission shall be required in the amount of one hundred and twenty-five demand, some leeway may be appropriate. Below is an example of an ordinance provision regulating staged devel (125) per cent of the estimated construction cost and opment in this manner: engineering. These funds may be dispersed upon certifi- cation by the Project Engineer and by the City acting If the sequence of construction of various portions of through the Director of Public Works. Said escrow shall the development is to occur in stages, then the open accompany the request for final approval to insure space and/or recreational facilities shall be developed,or completion of all public site improvement, streets, committed thereto, in proportion to the number of parking areas, sewers, utilities, landscaping, plantings, dwelling units intended to be developed during any given and screening. stage of construction as approved by the Planning Another ordinance provision provides alternative guarantees Commission. Furthermore, at no time during the con- that open space will be included as stated in the plan: struction of the project shall the number of constructed dwelling units per acre of developed land exceed the The Planning Commission may require adequate assur- overall density per acre established by the approved ance, in a form and manner which it approves, that the Conditional Use Permit. common open space shown in the final development A more general provision based on the same principle plan will be provided and developed. The following states: methods of assurance are intended as illustrative and they may be used singly or in combination or in After general construction commences, the Director of conjunction with other similar methods: Planning shall review, at least once every six(6)months, 1. The City may accept a bond, corporate surety,or all building permits issued and compare them to the other acceptable financial guarantee, in a form which overall development phasing program. If he determines complies with the provisions of the subdivision that the rate of construction of residential units or regulations of the City and in an amount sufficient to nonresidential structures substantially differs from the purchase the common open space shown in the final phasing program, he shall so notify the developer and development plan or alternative acreage which is Building Commissioner, in writing: thereafter,the Build- equivalent in size and character. ing Commissioner may issue such orders to the developer 2. The title to the land shown as common open space as it sees fit, and upon continued violation of this may be put in escrow. The escrow agreement to subsection may suspend the developer from further provide that the land is to be held in escrow until the construction of dwelling units or nonresidential struc- Planning Commission has certified to the escrow tures until compliance is achieved. agent that the planned development has been com- pleted,at which time the common open space is to be The above provisions assure the local community that no conveyed as provided in subsection of this PUD element will become out of balance with the others. ordinance. The escrow agreement may provide for the Some even state that if a PUD is proposed to be built in release of common open space by the escrow agent in stages, that each stage must stand on its own as a complete stages. The Planning Commission is to certify the unit, meeting the requirements of the ordinance for completion of each stage of the planned development density, open space, commercial facilities, etc. In.spite of to the escrow agent. The escrow agreement must the guarantees, such requirements may severely restrict provide that a portion of the open space is conveyed design opportunities. There may well be site conditions in the manner provided in section if the which are ideally suited to common open spaces clustered planned development is not completed. In this event, in one portion of the development, constraints which may the open space which is conveyed is to be of the same encourage a developer to proceed with higher density proportions to the open space provided on the final portions of the PUD first in order to relieve cash flow development plan as the dwelling units that have been problems resulting from high front-end costs. Theserob P built are to the total number of dwelling units which i lems are very real ones to which the above kinds of are allowable by the final development plan. i provisions show little sensitivity. 3. In conjunction with paragraph (1) of this section, A more flexible approach is to use other forms of if any of the planned development which includes guarantees that the various stages of the total development common open space is held by the developer on will be constructed as planned and approved.For example, option, the developer may assign to the City the right financial sureties which guarantee the provisions of major to exercise the option to acquire the common open open spaces in later project stages could be used. Some space. 24 i, j IAI ' Ik -. Ir`6 Chapter 5. Substantive Design Standards x �4 Including a chapter entitled "Substantive Design Stan- as each PUD application is reviewed. In some of these dards" in a report on PUD must seem at first glance communities officials have found the finished product far contradictory. After all, one might argue,is not PUD a way inferior to what they had expected. In other similar to get away from rigid standards that more often than not circumstances developers have felt so absurd in the give and get in the way of creative designers? Yet, most planning take that they will never build a PUD in that place again. In officials seem reluctant to completely abdicate, with good either case, ill will usually results and the PUD concept gets reason, some minimum controls relating to health and a bad name locally, depriving the community of some .safety—and, increasingly, amenity as well.The present state possibly good projects in the future. of the art strongly suggests that most jurisdictions are A workable balancemust therefore be achieved through allowing more, but not complete, flexibility from tradi- selective flexibility in a PUD ordinance. Local officials must tional standards. Some things like overall density are still decide which design elements merit specific standards— r relatively tightly controlled, while in other things such as density, open space, parking. This does not mean that any k building type mix and spacing there are broad guidelines. design element which is easily controlled through quantifi- Such enhanced flexibility generally increases the level of able standards should be so treated in an ordinance. eistrative discretion exercised by public officials, Minimum lot sizes are easily quantifiable, but there are g the PUD process a more administrative than more flexible ways to control the same design elements in legislative control mechanism. Some ordinances leave most question. The important point is that only the most critical of the task of establishing design criteria to the discretion- design elements of a PUD should be controlled through F ary judgment of planning commissionsand legislative specific numerical standards. E bodies conducting PUD review. Others choose to tie down Other design elements may be handled by including critical design elements by including specific criteria in performance policies in ordinance language, leaving the ordinance language. Some of these standards may be developer free to pursue a variety of options, while still selectively transposed from traditional zoning and subdivi- providing guidance toward desirable community goals. Such sion regulations while others must be tailored specifically to policies let the developer know how his final product is the PUD concept. Still other design elements may go expected to perform, yet leave him free to arrive at that i entirely unregulated,leaving the developer free to exercise a point in any way he sees fit. For example, many PUD I` variety of options. Authors of PUD ordinances must be ordinances require specific design treatment of the perim- especially sensitive to the needs of their particular commu- eter of PUD projects, such as special setback requirements. j nity and the fundamental principles of the PUD concept to But one specific setback requirement cannot meet all ensure that substantive design standards promote high possible site conditions. The more flexible approach would ' quality development of lasting amenity without destroying be to include performance policies in the ordinance which s' the basic concept of the PUD process. outline desirable perimeter conditions without specifying PUD ordinance flexibility has been a subject of continu- how they are to be achieved. This approach places the ing controversy between planners and developers. Many burden of proof on the developer to justify his design " local governments have been reluctant to give up their choices, rather than requiring him to meet specific stan- traditionally tight hold over development standards and dards which might be totally inappropriate for the site in adopt PUD ordinances which read like building codes. (One question. California community, according to one developer,uses the Authors of PUD ordinances must consider the qualifica- "encyclopedia" approach in length and depth or ordi- tions of the various actors involved in the review process nance.) Such ordinances inhibit creativity in development when drafting development standards.There will usually be and severely restrict the developer's options, and in fact a number of basic design elements for which any local gage them from making application under PUD government will want to have specific standards in their ins in the first place. At the other extreme, some ordinance. However, beyond this point, standard setting governments have been quick to adopt flexible should reflect the qualifications of the review authority. ordinances full of ambiguous policy statements which leave Generally speaking, the higher the qualifications or design the bulk of the design specifics to be hammered out expertise of the planning staff and commission,the greater through negotiations between developers and local officials their ability to administer a highly flexible ordinance ! 25 9, Another survey question sheds further light on the issue requiring numerous discretionary judgments. Some ordi- i nance provisions such as "maximum residential density of flexibility. Planners were asked to describe the most shall not adversely affect adjacent development," leave innovative and weakest portions of their PUD ordinances. PUD administrators with very little guidance for making Comments on innovative ordinance provisions generally- decisions. Such ambiguous provisions require much higher stressed their increased level of flexibility,whereas most of degrees of technical sophistication to administer than the weak points of PUD ordinances were examples of vague specific numerical standards. With qualified professional ordinance language which needed to be more specific. In assistance, more design details may be left to evolve from addition to these remarks, over 37 per cent of the planners ' the negotiation process rather than being tied down in interviewed had amended their PUD plans for the commu- ordinance language. On the other hand, in smaller commu- nity as a whole. This principle should apply regardless of nities where design review may not be all that skillful it whether PUD is treated as a floating zoqe, a conditional may be desirable to adopt a more detailed ordinance. This use, or a predesignated special district on the zoning map. not only makes an ordinance easier to administer, but it PUD densities must relate to existing and planned commu- helps to reduce the dangers of arbitrary decisions favoring nity facilities: schools, parks, transportation facilities,water or discriminating against various developers. and sewer extensions, and capital expenditure programs. The attitudes of planners and developers toward flexibil- Criteria for granting density bonuses above underlying ity in PUD design standards vary considerably. On the district regulations must be based on sound planning whole, planners tend to favor more specific standards while principles, not merely political prerogative. They must be most developers feel the reverse. However, the ASPO survey granted in exchange for design amenities and innovations. results indicated a considerable mixture of opinion in both camps, more than might have been expected. Planners and developers were asked to respond to a list of design elements for which specific standards might be included in Density ordinance language. Table 5 presents the results. Most There are only two basic approaches to PUD density: striking is the fact that a higher percentage of developers projects which do not increase overall gross densities and favored specific standards for permitted land uses and projects which do. Controls in the first category,regardless density than public agency planners. Both planners and of how they are handled, generally result in some form of developers did not favor architectural standards and win- density transfer system allowing a reduction in lot sizes to dow-wall location requirements. A higher percentage of permit the clustering of dwelling units usually in exchange planners than developers favored specific standards for for common open spaces. Micro densities in such PUDs may most other design elements, although no item received their be increased well beyond the limits placed on the overall overwhelming approval. Only one-quarter to one-third of project density. However, gross project densities will be no the developers surveyed favored specific standards to most greater than those permitted in the original zoning district of the items listed. regulations. ' TABLE 5.Attitudes Toward Ordinance Design Standards for PVDs Planners and Developers Favoring Ordinance Standard Per Cent of Ordinances Design Elements With Specific Standards Per Cent of Planners Per Cent of Developers Uses permitted 79.0 50.0 83.0 Density 77.8 61.3 70.2 Minimum parcel size 92.6 57.5 31.9 Usable public open space 46.9 57.6 38.3 Private open space 33.3 61.3 31.9 Maximum site coverage 51.9 60.0 57.4 Building spacing 44.4 35.0 31.9 Building bulk and height 46.9 35.0 36.2 Building architecture 4.9 15.0 14.9 Location of window walls 7.4 15.0 10.6 Quantity of parking spaces 74.1 63.8 72.3 Location of parking spaces 24.7 35.0 19.1 Perimeter requirements 34.6 60.0 29.8 School and recreation site dedication 25.9 61.3 36.2 Streets and utilities 48.1 52.5 44.7 Landscaping 33.3 67.5 27.7 Signs and street lighting 35.8 57.5 27.7 Screening and fencing 38.3 61.3 29.8 View protection 16.0 56.3 27.7 26 I A combination of tools may be used to control micro with any concrete measures to assist them in deciding what �( densities within such projects. Minimum lot sizes may be level of "quality and distinction" is necessary before i reduced to allow clustering, retaining floor area and developers are compensated for a particular density level. building height requirements. Some ordinances only estab- Granting prespecified density increases in exchange for j ' -4ximum gross project densities at "x" number of some more-or-less specific project amenities is a more 7 g units per acre, using a building spacing require- common and a sounder approach to dealing with density if MI.—to take over the minimum lot size function. Building increases. One good example of such an ordinance provi- sion designed to meet the needs of a particular community is: heights and floor areas may also be used in combination j with the above techniques to establish the upper limits of micro densities within a project. Density increases. Density increases shall be governed by Density transfers allow more flexibility than conven- the precepts listed below, which are to be treated as tional zoning techniques(depending on how micro densities additive,and not compounded. �I are controlled and to what level).Innovations in site design A.Open space reservation shall be considered for density and open space planning are possible, as well as lower costs increases according to the following provision: through reduced street lengths and public service exten- For improved and unimproved common open space sions. Such methods might be appropriate in some zoning 1. The first acre of common open space per 20 acres S, districts where only slight deviations from conventional of gross, if improved, permits a maximum increase of , development patterns are desired. In fact, most simple eight (8) per cent;if first acre of common open space E: cluster developments really still only permit one type of is unimproved,six(6) per cent is allowed. 1 dwelling unit and are not as flexible as more complex PUDs 2. The second acre of common open space per 20 that permit dwelling type mixtures. Thus, we might say acres of gross, if improved, permits a maximum that there are two subcategories of projects which do not increase of four(4) per cent;if unimproved,three(3) increase density: those that still permit only one type of per cent is allowed. dwelling unit and those which allow a mixture. 3. Each additional acre of common open space per Allowing density bonuses in PUDs is another approach 20 acres of gross, if improved, permits a maximum E; which is becoming more and more common. Over 45 per increase of three.(3) per cent;if unimproved,two(2) cent of the PUD ordinances reviewed in this study allowed per cent is allowed. such bonuses. Table 6 indicates that the amount of these B.Character, identity, and architectural and siting varia- bonuses ranged considerably: one-fifth of the ordinances tion incorporated in a development shall be considered allowed increases up to 10 per cent, and another two-fifths cause for density increases not to exceed fifteen(15) per allowed bonuses of between 11 and 25 per cent. cent, provided these factors make a substantial contribu- tion to the objectives of a Planned Unit Development. ABLE 6.Per Cent of Density Bonuses Allowed The degree of distinctiveness and the desirable variation in PUD Ordinances achieved shall govern the amount of density increase which the Plan Commission may approve. Such varia- tions may include, but are not limited to,the following: ,4 Per Cent Bonuses in 1. Landscaping (a maximum increase of five (5) per Density Allowed Per Cent of Responses cent); streetscape; open spaces and plazas; use of existing landscape; pedestrian way treatment; and 0- 10 20.7 recreational areas. 11- 25 41.4 2. Siting (a maximum increase of five (5) per cent); 26- 50 27.6 visual focal points; use of existing physical features 51- 75 _ 76-100 10.3 such as topography;view;sun and wind orientation; circulation pattern;physical environment;variation in Total Responses 100.0 building setbacks; and building groups (such as clustering). Some local governments consider the PUD approach 3. Design features (a maximum increase of five (5) Y, inherently superior to conventional developments and per cent);street sections; architectural styles;harmo- therefore grant higher densities to PUDs as a matter of right nious use of materials; parking areas broken by 4. in hopes of encouraging developers to choose this alterna- landscape features;and varied use of house types. tive. However, the more common approach is to grant Another less detailed ordinance provision uses the density increases or bonuses only upon compliance with following criteria for granting density increases by allowing certain ordinance criteria whether they be purely subjective reductions in minimum lot sizes: evaluations or strict numerical standards. Unfortunately, some ordinances simply include a very The Planning Commission may further authorize a generalized policy statement which says that any density partial reduction in the Iot area requirement in the increase is allowable if it meets the approval of the review Planned Unit Development net project area according to authority. Under this method presumably every PUD the following: G application is granted a density bonus depending upon the A. For undeveloped common open space, a maximum of the proposal in relation to the site, surrounding reduction of three(3) per cent; ment conditions, amount of open space, and so B. For distinctiveness and excellence in design and land- scaping, a maximum reduction of five (5) per cent;and i These design issues are important ones and should be C. For the removal of deteriorating residential structures addressed in any request for increased density. However, occupying the Planned Unit Development site, a maxi- this poor method stops short of providing decision makers mum reduction of fifteen (15)per cent. 27 Both of the above examples go considerably further than and design standards which should normally be met by the first density bonus method by tying down the specific developers in the first place should not be items for the design elements to be exchanged for increased densities. bargaining table_ They also specify the maximum amount of density in- Density bonus criteria do not have to be purely creases permitted, providing the PUD review authority with quantifiable. However, they should at least consist of a more specific guideline for making their decisions. There established policy guidelines in ordinance language. Leaving is still much room for subjective analysis—deciding what density bonus decisions to administrative discretion with- constitutes "distinctiveness and excellence in design and out some established policies does not provide local landscaping"—but this cannot be avoided if maximum governments with enough guidance in the negotiating flexibility is to be obtained. While some ordinances go to process, and the temptations for the arbitrary treatment of the extreme of only allowing density bonuses in exchange applicants cannot be overstressed. for pre-set amounts of open space,there are definitely some A variety of methods are being used to control densities design amenities, not easily quantified, which are worth in PUDs, although most of them vary little from conven- bargaining for. The subjective evaluations of qualified staff tional techniques. Dwelling units per acre and minimum lot members must be relied upon to administer such criteria. sizes are the most common methods. The actual breakdown As a converse to density increases,some ordinances also on the techniques used by respondents appears in Table 7. contain provisions for reducing densities below the normal limits when specific conditions so warrant. For example: TABLE 7.Density Control Techniques A The Planning Commission and/or City Council reserves the right to reduce the density on a particular parcel Basis of Measurement per Cent of Responses when it has been determined that such reduction is warranted by conditions specifically applicable to the parcel, such as topography, character of the surrounding Dwelling Unit/Acre 45.7 property,etc. Lot Area/Dwelling Unit 23.8 Lot Area/Dwelling Unit 1.9 Another ordinance provision contains more specific criteria based on number of bedrooms for guiding density reduction decisions. They include the Floor Area Ratio following: 8.6 Other 20.0 A. Inconvenient or unsafe access of the development. Total Responses 100.0 B.Traffic congestion for streets adjoining the develop- ment. C.An excessive burden imposed on parks, recreational Many ordinances actually use a combination of the areas, schools,.and other public facilities which serve or above techniques and most of the responses in the"other" are proposed to serve the development. category were combinations of several techniques including land-use intensity systems, bulk standards, open space While we found such examples, it would probably be quite ratios, impervious surface ratios, and bedrooms per acre. difficult in particular circumstances to implement such Several ordinances use a system of dwelling units or provisions. bedrooms per acre based on the dwelling unit types allowed Ordinances containing both criteria for density increases in various zones. and decreases are really moving in the direction of Most ordinances which treat PUD as a floating zone or a performance zoning, establishing a density base from which conditional use specify density based on the standard permitted densities may vary upward or downward depend- zoning districts in which PUDs are allowed. Where a ing on the particular_conditions relevant to each PUD proposed PUD overlaps more than one zone, the densities proposal. of the various zones may be averaged, or densities may be It should be obvious that there is a wide range of calculated separately for the portions of the PUD in each of alternatives available for tailoring density bonus criteria to the different zones. Where PUDs are treated as predesig- local needs. Open space and design excellence are the two nated zones on the official zoning map, various density most common trade-off items. However,respondents to the requirements may be used for different PUD districts, ASPO survey indicated that density bonuses were granted according to the various conditions of their geographic in exchange for a variety of items or conditions including location. Ordinances using acreage as the basis of density the following: minimized grading and the preservation of calculation should always specify whether densities are to t certain natural features;underground utilities;the inclusion be calculated on gross or net project acreage and should of certain amounts of low-income housing in PUDs; spell out exactly what constitutes net acreage. developed recreational facilities;excellence in dwelling unit We believe it is useful to discuss at this point the design; decreases in publicly dedicated streets; and larger land-use intensity rating system of land development size projects—the larger the PUD, the higher the density planning. It was originally developed to be used as a guide bonus allowable. by the Federal Housing Administration to apply to insur- ln theory, conditions met by developers in exchange for ante guarantee standards—not as an element of local zoning density bonuses should be aimed at increasing the amenity controls based on traditional state enabling statutes. Never- of a PUD. In practice, the requirements of local govern- theless, the system should be examined:and carefully ments sometimes go far beyond this point. Local govern- considered by any jurisdiction either adopting or amending ments should use some caution in this matter, keeping their a PUD provision. The "LUI". system is basically a method demands reasonable and relevant to the needs of the PUD of relating floor area ratio to land area as a density control in question. Density bonus criteria should not be used as a technique, coupled with a series of numerical ratios of open leverage mechanism to prop up a poorly written ordinance, space, parking space;and other measures. (Readers unfamil- 28 iar with the LUI technique should read the Appendix,which "many imaginative redevelopment schemes" had been contains a full description of the system.) LUI is particu- "killed" in older sections of his city due to a two-acre larly adaptable to PUD because of the flexibility in mixing minimum requirement. Others stated that through careful dwelling units of different kinds. design, PUDs as small as one acre could and had been 'hile some authorities (like F.H. Bair, Jr., in Planning successful. I Chicago: ASPO, 1970) heartily recommend adoption Advocates of low minimum parcel sizes also cite the of LUI concepts in zoning ordinances as a general principle, arbitrariness of higher cut-off points. They argue that high we must take note of the relatively slow growth—after a minimum acreage requirements arbitrarily exclude smaller decade—in the number of ordinances that use LUI. Some parcels nearer the fringe which have been skipped over as officials feel uncomfortable with a new technique, espe- urban growth has moved outward.PUDs have been success- cially if it appears complex, and the complexity does ful in urban redevelopment and spot renewal programs. demand skilled review personnel. Also, there is some Some local governments prefer lower minimum parcel size resistance to the apparent inflexibility in LUI itself. LUI requirements since they offer a wider range of development was not designed to be an exact straightjacket; it was options to more land. Many would prefer that small parcels designed as a guide to site plan review. Finally, and we be developed under PUD provisions since local governments '' suspect most important, many suburban officials don't have more discretionary control over the development want a system that takes away the power to dictate the process than under conventional regulations. Developers type and proportion of dwelling units to be built in a PUD. advocating smaller minimum requirements state that the economics of local markets and unique site characteristics Parcel Size were important factors in determining the appropriateness There is considerable disagreement over what constitutes of PUD parcel sizes, stating that higher minimum acreage an appropriately sized PUD. A few planners and developers figures bore no relation to market realities. feel strongly that there should be no minimum parcel size On the other hand, advocates of higher minimum parcel requirement at all.Most, however, favor such requirements, size requirements argue that below some minimum acreage but disagree widely over what an appropriate minimum figures, PUDs cannot be adequately developed from a parcel size should be. physical design standpoint. Unfortunately, there are as The ASPO survey asked planning agency staffs to state many different minimum figures as there are advocates of the minimum parcel sizes required by their ordinances. It this position, and it is impossible to derive any real also asked what parcel sizes they preferred, irrespective of consensus. What they are really saying is that their their ordinance requirements. Table 8 presents their an- conception of the ideal PUD, including a mixture of swers to both of these questions. housing types, large open spaces, developed recreational 3LE 8.Minimum Parcel Sizes Required by Ordinance facilities, and separate vehicular and pedestrian circulation systems, cannot be squeezed into a small parcel,'or in the and Preferred by Planners i' words of one respondent, "the smaller the size, the more, difficult to achieve the stated purposes of PUD"(as defined Minimum Parcel Size in their ordinance). j Required in Ordinance Minimum Parcel size A more valid criticism was that low minimum parcel size 4 Per Cent of Preferred Per Cent Minimum Parcel Size Responses of Responses requirements open the way for a flurry of development applications which may not really be PUDs. Also, review processes may be overloaded by numerous small applica- No minimum 15.1 17.1 tions. Small parcel sizes may encourage situations in which 5 acres or less 32.1 53.6 6-20 acres 26.4 12.2 PUD procedures are improperly substituted for the granting 21-50 acres 20.7 12.2 of a variance or exception. Some planners also report that 51 acres or more 5.7 4.9 allowing smaller acreages resulted in developers obtaining Total Responses 100.0 100.0 zoning for apartments under PUD procedures when it would be more difficult to obtain through conventional W' As shown in Table 8, minimum parcel sizes required by zoning. ordinances were relatively uniform across the various It appears from all this evidence that the minimum categories up to 50 acres, with the largest percentage falling parcel size decision should be decided in favor of low in the five acres or less category. Most planners responding minimum parcel size requirements. Proponents of larger to the survey disagreed with their ordinances, generally minimums have some valid arguments, but many of them preferring a lower minimum requirement.,Support for no seem to miss one important point. PUD is a process, not a minimum was relatively small; however, a majority of the product. It is a process designed to provide a variety of I` respondents preferred minimum requirements of five acres alternatives for better development. Obviously, mixed or less, with two acres approximately the bottom limit. housing, large open spaces,and separate circulation systems t1 Developers' opinions covered a broader range,but they also cannot be obtained on a two-acre site. But there is a real tended to favor smaller minimum parcel size requirements. danger in stereotyping PUDs in this manner. During field The comments of planners and developers contained in research for this project, we visited some excellent PUDs in d rt--- questionnaires provide some helpful insights into the the two- to three-acre category. This would lead us to g' ents for and against minimum parcel sizes. Propo- conclude that authors of PUD ordinances should not of no minimums argue that there are not enough attempt to control the character of the final product criteria to decide what constitutes good development, and through a minimum parcel size requirement. There are therefore any minimum parcel size requirement must be other design standards to control that.The abuses feared by arbitrarily accepted. Some of their arguments were sup- proponents of large parcels should be corrected through ported by actual experience. One planner stated that better administration and review.Those who feel they must 29 control parcel size, especially in largely undeveloped subur- by dwelling units, garages, carports, parking areas, or ban areas, should consider smaller minimums for more driveways. Net area is defined as the site area less all land urban areas, either allowing deviation from the parcel size covered by buildings, streets, parking lots or stalls, requirement where location and site conditions so merit,or driveways, and all other paved vehicular ways and having a multiple set of parcel size requirements to deal facilities_ with various settings. At least 20 per cent of the total area shall be devoted to such properly planned permanent usable open space. Open Space Common open space shall comprise at least 25 per cent Open space is an essential component of any well- of the gross area of the planned unit development to be designed PUD. It provides areas for active and passive used for recreational, park, or environmental amenity recreation immediately adjacent to dwelling units. It for collective enjoyment by occupants of the develop- increases project amenity by providing landscaped areas and m_ent but shall not include public or private streets, important scenic vistas. Totally integrated throughout driveways, or utility easements, provided, however,that projects, open space is an important design element, up to 50 per cent of the required open space may be breaking up monotonous patterns of housing and improving composed of open space on privately owned properties R the visual attractiveness of the development. Open space dedicated by easement to assure that the open space will increases design flexibility and permits the preservation of be permanent. natural features for even greater amenity. Well-designed open space is an important factor in obtaining quality' residential environments of lasting value and high apprecia- tion. Although its inclusion is not always mandatory,most gross or net area is essential; a surprising number of PUD ordinances require it in some form or another. ordinances neglect to do so.Also,either at this point or in a There are wide discrepancies in the use of the term open section of general definitions, the components of net space. Many ordinances could be improved by a more project area must be spelled out in detail, as in the second precise explanation of what is meant by their use of the ordinance provision illustrated above. If ordinance defini- term. In terms of ownership there are essentially three basic tions distinguish between private, common, or public open types of open space: private, common, and public. A space, quantities required for each must be specified in the private open space is generally a small parcel of land located ordinance,as illustrated in the last provision above. immediately adjacent to an individual dwelling unit,owned While most PUD ordinances calculate the quantity of and maintained by its residents,and reserved exclusively for open space by applying flat percentage figures to project their use. In conventional development, private open space area, as in the above examples, authors of ordinances should be warned about the dangers of this approach. In is the traditional yard; however, newer housing styles in PUDs, such as patio homes, attached single-family struc- some situations, flat percentages may impose unrealistic tures, and quadraplexes, have required a more flexible open space requirements on a PUD project. For example,a definition. 50 per cent open space requirement may be unreasonable in Common open space is generally a larger parcel or some four-acre PUDs.In dense urban areas where land costs are higher, downward variations from basic standards may parcels of land reserved primarily for the leisure and recreational use of all the PUD residents and owned and be warranted. Several ordinances were reviewed which maintained in common by them, generally through a included sliding open space quantity scales related to homeowners' association. Common open space should be densities. Most of them reduced open space requirements as integrated throughout the PUD project, easily accessible to densities increased, reflecting the market realities of land all the residents. costs. On the other hand, some inner city PUDs may Public open space differs from common open space only demand higher amounts of open space where ratios of in terms of legal ownership. It is dedicated in fee to the children per family unit are expected to be higher. local governing body or one of its agencies and operated Therefore, where PUD ordinances must be written to deal and maintained by them. Public open space in a PUD is with a variety of urban and suburban environments, designed primarily for the use of residents of that particular provisions for variations in open space requirements,either development, but generally cannot be reserved for their up or down, should be included to coordinate the quantity exclusive use due to the nature of its ownership. required with the needs relevant to specific locations. No generally accepted guidelines exist to determine what However, simply designating required quantities is not sufficient to insure that the intent of open space require- It quantity of open space is adequate for different PUDs.The amounts required in ordinances vary considerably, ranging ments are fully met. Acceptable quality must also be specified. Quality standards must acknowledge the multiple from five per cent of gross project area to 50 per cent of nfunctions of open space: active recreation, passive recrea et project area. There appears to be no general consensus on appropriate quantities, although amounts in the 25 to tion, and preservation of natural site amenities. Usability is 40 per cent range appear to be the most common. the prime consideration when requiring open space for Most PUD ordinances calculate open spaces as percent- active and passive recreation activities. Approximately 34 ages or ratios of gross or net project area.The following are per cent of the planning agencies responding to the ASPO several typical examples of open space quantity require- survey defined the term "usable open space" in their PUD ments: ordinances. The most common dimensions of usable open i space include physical surface characteristics, dimension, Required open space shall comprise at least 40 per cent location,slope,and physical improvements. of the total gross area. Physical surface cbaracteristics. Many ordinances make a Not less than 50 per cent of the net area of the property distinction between land and water surfaces in usable open shall be open space devoted to planting, patios, walk- spaces. Most allow the inclusion of water surfaces in ways, and recreational areas,but excluding areas covered calculating open space amounts up to some undefined 30 proportion decided at the discretion of the review author- eluded the following provision: "At least one-half of the ity. Others limit water surfaces specifically in ordinance required open space shall have an overall finished grade not language_ For example: to exceed ten per cent_" Other ordinances are more approving agency may determine that all or part of Permissive, allowing slopes up to 20 and 30 per cent to be j l' Lm areas, bodies of water, and slopes in excess of 15 included in the usable open space. In all such cases, it will cent may be included as usable open space. In be necessary for the review authority to exercise some making this determination,the approving agency shall be discretion. Averages can be misleading, as small areas of excessive slope may be offset by larger level spaces. guided by the following factors. 1. The extent of these areas in relation to the area of It should be noted that some PUDs with serious physical the planned unit;and, site problems may cause headaches for the developer and j`< 2. The degree to which these areas contribute to the the review authority. For example, a site may contain land quality, livability,and amenity of the planned unit. that should be preserved for ecological reasons, but is not I. A minimum total area of ten (10) per cent of the gross usable, such as extremely steep slopes. To set aside open space of both kinds in the same development " residential area shall be set aside as Common Open may pose P 1 r Space. Of this ten (10) per cent,a maximum of one-half severe economic problems to the developer. The only way f1 may be areas covered by water. out of this dilemma—assuming the result conforms to acceptable site planning principles—is to measure permitted Rooftops are another physical surface characteristic density on a gross project area and in effect allow the which are sometimes included in open space calculations. density transfer to the buildable land. Of course,there may When allowed, they must be appropriately designed to be some sites on which micro densities are already so high comply with the intent of open space requirements and be that this solution is not an option. f accessible to potential users. Again, many ordinances Physical improvements. The term open space means what it says—space devoid of buildings and other physical choose to limit the extent to which such areas may be counted as open space. structures except where accessory to the provision of Landscaped roof areas devoted to recreational or lei- recreational opportunities. A surprising number of ordi- sure-time activities,freely accessible to residents, may be nances are vague about physical improvements in open counted as open space at a value of 60 per cent of actual spaces. Some even permit educational and religious struc- roof area devoted to these uses. tures to be built in the open spaces. Well designed decks on garages or accessory buildings A good PUD ordinance should clearly spell out what is g g rl' g and is not a legitimate physical improvement for inclusion '' may be credited up to one (lh)of the total required open space. To be well designed a deck must be in open space. Recreational facilities and accessory struc- tures are generally allowed, although some ordinances limit tional and aesthetic in the judgment of the Planning the proportion of the open space they may For and must be structurally safe and ade- y cover. or. ,mE example, one ordinance reviewed included the following quately surfaced and protected and usable for the purpose for which it is designed. requirement: �. Recreation facilities or structures and their accessory Dimension. In order to be functionally usable, open uses located in common recreation areas shall be space must exist in quantities of some minimum dimen- considered open space as long as total impervious Bions_ Situations have occurred in which quantity require- surfaces (paving, roofs, etc.) constitute no more than " ments have been fully complied with,but due to geographic five(5)per cent of the total open space. configuration of the open spaces, they were useless for active recreational pursuits. Dimensional standards in the Another example addresses this issue in more general terms: f' PUD ordinances reviewed ranged from as low as 400-square feet to 6,000-square feet and above. An example of one The buildings, structures, and improvements which are perm such provision states: itted in the common open space must be appropri The area of each parcel of open ; space to be used for active recreational use shall not be less ate to the uses which are authorized for the common than 6,000-square feet in area nor less than thirty(30)feet open space and must conserve and enhance the amenities in its smallest dimension.' Some ordinances also include of the common open space having regard to its topog- wording to the effect that some portion of open spaces raphy and unimproved condition. should be contiguous, rather than be scattered around the project in small bits and pieces. One ordinance further clarifies this point by listing exam- Location. It is undesirable to standardize the location of ples of what are and are not permissible improvements in usable open space within each PUD. However, it is open space_ important that usable open spaces be distributed more or A.Open Space includes: less equitably throughout projects in relation to the 1. Land area of the site not covered by buildings, dwelling units of the people they are intended to serve, parking structures, or accessory structures except especially in large PUDs. They must not be isolated in one recreational structures. (Underground parking and corner of a development, but highly accessible to all the decks may be counted as specified further in these residents. Large open spaces may be enhanced by walkway standards.) l :, it sy or greenways linking them to one another. 2. Land which is accessible and available to all � Some communities have been deprived of usable occupants of dwelling units for whose use the space is 3pc.. spaces by accepting dedication of land with excessive intended. {{'j l slope, which made it unusable for most recreational B.Open Space does not include: activities. As a result, some open space standards include 1. Proposed street rights of way. established slope limitations. One ordinance reviewed in- 2. Open parking areas and driveways for dwellings. r:k; 31. }i 3. School sites_ TABLE 9.Planners'and Developers'Preferences for the 4. Commercial areas, and the buildings, accessory Maintenance of Common Open Spaces and buildings, parking and loading facilities for these Recreational Facilities in PUDs commercial areas. 5. Unsuitable land as determined by specific criteria adopted by the Planning Commission. Per Cent of Per Cent of Property Should Be Planner Developer Natural amenities. One of the most important points Maintained By Respondents Respondents about open space is that it permits greater flexibility in preserving a site's natural amenities. PUD sites which Homeowners'association 59.4 65.1 contain some unique natural assets like unusual rock Developer 20.8 12.6 outcroppings, groves of trees, ravines, ponds, and stream Local government 11.3 14.3 beds can be greatly enhanced by retaining such natural Other 8.5 8.0 features in an undisturbed state. Often, open space stan- Total Responses 100.0 100.0 dards can assist in this function by allowing (or where significant natural features exist requiring that) certain play in maintaining a high quality residential environment, portions of the open space be left in an "unimproved" and out of a fear of having to assume those functions natural state. Some ordinances require that only a certain should an HOA fail, local governments must play some part portion of the total open space be usable, allowing or in their formation. The PUD review authority needs some encouraging the developer to leave the remainder undis- basic assurance that the HOA has a reasonable chance of turbed. Where significant natural amenities exist on the site, success and will be capable of performing its important provisions should allow the review authority the right to functions. enforce their preservation. Several developments treated in Planning agencies and private developers were asked to this manner were visited in our field research and were what extent local governments controlled the formation highly successful from the viewpoints of both the residents and operation of HOAs in PUDs. They responded that the and the developers. One example of ordinance language majority of local governments either retain review and permitting such treatment reads as follows: comment or approval powers over an HOA's bylaws and articles of incorporation. In addition, a number of local The remaining one-half of the required open space(i.e., governments retain the right to take over the functions of that not required to be improved to specific standards HOAs at the residents' expense should the organization for active recreational activities) may also be improved, collapse in. the future. A few even obtain voting member- or may be left in its natural state. Areas devoted to ships in HOAs as a means of retaining some control, natural or improved flood control channels and.those although this approach is not common. areas encumbered by flowage, floodway, or drainage PUD ordinances often include some provisions concern- of the total open space requirement. easements may be applied toward satisfying this portion ing the formation of HOAs,often with approval of the PUD conditional upon approval of the HOA.For example: Stronger language requiring the preservation of significant natural amenities might be more appropriately dealt with in Planned Unit Developments shall be approved subject to a separate section of the substantive design standards, the submission of a legal instrument or instruments rather than in the open space standards. However, open setting forth a plan or manner of permanent care and space provisions should be flexible enough to permit such maintenance of such open spaces,recreational areas,and features to remain. communally owned facilities. No such instrument shall The responsibilities for maintenance of open spaces in be acceptable until approved by the City Attorney as to PUDs can become a major concern even early in a project's legal form and effect,and the Planning Commission as to life and should be closely considered by the authors of PUD suitability for the proposed use of the open areas. ordinances. Private open spaces are maintained by their There are several important principles which should guide owners. In rental developments, they may be maintained by the formation of an HOA.Some ordinances include them as the developer or some professional maintenance company_ minimum requirements which the HOA must meet in order Public open spaces which are dedicated to governmental to receive approval. For example: bodies become their responsibility, but most of the concerns about maintenance center around common facili- If the Common Open Space is deeded to a Homes ties held in undivided ownership by the PUD residents. Association, the developer shall file a declaration of Both planners and developers were surveyed for their covenants and restrictions that will govern the associa- preferences among alternative arrangements for the owner- tion, to be submitted with the application for the ship and maintenance of commonly owned open spaces and preliminary approval. The provisions shall include, but recreational amenities. Table 9 illustrates their strong not be limited to,the following: preference for ownership and maintenance handled by a A.The homeowners' association must be set up before homeowners' association. Preferences in the "other" cate- the homes are sold. gory included dedication of the common open space to a B. Membership must be mandatory for each home buyer special service district, the retention of a professional and any successive buyer. management company by the homeowners'association,and C.The open space restrictions must be permanent, not various combinations of the previously listed alternatives. just for a period of years. Homeowners' associations. The most widely accepted D.The association must be responsible for liability (or) predominant technique for managing commonly insurance, local taxes, and the maintenance of recrea- owned property in PUDs is the homeowners' association tional and other facilities. (HOA). Because of the important role such organizations E_ Homeowners must pay their pro rata share of the 32 cost; the assessment levied by the association can development of common open spaces and form the basis become a lien on the property. for legal actions by homeowners to prevent infringements F.The association must be able to adjust the assessment on the open spaces. Ordinance requirements for restrictive i to meet changed needs_ covenants are generally quite simple_ er these principles are included as ordinance provi- Common open space shall be guaranteed by a restrictive as in the above example is a matter of local covenant describing the open space and its maintenance preference,although we would encourage it. and improvement running with the land for the benefit The HOA is best organized as a nonprofit corporation of residents of the Planned Unit Development or j with automatic membership in the association when prop- adjoining property owners or both. erty is purchased in the PUD. This should be specified in The developer must file in the office of the City Plan the covenants which run with the land, which bind all Commission, at the time the approved final subdivision subsequent owners. Covenants for maintenance assessments plat is filed, legal documents which will produce the f should also run with the land. It is important that aforesaid guarantees and, in particular, will provide for assessments be handled in covenant form rather than as restricting the use of common spaces for the designated articles of incorporation since the latter may be easily purposes. amended. Included in the maintenance covenants should be I procedures for changing them at stated intervals since All lands so conveyed (to the municipality or the HOA) 4. maintenance costs may change over time. Deeds can also shall be subject to the right of the grantee or grantees to mention the rights and responsibilities of property owners enforce maintenance and improvement of the common to HOAs. space. Assessments of property owners for maintenance fees In this kind of provision,the covenants may be enforced by may be based on several schemes.A common approach is to y PP all the parties to the agreement—the HOA, trustees, or charge a per lot fee with a statement made to the effect private landowners. that the lots assessed are those which appear on the original In a few states, this right of enforcement has been plat filed with the local government so that assembling extended to local government bodies. As an alternative, several lots does not change lot lines and proportionately some communities have adopted ordinances with clauses reduce fees. Some developers have chosen square footage as which reserve for local governments the right to enforce a basis of payment, while others have preferred fees as private restrictive covenants in the event that the parties to �. percentage of taxes, a system which is more sensitive to agreements fail to do so. Where enforcement rights are property values. In multifamily developments or condomin reserved in this manner, the local government has the right iums, fees are usually assessed on a per dwelling basis. All to step in and perform the functions of the HOA, passing o -lents must constitute a lien against a homeowner's the cost on to the defaulting homeowners as assessments y. Foreclosures may be instituted to collect de- against their property. A detailed provision to this effect payments. reads as follows: The developer is responsible for initiating formation of E the HOA—setting it up and supplying the bylaws and In the event that the organization established to own articles of incorporation—and this should be done prior to and maintain common open space, or any successor the sale of the first lot or house. As lots and houses are organization, shall at any time after establishment of the sold, control will gradually be vested in the homeowners, planned unit development fail to maintain the common but it is wise to include some provision insuring that open space in reasonable order and condition in accor- control is transferred to the homeowners at some future dance with the plan, the council may serve written point in time. Naturally, developers will want to retain notice upon such organization or upon the residents of control of common facilities and open spaces during the the plinned unit development setting forth the manner a,1 early marketing stages of the project until a sufficient in which the organization has failed to maintain the number of lots have been sold to assure a successful HOA. common open space in reasonable condition, and said Some even prefer to retain control until the last lot is sold, notice shall include a demand that such deficiencies of protecting their investment up to the last minute. (For maintenance be remedied within thirty days thereof,and further reading on HOAs,see the bibliography at the end of shall state the date and place of a hearing thereon which the report.) shall be held within fourteen days of the notice.At such Insuring open space integrity. Developers are well aware hearing the council may modify the terms of the original of the market realities of open spaces. Not only are they notice as to the deficiencies and may give an extension needed to meet recreational demands created in PUDs,but of time within which they shall be remedied. If the they are becoming essential from a marketing point of view. deficiencies set forth in the original notice or in the 1. For PUDs to retain their value and high amenity over the modifications thereof shall not be remedied within said II long run, these open spaces must maintain their integrity, thirty days or any extension therof, the city,in order to remaining genuinely open. PUD ordinances should include preserve the taxable values of the properties within the provisions which insure that open spaces cannot be devel- planned unit development and to prevent the common oped in the years ahead. open space from becoming a public nuisance, may enter j Sixty-five per cent of the PUD ordinances reviewed in upon said common open space and maintain the same 1 Ivey include provisions designed to guarantee that for a period of one year. Said entry and maintenance )aces remain that way. Such provisions take a variety shall not vest in the public any rights to use the common 4 o. -.,.ms.The most common is the restrictive covenant filed open space except when the same is voluntarily dedi- by the developer at the time of PUD final plan approval. Gated to the public by the owners_ Before the expiration Such covenants run with the land and are enforceable upon of the organization theretofore responsible for the all future residents of the PUD. They restrict the use and maintenance of the common open space, call a public 33 I; j' hearing upon notice to such organization, or to the 1. It may be conveyed to a public agency which will residents of the planned unit development,to be held by agree to maintain the common open space and any the council, at which hearing such organization or the buildings, structures, or improvements which have residents of the planned unit development shall show been placed on it. cause why such maintenance by the city shall not,at the 2_ It may be conveyed to trustees provided in an election of the council, continue for a succeeding year. indenture establishing an association or similar organi- If the council shall determine that such organization is zation for the maintenance of the planned develop- ready and able to maintain said common open space in ment. The common open space must be conveyed to reasonable condition, the council shall cease to maintain the trustees subject to covenants to be approved by said common open space at the end of said year. If the the plan commission which restrict the common open council shall determine that said organization is not space to the uses specified on the final development ready or willing or able to maintain the common open plan, and which provide for the maintenance of the space in a good, clean and safe condition the council common open space in a manner which assures its may, in its discretion, continue to maintain said space, continuing use for its intended purpose. subject to a similar hearing and determination in the B. No common open space may be put to any use not next succeeding year and in each year thereafter.. specified in the final development plan unless the final The cost of such maintenance by the city shall be development plan has been amended to permit that use assessed ratably against the properties within the under Section _of this ordinance. However,no change planned unit development that have a right of enjoy- of use authorized under Section _may be considered ment of the common open space and shall become a tax as a waiver of any of the covenants limiting the use of lien on said properties. The city at the time of entering common open space areas,and all rights to enforce these upon said common open space for the purpose of covenants against any use permitted under Section _ maintenance, shall file a notice of such lien in the office are expressly reserved. of the county recorder upon the properties affected by C. If the common open space is not conveyed to a public such lien within the planned unit development. agency, either one of the following methods of enforce- ment must be provided: While restrictive covenants are commonly used, private 1. The legal right to develop the common open space enforcement of open space covenants may not be sufficient for the uses not specified in the final development because covenants generally expire, either within a set time plan must be conveyed to a public agency. or by court action upon the showing of substantial change 2- The restrictions governing the use, improvement, in the conditions which originally inspired them. and maintenance of the common open space must be A safer method which is becoming increasingly popular stated as conditions to the conveyance of the is the conveyance of development rights to local govern- common open space, the fee title to the common merits. Using this method, the land remains in the undivi- open space to vest in a public agency in the event of a ded ownership of the PUD residents or their HOA. The substantial default in the stated conditions. property is held for the exclusive use of the residents, and D. If the common open space is not conveyed to a the HOA is fully responsible for its maintenance. However, public Agency,the covenants governing the use, improve- the rights to develop the property are conveyed and ment, and maintenance of the common open space may therefore owned by the local government. This leaves the authorize a public agency to enforce their provisions. residents and the HOA only the right to use the land as specified in the final development plan.Another advantage Environmental Design of this approach is the greater likelihood of a more The PUD concept presents a very real opportunity for favorable tax assessment due to the greater assurances that incorporating environmental design considerations into the open spaces will remain open and undeveloped. Examples land development process. The increased flexibility avail- of two ordinance provisions conveying development rights able through PUD both allows and encourages development follow: which is more sensitive to the natural surroundings. As a Approval of such open spaces by the Planning Commis- result of changing public and professional attitudes toward sion shall be expressly conditioned upon a conveyance the environment, natural features are being increasingly by the developer to the City of the development rights, viewed as assets which enhance site design and project or the right to prohibit the construction of additional amenity, rather than as obstacles which must be bulldozed buildings or other rights necessary to achieve the away. purposes set forth in this ordinance. Both planning agencies and the general public have In all areas proposed as homeowner parks where the begun to demand increased sensitivity to environmental advantages of the Planned Unit Development approach concerns. Over 60 per cent of the developers surveyed are used, the developer must convey to the City the stated that environmental design questions had been major "development rights" (i.e., recreational and open space issues in the approval of their PUD projects. Developers easement) and must meet the requirements of the stated that trees, topography, ground cover, and natural Planning Commission as to shape,size,and location. terrain are being given much higher priorities than ever Rather than offering any one particular scheme for before,and some even stated that these issues could only be guaranteeing open space, some ordinances permit a choice dealt with effectively through the PUD process. Several from several alternatives. developers said that good environmental design is a major selling point to the housing consumer,and it has become an A.All land shown on the final development plan as important promotional tool. It is also a major selling point common open space must be conveyed under one of the with PUD review authorities. Several developers com- following options: mented that their track record in the PUD approval process 34 • ; Y S< d 2�' -k i qty« . r � a p {ice i<��{'�• �,. � � 1 h f 1 4: oil I Almost half of the PUD ordinances surveyed had environmental design provisions;in other cases the issue was treated during the review process. had improved as a result of greater attention to environ- Another ordinance required a full inventory of the natural mental design, and some have voluntarily included ecologi- features of the site, including all trees above a certain cal reports and impact statements along with their PUD minimum size. As a result,developer-community relations have been J r antially improved. Existing trees shall be preserved wherever possible. The location of trees must be considered when planning the Most environmental design activity in PUD regulations underground s location of buildings,ace en space, g , j has taken the form of preserving natural site amenities or common opIII minimizing the disturbance to the natural environment_ A services, walks, paved area, playgrounds, parking areas, N� few of the requirements have come from the traditional site and finished grade levels. j preparation considerations such as soil characteristics, The Board shall inquire into the means whereby trees topography, hydrology and drainage, etc. However, these and other natural features will be protected during items should be routinely addressed in conjunction with all construction. Excessive site clearing of top soil, trees, types of development, and are usually contained in some and natural features before the commencement of other ordinance provision or regulatory device. building operations will be discouraged by the Board. Approximately half of the PUD ordinances reviewed (i Some agencies are requiring the submission of a modi- contained provisions specifically addressing environmental fied environmental impact statement by the developer for design issues, the most common of which were soil suitability and the preservation of topography, trees and each PUD project reviewed. Others have ordinance provi- ground cover, natural bodies of water,and other significant sions dealing with bodies of water, flood plains, and grading. Some examples of environmental design criteria in natural features. In other cases where ordinances did not PUD ordinances include the following: contain such provisions, many planners responded that environmental design considerations were raised during the The preservation of trees, groves, waterways, scenic review process anyway. While this is better than no points, historic spots, and other community assets and consideration, PUD ordinances should include such provi- landmarks. I. sions as a matter of routine. r Require all flood plains as delineated in the county flood Techniques to incorporate environmental design consid- survey to he preserved as permanent common open erations into the PUD process vary. A detailed landscaping space. plan is the most common method used. One ordinance provision reads as follows: Require a "grading plan" which will confine excavation, earth moving procedures, and other changes to the �. A general landscaping plan shall be required at the time landscape in order to insure preservation and prevent initial submission to be followed by a detailed despoilation of the character of the area to be retained .dscaping plan, once the site plan has been approved, as common open space. showing the spacing, sizes, and specific types of land- scaping material. Hillside areas require special environmental design con- I, sideration. Erosion and grading must be held to a minimum. Another ordinance went so far as to require that the Drainage problems and slope stability must be dealt with, removal of trees be approved by the planning commission. and views and vistas should also be protected. This may �• li 1 35 L - mean significant alteration in design standards for areas of Reducing the built-up area or increasing the impervious higher than normal slopes.One ordinance adequately stated surface ratio of hillside areas may also be achieved by the problem: tightening density requirements in areas of excessive slopes. _ Hillside development requires special planning on the Some ordinances include slope computations in the calcula- part of planning commissions and land developers. tion of PUD densities, with the resultant effect being the Special treatment for streets and building sites is needed greater the slope the lower the density allowed. Care should to preserve natural terrain, trees, rock formations, and be taken with this approach to assure that the impervious other features such as views. Inflexible imposition on surface ratio is, in fact, improved through tighter density hillside developments of subdivision regulations designed requirements. As mentioned in the discussion on open for flat land often makes land development so expensive space,density transfer schemes should be considered. that steep land is by-passed or developed improperly. Where manmade slopes occur as a result of road cuts or Developers of these special tracts, usually in areas of low the grading of housing sites, special treatment should be density, need leeway in the matter of lot size,lot shapes, required through erosion control provisions. frontages, rights-of-way, street widths, easements, and All manufactured slopes,other than those constructed in setbacks. In such developments the most informal rock, shall be planted or otherwise protected from the development consistent with principles of good access, effects of storm runoff erosion and shall be of a proper drainage,and moderate maintenance costs should character so as to cause the slope to blend with the be allowed. Steep topography frequently necessitates surrounding terrain and development. The developer unusually deep or unusually shallow lots or narrow shall provide for maintenance of the planting until frontages. growth is established. Some planning agencies require special site evaluations for This ordinance goes on to classify land in a "hillside hillside areas to report on the geological hazards of the category" if "85 per cent of the land has a natural slope proposed development and any potential drainage prob- greater than 20 per cent." Areas classified in the hillside lems. These evaluations must be conducted by a qualified category are noted on the preliminary development plan geologist or licensed engineer. One ordinance included a and reviewed with special attention given to erosion control special hillside conservation district for areas of excessive and the design of roadways. slope. Erosion is a major problem in hillside development. Design standards for streets in hillside areas may also be Topsoil loss and downstream silting often occur. Slope included in PUD ordinances, or contained in some other j stability may be endangered by alterations to the natural regulation and cross referenced in the PUD ordinance. subsurface drainage systems. Leaving as much of hillside These standards should follow such principles as the parallel areas in their natural state as possible is a common and alignment of streets and drives to contours, preservation of sound approach to solving these problems. This means no the natural topography as much as possible (especially clearing, cutting, or filling, or other substantial changes in where traversing steep slopes), and grading by half-fill and the natural conditions of the slopes. One ordinance used half-cut methods as opposed to all fill or all cut. Other average slope figures to compute the amount of land area street standards may have to be reduced for hillside which must be left in its natural state. development, such as horizontal and vertical curves, angles Average slope will be determined by a formula: or intersections, and widths of road and cul-de-sac rights- of-way. On the other hand, maximum tolerances for such A S=0.0 IL S-average slope, per cent items as road grades may merit increases. L-contour length in A I -contour interval feet Environmental design standards in PUD ordinances are feet still in their infancy, but there is much encouraging A-parcel area in acres(excluding evidence that their level of sophistication is rising. The the land with slope greater than treeless, barren subdivision of the past could be on its way i 35 per cent) out. The following table shows the minimum portions for various average slopes: Traffic Circulation Many PUD ordinances include several short provisions setting forth principles or standards for traffic circulation. TABLE 10 Both external and internal circulation systems must be considered. Externally,adjacent street systems and intersec- tions must be adequate to handle the new traffic generated Minimum Portion of land by the PUD. if densities in a PUD are higher than in Failing Within Each Slope surrounding development, review authorities must be care- Classification to Remain in ful to avoid overloading existing facilities beyond their Natural State or be Developed Solely for designed capacity. Some improvements may be necessary in Slope Class cation Recreational Purposes external street networks, especially at major points of (Average Pecentage Slope) (Per cent) ingress and egress, and around PUD commercial facilities. Points of ingress and egress should be designed to discour- 10.0-14.9 25 age through traffic on minor streets in the PUD. Internal 15.0-19-9 40 collector streets should be coordinated with existing exter- 20.0-24.9 55 nal systems, providing for the efficient flow of traffic into 25.0-29.9 70 30.0-and above 85 and out of the PUD.Two examples of ordinance provisions addressing these types of issues follow: 36 4 Principal vehicular access points shall be designed to together through a well-integrated network of streets and permit smooth traffic flow with controlled turning paths_ movements and minimum hazards to vehicular or pedes- Some ordinances require pedestrian access to nonresi- trian traffic. Minor streets within PUDs shall not be dential facilities via pathway systems. One ordinance -inected to streets outside the development in such a reviewed included the following requirement: I as to encourage their use by through traffic. At least 30 per cent of the dwelling units in the Planned fhe proposed RPD District is so located with regard to Residential Development area shall have access to major thoroughfares and uses outside the District that commercial areas by pedestrian paths suitable for use in traffic congestion will not be created by the proposed all weather. Such access shall not involve the crossing of : development or will be obviated by presently projected any street serving more than ten(10) dwelling units, nor improvements and that uses adjacent to such thorough- an collector or primary street. P 1 g Y P Y ;�- fares will not be adversely affected. All nonresidential land uses within a PUD should have R direct access to a collector or primary street, especially The design of internal circulation systems must be P Y P Y sensitive to such points of safety, convenience, access to where large parking areas are included. 1 dwelling units and nonresidential facilities, separation of vehicular and pedestrian-bicycle traffic, and general attrac- ` tiveness. Internal streets must be adequate to carry antici- Private opens Streets pated traffic loads. They should discourage through traffic Developers occasionally propose private residential streets in their PUDs.The main incentive is the reduction in within the PUD as much as possible, and yet provide ` convenient and safe access to dwelling units. Access for development costs possible where allowable standards for private streets are lower than those required of public emergency vehicles must also be considered. This is streets, or where private street standards do not exist at all. especially important in PUDs since innovative site designs ly' may not allow each dwelling unit immediate access to the Also, more design innovation may be possible when conventional street standards do not have to be met. vehicular traffic system. Some ordinances contain require- ments specifying the distance at which dwelling units may In the past, some local governments have viewed private be located from access points and even require walkways in streets with favor in hopes of being relieved of the between. responsibilities for their maintenance and upkeep. However, ! : more recent experiences seem to have changed this notion. A part of every residential building shall not be farther To many local governments, private streets have become an than sixty (60) feet from an access roadway or drive administrative headache, sometimes even a serious liability. providing vehicular access from a public street, and not Since private streets are being included in PUDs with `grther than five hundred(500)feet, measured along the increasing frequency, it is important that two basic issues 4' ite of vehicular access,from a public street. be understood. The first regards development standards. Street standards are purely a question of physical design mattes without adequate access to collector and primary and should be based upon sound design criteria relating streets will require a lower density than sites with good access. The number of dwelling units, number of streets such factors as anticipated traffic loads—traffic volume, j vehicle weight, speed, emergency vehicle size, turning to which access is available, number and spacing of access points, types of streets, and general site consider radius—to the types of development the streets serve— i. ations must all be taken into consideration in de[ermin- single family residential, multifamily residential, commer- cial.the quality of access. tial. Obviously, all streets must be designed to standards high enough to accommodate their anticipated uses,regard- Pedestrian and bicycle path systems are becoming more less of whether they are public or private. common in PUDs and should be encouraged.They increase The second issue regards legal ownership of the streets the total amenity and provide alternative modes of internal and should be considered apart from the question of !: circulation. They are also very adaptable to open space physical design standards. Legal ownership carries with it networks. The most important design consideration for the responsibility of perpetual maintenance. Private streets pedestrian and bicycle paths is segregation from vehicular are owned and maintained by the abutting property owners traffic,especially at intersections. Street crossings should be and other persons to whom the streets provide access. held to a minimum and pedestrian over and under-passes Generally a homeowners' association or some other type of ' should be encouraged, especially at points of highest maintenance entity (which may also be responsible for the conflict, near schools and playgrounds.For example: management of other commonly owned property within I!; the PUD) conducts the maintenance function for private The pedestrian circulation system and its related walk �j streets. Such an organization is financed by the assessment ways shall be insulated completely and as reasonably as i; of fees to the members of the homeowners'association. All possible from the vehicular street system in order to future repair and maintenance costs of the private streets, provide separation of pedestrian and vehicular move mens. This shall include, when deemed to be necessary including reconstruction when necessary,must be borne by th by the Plan Commission, pedestrian underpass or over- e homeowners who are a party to the agreement. Sixty-eight per cent of the planning agencies responding pass in the vicinity of schools, playgrounds, local to the survey had processed PUDs with private streets. shopping areas, and other neighborhood uses which Respondents were also asked to comment on any problems enerate a considerable amount of pedestrian traffic. which they had encountered with private streets in PUDs. Their most common complaint was that private streets were Traffic systems should be innovative and functional. They built to lower standards than public streets.As a result,the should not break up the development unnecessarily, but incidence of repair was higher, and the streets were not rather they should unify its various.elements by tying them always adequate to serve their intended functions. Nor- 37 malty, such problems would not affect local governments street standards are already in tune with new design since the responsibility for private streets rests with the concepts and contain some built-in flexibility. homeowners. However, where there have been problems An approach more in keeping with the concept of PUD with private streets, homeowners have often called city hall, would allow the review authorities a measure of discretion expecting the city to provide routine maintenance services, by permitting private streets to vary from existing standards not fully realizing that they had purchased a street along where substantial justification could be shown by the with their house. Some planners cited misunderstandings developer. This places a heavier burden of responsibility regarding the right or responsibility of local governments to upon the review authority and requires that they possess discharge normal public functions over private streets,such the expertise necessary to make such judgments. Three as garbage pickup, police and fire protection, and snow ordinance examples with this flexibility follow: removal. There seems to be some confusion over what Private streets and drives need not meet the require- routine public services governments are required to provide ments of this Code which would otherwise be applicable via private streets. In a few cases, substandard private streets restricted the normal ingress and egress of emer- if the Planning Commission, after recommendation of the Fire Chief, Chief of Police, and Director of Public gency vehicles in large PUDs. As a result of such problems, Forks, finds that the design of the proposed streets and many local governments have been asked to take over common vehicular ways is adequate to protect the private streets, and many have done so. public health, safety, and welfare and will promote the Planners expressed widespread fears about the present and future ability of homeowners' associations to continue purposes and intent of this Division. to pay the maintenance costs for private streets. Whether Streets in a Planned Development may be dedicated to future PUD residents will be willing and able to pay for public use or may be retained under private ownership. private streets is a serious question. Such fears have been They shall be constructed in accordance with standards sustained by the foreclosure of some homeowners'associa- required by the-County Subdivision Regulations, as tions in the face of rising maintenance costs, as well as amended, for typical lots in the UR-1 zone or as associated administrative problems. When such foreclosures otherwise specified in the conditional use permit. have occurred, local governments have often been faced The Board may therefore waive or modify the specifica- with the acceptance of substandard private streets into their tions otherwise applicable for a particular public facility public street systems.This places disproportionate financial where the Board finds that such specifications are not burdens on the total taxpaying population. required in the interest of the residents of the planned While they generally stand to gain more than they stand residential development and that the modifications of to lose, developers are faced with two major problems with private streets in their PUDs. First,they are responsible for such specifications are consistent with the interests of the entire Township. Proposed specifications and stan- the streets until they transfer legal ownership to a home- dards which are inconsistent with those required under owners' association or some other maintenance entity. In the prevailing Township ordinances shall be termed the case of large PUDs where sales may be staggered over acceptable upon approval by the Board. relatively long periods of time, this could mean mainte- nance responsibility for several months, even years. Se- Of course, if sound physical design criteria form the basis i condly, they are faced with the problem of seeing that a for exceptions to public street standards,there is no reason j viable maintenance entity is established to take over the not to allow such deviations for public streets in PVDs as streets when the proper time comes. well.One ordinance took this approach: There is nothing inherently wrong with private streets as long as regulations are designed to protect the interests of Standards of design and construction for roadways,both all parties involved_ Many of the problems previously cited public and private, within planned residential develop- stem from inadequate regulations and poor public adminis- ment districts may be modified as is deemed appropriate i by the City Council. Right-of-way width and street tration. Where public street standards are more excessive . than necessary to service new PUDs,there needs to be some roadway widths may be reduced as deemed appropriate by the City Council,especially where it is found that the system for making exceptions. ; plan for the PUD provides for the separation of vehicular Several alternatives are available to local governments. The simplest method is to flatly forbid private streets; and pedestrian circulation patterns and provides for another is to allow private streets in a PUD on the adequate off-street parking facilities. condition that they be built to the'same standards applied The above citation allows for a high degree of flexibility to streets acceptable for public dedication. This approach and encourages a departure from traditional subdivision assures the homeowner of street quality consistent with design. It also recognizes the distinction between physical that of the municipality in general. There should be no design standards and legal ownership. Under the above .questions about hinderances to the delivery of public provision, PUD street systems may be designed to the limit services due to physical design. Also local governments are of the developer's creative ability, regardless of whether assured that the streets will be up to par should they have they are publicly or privately owned. The only design to assume ownership for them in the future. However, both limitation is their adequacy to provide the anticipated of these provisions seem unnecessarily rigid. service required. Innovations in site design may warrant deviations from Confusion over the legal responsibilities of local govern- conventional street standards, and developers should be ments to provide public services via private streets as well as afforded these options where justified. While the second their right of access to do so should be relatively easy to approach mentioned above does allow for private streets in clear up. An outline or list of the details regarding the rights the legal sense, it makes no allowance for design flexibility. and responsibilities of the parties involved within the Such an approach could only be warranted where public ordinance should suffice. Such a list might spell out in 38 i detail both the homeowners' and the local government's TABLE 12.Minimum Width Between Curbs E rights and responsibilities for maintaining certain facilities and providing basic public services. Public utility rights-of- must be clarified when the private street system would Parking Parking s No Parking One Side Both Sides iced for such things as sewer and water lines. One (Fen) (Feet) (Feet) r,roach is to require that the private streets be dedicated to local governments as utility easements. One-way There is also an important point which is sometimes s14 20 28 overlooked regarding net density calculations. It is impor- tant that ordinances be clear and consistent on the relationship of net density calculations to private streets,as frequently cited. First, excessive right-of-way widths that reduced private street widths may otherwise result in higher come from an era of urban development characterized by net densities than originally anticipated. Also, as an added gridiron street patterns. No city engineer knew what was to �f protection to local government in the future, some ordi- become a collector or a major street and therefore all nances include provisions stating the conditions under streets should be wide just in case. Second, and perhaps which local governments will accept private streets into the based on the first point, pavement widths and thicknesses public street system.For example: must accommodate heavy truck and commercial traffic. ;l If the owners in the future should request that the From time to time articles published in House and Home private streets be changed to public streets, the owners or by the Urban Land Institute—see The Community do fully agree that, before acceptance of such streets by Builders Handbook, Executive Edition—call for a new look �! at standards. At the time this study was going to press the a local government body, the owners will bear full ilders Research Founda- tion H iati al Association con oomeu1 expense of reconstruction or any other action necessary Na tion had published an interim draft of A Manual of to make the streets fully conform to the requirements j applicable at that time for public streets, prior to Residential Street Development Standards, which argues I that standards should be based on the concept of average dedication and acceptance. Finally, the owners t� daily traffic. Table 13 on page 40 is a summary of the agree that these streets shall be dedicated to public use 's recommendations. without compensation to the owners and without the study owners' expenses in making such streets conform to the Resolving the technical debates in specific terms is requirements applicable at that time for public streets,if beyond the scope of this report. Clearly, however, local ; at some future date, a local governing body so requests. planning agencies should be careful yet have open minds toward the acceptance of new street standards in PUDs. U' is not the intent of this report to present a full The specific standards quoted here show clearly that efforts .fission of the design standards for residential streets. are underway to base measurements on performance However, several examples of the private street standards characteristics. We suspect in the very near future there will currently used in PUD ordinances may be helpful. Like be enough ferment and reexamination going on that there other design standards, they vary from place to place, but will emerge widely accepted national standards for private one set of street standards reviewed contained several and limited service streets. standards which were dependent upon the type of street and the number of dwelling units it was intended to serve: Parking Standards ' Determining PUD parking standards requires no basic ? departure from traditional approaches. Many PUD ordi- TABLE 11 nances simply require conformance with conventional requirements located in another part of the ordinance. Some ordinances, though, permit variations from these Required Footage conventional requirements where justified by the developer. Type of Street Uses Saved Row Pavement With mixed housing types, varied demands for parking space may occur. Ordinances should be flexible enough to Residential dead end 1 -6 dwellings 30 18 permit an appropriate response by the review authority. or local street 7-20 dwellings 40 24 Aside from the issue of quantity, parking standards in 21 -50 swellings 50 30 PUD ordinances should deal with the location and design of Residential collector 51-200 dwellings 60 i6 facilities. For example, as a result of the variation in PUD site design, some ordinances specify the allowable distances Neighborhood over 200 dwelling or 60 that parking areas can be located from dwelling units.Other collector any commercial use common requirements deal in general terms with the landscaping and screening of parking areas. Some ordi- nances go a step further by attempting to legislate the See Table 12 for some additional private street standards_ specific type of landscaping in open parking areas by specifying the ratio of planting area to total parking area. —he question of adequate, yet not clearly excessive and Landscaping of parking areas could be handled at the ore wasteful, street standards in PUDs begs the discretion of the review authority rather than being .ion of appropriate street standards for all new included in ordinance provisions. However, it is an impor- residential areas, whether or not planned as PUDs, and tant part of project amenity and should not be overlooked. whether or not streets are public or private. Mounting The following is a set of PUD parking standards which critisism in recent years leads us to believe that standards in address both the quantity required and the design treat- many jurisdictions are often excessive. Two examples are ment of the spaces: 39 A. For each dwelling unit, there shall be off-street proposed PUD from potentially adverse influences gene- parking spaces consisting of not less than 200-square feet rated by it and to protect the PUD from any potentially each. adverse surrounding influences. In practice, perimeter B. Parking areas shall be arranged so as to prevent requirements are too often based on the assumption that through traffic to other parking areas. there is something inherently wrong with PUDs(or any new C. Parking areas shall be screened from adjacent struc- development), and such requirements are primarily used to tures, roads, and traffic arteries with hedges, dense screen off new development from established areas. planting,earth berms, changes in grade or walls. The opposition to PUDs (or any form of development D.No more than 15 parking spaces shall be permitted in for that matter) from adjacent established neighborhoods, a continuous row without being interrupted by land- especially single-family neighborhoods, requires that Perim- scaping. eters be adequately considered in the review process. When E. No more than 60 parking spaces shall be accommo- PUDs are proposed for redevelopment of vacant parcels in dated in any single parking area. built-up areas, care must be taken to harmonize the scale, F.All streets and any off-street loading area shall be setback,and mass with existing adjacent development. paved, and the design thereof approved by the Board. The wide variety of natural and manmade site character- All areas shall be marked so as to provide for orderly and istics make perimeter requirements difficult to draft. The safe loading, parking,and storage. individuality of various PUD sites demands some flexibility G.Parking for nonresidential purposes shall be provided if regulations are to be relevant. For example, large appropriate to the type of nonresidential use,as deemed perimeter setback requirements may be inefficient or adequate to the Board. wasteful in small PUD sites and possibly even negate H.All parking areas shall be adequately lighted.All such creative design alternatives.Although high-rise development lighting shall be so arranged as to direct the light away is sometimes considered undersirable adjacent to a single- from adjoining residences. family development, the topographic features of some sites 1. All parking areas and off-street loading areas shall be may permit them without hurting either party. graded and drained so as to dispose of all surface water Only 38.5 per cent of the PUD ordinances surveyed without erosion,flooding,and other inconveniences. included perimeter requirements. Of these, most dealt primarily with relating PUD structures to structures on j PUD Perimeters adjacent properties, and relating PUD land uses to adjacent An important design element in any PUD is the land uses. Of the developers surveyed, 42.9 per cent said treatment of the perimeter or edge of the development.In that PUD perimeters caused specific design problems, theory, perimeter requirements are necessary to protect primarily in coordinating densities and land uses. existing or anticipated future development adjacent to a Setback requirements are a commonly used technique TABLE 13.Residential Street Design Standards Summary Proposed by NAHB Research Foundation Study(Interim) 1973 Street Description Place Lane Subcollector Collector Arterial* Service V.Light Light L.Traffic Local and Thru Thru Traffic(ADT)t 0-75 75-200 200-1,000 1,000-3,000 3,000+ Pavement Width2 No parking 16 18 20 28 Parking one side 18 18 26 36 Parking two sides 26 26 36 40 R of W Width3 24'-30' 24'-30' 44'-50' 44'-60' Sidewalks4 None None One or both One or both Provision for widenings No No No Yes Street Slope6 0.5 per cent- 0.5 per cent- 0.5 per cent- 0.5 per cent- 22 per cent 22 per cent 10 per cent 8 per cent Sight Distance 75' 125' 250' 350' Maldmum Speed 15 20 25 35 t ` Arterial streets are usually designed and constructed by state highway departments and are designed to accommodate specific traffic, weather,and other factors. I ADT (Average Daily Traffic) is used as a measure of the number of vehicles using a road during an average 24-hour period,but does not account for the peak load period.Design Hourly Volume(DH V)which considers peak loads,would be a better measure for that purpose. 2 Values shown are typical_Local conditions may require variations in pavement widths. 3 Values shown are typical.Local climate conditions may require some variation. Lack of specific requirements may make sidewalks on one or both sides of subcollectors and collectors unnecessary. Requirement of future widening should be assessed during the early design stages and based on total and potential development of the area. 6 Values shown are typical.Topographic and climate conditions may require variations. 40 for dealing with PUD boundaries. Ordinances using this tricts" or a "low-density residential use district." In using approach generally require that all perimeter development such a requirement, though, drafters of ordinances should meet the same setback regulations as those of the adjacent decide whether or not the buffer zone will be included in zoning district. This approach is best suited to cases where any open space requirements for PUDs. - ,)sed PUD development is similar in character to Still other approaches have been used. Some ordinances g adjacent development_ However, such a require- require the use of screening—natural or manmade—to is insensitive to situations where contrasting develop- protect the PUD and/or existing adjacent development ment types and housing styles will exist side by side. from the adverse effects of light and noise and to guard Different style dwelling units may not be compatible with privacy and amenity. Occasionally such screening is re- the setbacks prescribed for adjacent zones; further, even quired to be of a permanent nature and even sight proof that setback may not always be sufficient. For example, Screening is also used to guard against adverse views from large multifamily units lying near the perimeter of a PUD "existing or potential first-floor residential windows," in may require a greater amount of setback from the PUD the PUD or adjoining residential districts. boundary, or some different treatment, in order to protect It is important that regulations remain flexible so they adjacent development from presumed adverse influences. can adjust to conditions where site characteristics such as One ordinance wen[ so far as to require that the perimeter terrain or topography may make such screening impractical of the PUD "be planned and developed for uses permitted or unnecessary. An example of such flexibility is contained in the adjoining residential district and in accordance with in the following provision: all other requirements for such districts." We might expect this kind of reasoning to produce a mixed development of If topographical or other barriers within_ feet of the patio homes and garden apartments sealed off by a tight perimeter of the development do not provide reasonable i wall of single-family ranch houses.This kind of provision is privacy for existing uses adjacent to the development,the planning commission shall impose either of the a good example of an overly protective ordinance favorable following requirements,or both: to PUDs as long as they don't stir up the local citizens.The authors seem to forget that PUD is a favorable alternative k to conventional development, not something which should A. Structures located on the perimeter of the develop- i ment must be setback in accordance with the provisions be hidden from public view. A more intelligent approach is to relate perimeter of the zoning ordinance controlling the area within requirements to particular development characteristics Which the development is situated;and, , which might be incompatible with adjacent development. B•Structures located on the perimeter of the develop- which Pa 1 The following ordinance provision does this for one ment must be well screened in a manner which is particular characteristic,building height: approved by the Commission. each foot of building height over thirty-five (35) Perimeter land uses should also be considered in terms of ^: potential adverse effects. For example, special attention t in zones 6, 7, 7a, 8, the distance between such �,. should be given to the siting of recreational areas and buildings and the front, side, and/or rear property lines commercial facilities within PUDs, so that they do not only on the perimeter of a Planned Unit Development project shall be increased one(1)foot in addition to the adversely affect adjacent land uses.One ordinance included front, side, and/or rear yards required in the district, the following provision: "No intensive recreational or commercial use shall be permitted within 150 feet of the provided that this additional setback shall not be P ,•J considered part of the side or rear yards. boundary of any adjacent residential district." The ordinance provisions discussed above reflect the fear An alternative to the standard setback approach is to PP many communities have of new development forms.Perim- require a buffer zone of a prescribed dimension,often with eter regulations have been largely aimed at protecting landscaping and/or screening: Two examples of such single-family neighborhoods adjacent to new PUDs. This is requirements follow: a valid concern, since some poor PUDs have been built in Where the Planned Residential District abuts another the past,and real problems have resulted.At the same time, Residential District a permanent open space at least however, communities should not adopt new development twenty-five (25) feet wide shall be provided along the concepts and then water them down to match what already property fine, shall be maintained in landscaping,and no exists. driveway or off-street parking shall be permitted in such area. Nonresidential Development That there is an appropriate relationship to the sur- Over 70 per cent of the planning agencies surveyed had rounding area and there must be a minimum 30-foot ordinances which allowed mixed land uses or land uses accessory to residential uses in their PUDs. The guiding buffer zone in any planned unit of multifamily or nonresidential buildings or structures that is adjacent to principle of most of these ordinances for nonresidential a low-density residential use district. The buffer zone development is that it be for the express service and must be kept free of buildings or structures and must be convenience of the residents of the PUD and their guests lActual need for the accessory uses must be generated by landscaped, screened, or protected by natural features, rn that adverse effects on surrounding areas are mini- the new development itself. Many ordinances specify that ,d such development be primarily for the PUD residents, although some ordinances further specify the exclusive use two provisions are important because they protect of the residents. the integrity of the buffer zone, requiring that it remain If this is as far as local ordinance drafters go, we can undeveloped. They also relate the buffer requirement to a predict trouble. Determining whether or not nonresidential, particular type of adjacent development, "residential dis- and especially commercial,uses are accessory to a proposed 41 PUD can be determined by requiring a market study by the the public hearingto show that such uses beyond a developer. If the commercial uses are accessory there reasonable doubt will primarily serve persons residing should not be any regulatory problem. If proposed com- outside the development. _ mercial facilities are to serve a larger market, then the jurisdiction ought to address three separate issues: (1)Does Typically, ordinance language dealing with noncommercial, the community's plan for commercial areas call for such nonresidential development places the burden of need test uses in this general area? (The residential portion of the upon the challengers rather than the developer. proposed PUD is to some extent irrelevant to this ques- The reverse is true for commercial development, how- s tion.) If there is disagreement between plan and market ever. Many PUD ordinances place the burden upon the developer to demonstrate that nonresidential uses of a study, one or both may _need reexamination. If it is determined that such a commercial area is appropriate, it commercial character are intended to serve principally the I development. Some ordinances develoroh f idents othe could perhaps be processed as a separate commercial PUD, resproposed P f but in-conjunction with the residential one. (2)How well is require that the developer establish specific economic need the residential portion of the PUD planned?(3)How do the for commercial facilities: ". . .that any proposed commer- j developments relate to each other? The opportunities to cial development can be justified economically at the relate the two developments is far greater than if each were locations proposed to provide for adequate commercial being built separately,by different developers. facilities of the types proposed." We believe that if this procedure, or a variation of it, In some cases, especially where medium to large PUDs were followed, we would see a healthy decrease in phony are proposed for transitional areas,a formal market analysis posturing and arguing(e.g.,"Does the developer really want can be required. One ordinance contained the following to build the whole PUD,or just the commercial part of it?" provisions: Or, "Let's see now;will they accept the commercial part if The amount of area and type of commercial facilities to we throw in some apartments and townhouses?") Even so, be allowed in an RPD, if requested by the developer, the phasing and timing of each type of development may be shall be based on the market analysis required in Section completely appropriate. (See the previous discussion on _ of the Zoning Ordinance. The market analysis shall j phasing.) be prepared and signed by a market analyst and shall be The remainder of this discussion, then, deals with critically reviewed by the Planning Department staff. nonresidential uses which are usually accessory. The staff shall prepare a written report concerning the As a site planning principle nonresidential development market analysis to the Architectural and Site Approval should be integrated into the total design of the project, Committee to be transmitted to the Planning Commis- whether located within it or at the edges. It should sion for the Public Hearing. complement surrounding residential development and blend into the total scheme avoiding a harsh contrast to its The market analysis shall demonstrate that the amount i surroundings,either in design or in its activity effects. of land proposed is needed for, and can realistically be Nonresidential uses common to PUDs include education, supported-in, commercial use. For these purposes such religious, and recreational facilities as well as commercial, market analysis shall contain the following determina- office, and professional land uses. Some ordinances present tions: a list of specific accessory uses acceptable in any PUD. A A. Determination of the trade area of the proposed commercial facilities, more common approach is to allow only commercial and B. Determination of the trade area population, present accessory uses permitted in the most restrictive commercial and prospective, districts in the zoning ordinance presumably because these C. Determination of the effective bugower in such districts are normally for neighborhood or convenience ym p .trade area, shopping. Others permit accessory nonresidential uses D. Determination of net potential customer buying specific to the particular PUD in question based solely on power for stores in the proposed commercial facilities administrative discretion. For example: and, on such basis, the recommended store types and Nonresidential uses, limited to those specifically ap- store floor areas, proved by the Plan Commission, are permitted in a E. Determination of the residual amount of buying Planned Unit Development provided that such uses power in the trade area and how it may be expected to primarily are for the service and convenience of the be expanded in other business areas serving the trade residents of the development. area_ 4 Controls are generally tighter over drive-in commercial establishments due to their potential for traffic generation. These are several techniques for regulating the quantity Standards for nonresidential development in PUDs of commercial development_ Establishing a ratio of com- should address several major issues. One is the quantity of mercial to residential development is a common one, such development permitted. Accessory uses such as reli- usually in terms of gross square feet of floor area or land gious, educational, and recreational facilities are generally area, and some specific amount of residential development, allowed in quantities necessary to serve the needs of the generally measured in terms of dwelling units. Examples of residents of the new development.One ordinance provision such ratios include 1,000-square feet of gross commercial states: floor area per 100 dwelling units; 40-square feet of gross commercial floor area per dwelling unit;or one gross acre Nonresidential uses of a religious,educational,or recrea- of commercial development per 100 dwelling units_ Ratios tional nature shall be presumed to be designed or can also be established in terms of a percentage of intended primarily for the use of the residents of the commercial land area allowable within the gross PUD proposed development, and burden shall be on the acreage_ Examples of such land area ratios ranged in size Planning Commission or objecting parties appearing at from 1.4 to 5 per cent of the total PUD site. 42 i ' A � '^4 y. = 1 y �{a 1' 'i i fir' t kveloped recreational amenities were once a specialized market tool, but they are now almost a requirement for survival in a PUD. While these types of ratios are common, they are rather Churches, schools, and other nonresidential, noncom- } ' :rude tools and have some inherent faults. They can be mercial uses permitted in the PUD-2 District shall be '.,; arbitrary in their effect upon extreme sizes of PUDs, both subject to all requirements for lot area, width, height, ! arge and small. Obviously, a 1.5 per cent ratio for yards, and setbacks prescribed in the district in which :ommercial development could only allow for a meaningful they are first permitted. ; amount of commercial property in a PUD of a substantial :ize. On the other hand in large developments of 500 to Such standards may be sufficient in most cases, but 1,000 acres or more,a five per cent commercial ratio would deviations must also be considered. Specific design plans )ermit a rather large commercial development. One ordi- must justify alterations in the traditional approach, espe- iance did set an upward limit of 10,000-square feet of gross cially in a PUD. In addition, new designs may require that -ommercial floor area, but few other ordinances contained standards need to be tightened up in specific situations due such limits. Another fault is that commercial ratios cannot to the unique characteristics of a particular PUD plan. For k related to the occupants, their income level, their example, increased setbacks or buffer zones may be accessibility to commercial facilities, probable mobility,nor necessary to protect other elements of the PUD from f co the level of commercial services already in existence nonresidential development. within the neighborhood. In short, such ratios are poor Commercial development standards in PUD ordinances substitutes for determining the amount of commercial have been treated with considerably more detail. As a start, development through a market analysis. If used at all,they conventional standards for commercial development from should be in combination with discretionary controls which other ordinance sections often apply as a minimum. For require that justification of need be firmly established. example: "Planned shopping centers, when permitted in a Some ordinances have included provisions establishing PUD District, shall be limited to uses permitted in C-1 minimum PUD size requirements for any commercial Districts and subject to C-1 requirements with the following development (e.g., a minimum of 400 dwelling units or 100 modifications. . . ."The modifications mentioned consist of acres before commercial development is allowed).However, a further set of standards or requirements contained in the t; Iso run the risk of arbitrariness and should not PUD ordinance which often deal with protecting residential I more emphasis than market analysis as a sound sections of the PUD from any adverse effects, coordinating cn.._.n for establishing the proportion of commercial traffic generation and flow, and regulating development development in a residential PUD. timing. It is common practice to apply conventional develop- Most ordinances with commercial PUD standards specify ment standards found elsewhere in the zoning ordinance to that such development must be planned"as an integral part religious,educational,and recreational facilities in PUDs: of the PUD." The design of internal circulation systems 43 must be coordinated with the commercial element of the operate prior to the creation of at least a major proportion development. Most commercial PUD standards specify the of the market which it is intended to serve. In actual category of street type for providing service to commercial practice, commercial development within a PUD, con- developments. structed prior to the establishment of its intended market, may in fact survive off the existing market in the adjacent Such areas shall be so located and designed as to provide area. This possibility is even more real when a market direct access to a Primary, Secondary, or Collector analysis is not used. Situations have occurred in which the Street without creating traffic hazards or congestion on more profitable commercial development was constructed i the other streets. first, followed by a request for an alteration in the Such centers shall have direct access to no less than a development of the residential portion of the PUD,or even secondary street and shall be located and designed a failure to construct the residential portion of the PUD without creating congestion or traffic hazards on any altogether. street. To avoid the above pitfalls, PUD ordinances should Such centers shall be so located and so designed as to include commercial development timing provisions. These provide direct access to a collector or an arterial street provisions should require that some portion of the residen- without creating congestion or traffic hazards on any tial elements of the PUD be completed prior to develop- street. ment of the nonresidential elements. The following are several examples of such timing provisions: In addition to general traffic provisions,some ordinances have specific standards regarding parking and loading space [f the Planned Unit Development contains from one (1) requirements which supersede conventional parking and to fifty (50) dwelling units,seventy-five(75) per cent of loading requirements for commercial development. In some the said dwelling units must be physically constructed cases, anticipated walk-in trade in high-density PUDs,which prior to any nonresidential use construction. ` may also include pedestrian pathway systems, may justify No building Permit for any convenience establishment reductions in off-street commercial parking facilities. In shall be issued nor may any building be used for a t other cases, parking facilities may serve multiple nonresi- convenience establishment before building permits for at dential facilities whose hours of operation do not conflict, least one hundred dwelling units within a radius of 1,000 again permitting reductions in parking space requirements. fee[of the proposed establishment have been issued. Some ordinances leave this question to be resolved by the No building permit for any shopping center shall be review authority. One such provision reads: issued prior to construction of at least five hundred Off-street parking and loading requirements shall be dwelling units in the Planned Development Housing determined by the Planning Commission as appropriate District. to the particular case based upon the types of conve- No building permit for any retail business shall be issued nience establishments permitted and the anticipated before the issuance of Certificates of Occupancy for at proportion of walk-in trade. Multiple use of off-street least 400 dwelling units within the Planned Unit parking and service areas and accessways for convenience Development. establishments may be permitted, if such multiple use will not lead to congestion or the creation of hazards to The above examples differ on the point at which pedestrian or vehicular traffic. commercial development may begin. Some state that the required number of dwelling units must be constructed, Many PUD ordinances also contain a general catch-all others only that building permits be issued for the statement for the protection of the residents of the PUD residential units first, and still others that occupancy and adjacent properties. Most of them are worded some- permits must be issued before the start of nonresidential or what as follows: commercial development construction. Layout of parking areas, service areas, entrances, exits, There are some additional considerations regarding yards, courts and landscaping, and control of signs, nonresidential development. One is commercial sign con- lighting, noise or other potentially adverse influences trol. Sign regulations for commercial development in shall be such as to protect residential character within residential PUDs are generally stricter than conventionally the PUD District and desirable character in any adjoining allowed. The emphasis on integrated architectural treat- Residence District. ment and design of the PUD including accessory nonresi- dential development justifies this position. Generally, signs Development timing is especially important in the are limited to business identification signs placed upon the development of commercial facilities in a residential PUD. structures or individual businesses themselves and shopping , While this subject is dealt with more fully in another center identification signs. Both types are restricted in size section of this report, it should also be mentioned here as it and exact location. Some more detailed ordinances require specifically applies to commercial development.The princi- the submission of a sign plan which must be approved ple behind controlling nonresidential development timing in before the issuance of a building permit. a residential PUD is to prevent one part—especially com- Some ordinances also include specific landscaping and mercial uses—from being built first and risking the possibil- screening provisions for commercial development in resi- ity that the residential portion is abandoned.Timing is also dential PUDs to minimize their undesirable activity effects important to assure the integrity and stability of the and improve visual amenity. Buffer strips and open spaces adjacent zoning districts and surrounding land values. If a may be required to be landscaped, and loading, outdoor market analysis of the residential sections of the PUD storage, and refuse collection areas may need to be establishes the need for a commercial development, it could screened, fenced, or otherwise shielded from adjacent theoretically be in financial trouble by attempting to development. 44 Chapter 6. Legal Aspects of Drafting PUD Ordinances Legal issues arising from the concept of planned unit and regulations commonly contain special or conditional development have been the subject of a relatively large use provisions which permit the location of commercial and body of published mater ials.1 The purpose of this portion institutional uses in otherwise restrictive residential dis- ; of the report is not to reproduce those discussions. Rather, tricts. Neither the theory nor practice of traditional zoning within the context of some of the broader issues raised in is necessarily incompatible with the PUD concept. `' ` that literature, we intend to review subsequent court Legal commentators who discussed PUD in the early 3{; decisions affecting PUD ordinances, covering roughly the 1960s unanimously embraced the basic concept, but they 1 period from 1965 to present. had serious reservations about the technique's validity. Many felt that the fabric of local zoning,generally cut from How Should PUD Be Fitted into the Structure the same Standard Zoning Enabling Act (SZEA) bolt of 3tf of Local Land Development Regulations? cloth, could not be stretched to accommodate the flexibil- section is concerned with three general categories of ity inherent in the PUD concept. First, there was fear that ;ues that may confront the drafter of a PUD courts might find an invalid delegation of power in the y, is ..ce. The first involves the validity of the concept of increased responsibilities for decisions about use and d PUD in light of the limitations courts have historically density changes that PUD gave to the plan commission. imposed on the powers of municipalities to regulate land There was doubt that the constitutional doctrine of development. The second is the background and track separation of powers even applied to local government, but record to date of model state enabling legislation for PUD some courts had talked as though it did. Moreover, the FW intended to overcome basic legal difficulties with the SZEA had not delineated much of a role for the planning ;;' concept. The third part takes a look at how courts have commissions in matters of use and density control;it was viewed some of these issues in states that lack specific the local legislative body's function to enact and amend the ai! enabling legislation for PUD. zoning ordinance, with the board of adjustment ironing out it The separation of incompatible land uses is the theoret- individual hardship situations. ical keystone of traditional"Euclidian" zoning.The regula- Second, PUD was thought to pose a posssible conflict tory rationale is lodged in the prospective prevention of with many state enabling acts which required uniformity of otherwise uncompensated harm to one landowner by the regulations within zoning districts. Although most felt that more intensive use of neighboring property. Superimposed the argument that PUD conflicted with the uniformity rule on this regulatory concept of the separation of incompat- could be overcome, it still cast a shadow of doubt on the ible uses is a structure of value judgments about the relative technique. social worth of certain land uses. This hierarchy of uses Finally, PUD demanded legal mechanisms capable of establishes the least intensive use, the single-family resi- dealing with the creation of private open space held in dence, as the most protected category. Zoning ordinances common and the assurance that developers would adhere to based on this hierarchy are called cumulative,because each complex development plans over time. Existing property more intensive category of land use contains all of the uses law concepts provided some direction, but whether they permitted in preceding categories. The trend in modern could be adopted to municipal use was not clear. zoning practice has been toward exclusive use districts,but Many commentators of the early 1960s believed that the the idea of"cumulativeness"lingers on. best antidote for PUD's known and suspected legal maladies It was suggested that because the mixing of land uses would be state legislation, supplementing but not supplant- was intrinsic to the concept of PUD, it was fundamentally ing existing zoning and planning enabling acts. Such laws z with these traditional notions of land-use regula- would give clear authority for PUD ordinances, describe It this inconsistency is more apparent than real. techniques for ensuring continuing open space mainte- E_ _,an cumulative zoning theoretically permits"mixing" nance, and provide for conditional approval and public of land uses in all but the most restrictive single-family review of phased development. Most important,this special zone. In practice, zoning must accommodate numerous enabling legislation would recognize that whatever the nonconforming uses, even in the most restrictive districts, nature of the municipal body which reviewed and approved 45 PUD applications—legislative or administrative—the func- project beyond that needed for the residents within the tion of PUD approval amounts to the giving of special planned community. Municipalities, as part of their licenses to individual landowners. Thus the review and comprehensive zoning plans, may properly anticipate approval process should be subject to vigorous procedural and provide for the present needs of the public now E safeguards designed to protect the community from arbi- residing in the areas surrounding the planned commu- trary decisions and to provide an extensive record for i Wiry, as well as the reasonably foreseeable future needs judicial review. of the public they anticipate will move into the area and ? In 1965 the Urban Land Institute and the National require servicing. Municipal boundaries should not be j Association of Homebuilders published a "Model State considered unscalable walls to prevent planned and Enabling Act" (Model Act) for planned unit residential development.2 A thorough piece of drafting with extensive reasonable growth of remaining available land areas. commentary, the organization of the Model Act was as The potential scale of PUD in New Jersey was also follows: broadened by including "planned community" and "new t i (1) the constitutional generalization of the preamble;(2) town" as alternative terms in the PUD definition. Finally,the New Jersey drafters added language which would a delineation of the boundaries within which [the PUD[ require the approving body to find that a proposed PUD technique may be employed by the muncipality choos ing to do so; (3)an enumeration of the basic criteria the was in "general conformity"with existing master plans and that it would not have a "substantially adverse" effect on state believes essential in Planned Residential Develop- the development of neighboring areas.)t This expression ment; (4) definition of the respective interests of the residents and the municipality in the enforcement and about potential extra-project impacts of PUD expands and reinforces section 7(b)(5) of the Model Act which requires modification of the Planned Residential Development; the approving authority to make findings about "the (5) a chronological account of the procedural steps relationship, beneficial or adverse, of the proposed Planned required by both a prospective applicant and the local Unit Residential Development to the neighborhood in jurisdiction; (6) a definition of terms considered neces- which it is proposed to be established.. . ." stay to the understanding and legal clarity of the statute.3 Pennsylvania followed New Jersey one year later with PUD enabling legislation based on the Model Act.12 The first state to enact legislation based on the ULI Though the basic structure is the same, there are additional model was New Jersey in 1967. That state's"Planned Unit sections,one conferring the power to enact PUD ordinances Development Acts4 generally follows the structure and on counties as well as municipalities, and the other language of the model religiously, with some minor requiring that the PUD ordinances "be based on and changes. The Model Act was limited in scope to planned interpreted in relation to" the community's comprehensive unit residential development;its forward explains that the plan. The Model Act's definitions and judicial review practical consideration of time and funds prevented an sections are dropped in the Pennsylvania version, and the extension to planned development of other land-use types. Permissive "may" is generally substituted for the manda- The model does, however, provide for "nonresidential uses tory"shall"in the act's directive language. ancillary to residential uses."s A third urban eastern seaboard state fell into the Model New Jersey's act makes the extension by including Act's column when Connecticut added PUD to its planning commercial and industrial uses in the definition of and zoning legislation in 1969.13 Pennsylvania's PUD act "planned unit development" and by adding a new section occasionally drifted from close adherence to the model,and with permissive language. "nothing contained herein shall Connecticut's PUD provisions continued that tendency. preclude the creation of planned industrial development The purpose clause is eliminated, as is the list of specific districts, planned commercial development districts, or the findings the approving authority must make in the event it placing of various kinds of planned districts within one denies a PUD application. Under the Model Act, the local development.s6 An ambiguous phrase was also added to governing body was given the option of designating another the nonresidential category of uses permitted in a primarily local agency or itself as the entity to be given review and residential PUD. The Model Act limited such uses to those approval authority. In Connecticut that power must be "designed and intended to serve the residents of the delegated to the plan commission. PUDs are limited to Planned Unit Residential Development," to which New residential uses (except for ancillary commercial uses Jersey added "... and such other uses as exist or may serving residents) and a PUD must have a minimum of 25 reasonably be expected to exist in the future."8 dwelling units. This additional language was the subject of litigation in In that same year, Kansas enacted PUD legislation Rudderow v. Township Committee of Township of Mt. virtually identical to New Jersey's.14 One helpful addition laurel,9 where a developer had proposed a 162-acre PUD, was a provision authorizing application fees. Kansas the primary feature of which was a regional shopping avoided the New Jersey ambiguity regarding nonresidential center. The municipality's approval of the project was uses in conjunction with residential development;PUDs by challenged on the ground that it permitted nonresidential definition could consist of office and commercial uses as uses beyond those necessary to serve the needs of residents well as dwelling units, and the list of permitted nonresiden- of the proposed PUD. The trial court sustained this tial uses was broadened to include: argument, interpreting the language of the enabling provi- Commercial uses having a major impact upon the sion narrowly. The supreme court, however, indicated its municipality as a whole or major subelements thereof, willingness to interpret the act more broadly: such as shopping centers, office complexes, major PP g recreational and entertainment facilities, together with We construe the statute to authorize municipalities, such other uses that are designed or intended to serve where warranted, to permit commercial uses in a PUD such activities and uses. 46 Industrial parks, including other supporting uses neces- have some form of PUD or cluster subdivision enabling sary for and designed or intended to serve such activities legislation, but they share few common features other than or uses.1 5 a policy of leaving municipalities pretty much on their own to devise PUD regulations. he Model Act was reinforced in 1969 when the Have the legal questions raised a decade ago or the lack >ory Commission on intergovernmental Relations of direction from the states deterred local governments --IR) published the New Jersey PUD act as part of its from enacting PUD ordinances? In response to a question- suggested state legislation for 1970.6 In 1972 Colorado naire sent to 300 local planning agency subscribers of passed a PUD act,1 7 apparently based on the ACIR model. ASPO's Planning Advisory Service, we received almost 100 The Colorado drafters followed an ACIR footnote which PUD ordinances, coming from all but 18 states. Although suggests that sections 5 through 10 of the Model Act—those our subscriber list is by no means a completely representa- describing the procedural steps in applying for tentative and tive sample of local governments with planning and zoning final PUD approval—could be omitted, leaving those mat powers, we could discern no direct relationship between the ters for local ordinances. number of ordinances received from a given state and the j The most recent addition to the list of Model Act- presence of PUD enabling legislation. Indeed, we received inspired enabling legislation is Nevada's Planned Unit by far the largest number of ordinances from California, a Development Law, which became effective July 1, 1973.18 state fond of planning but with no specific PUD enabling Although the Nevada drafters stuck to the Model Act,they provisions.2 5 seem to have missed one of its points about procedural Were PUD commentators of the early 1960s wrong? safeguards: the Model Act requirement that the approval Were the issues they raised imaginary? A conclusion drawn authority maintain a record of public hearings is dropped. by the authors of a 1959 article on PUD could be used to1? Added to the provisions of the act is a long fist of suggested describe the current situation without much loss ofj g PUD design standards (e.g., "On private common drives, relevancy: "The validity of planned development provisions safety lights are required and shall be placed no more than and the action taken under them has rarely been litigated. 40 feet apart on center with fixtures similar to Kendall In the reported cases, the constitutional issues do not seem #3663 . .. " etc.), apparently derived from Las Vegas'PUD to have been raised or considered. ,26 We believe that those ordinance. issues, although well grounded in statutes and case law In addition to the six states that have enacted full-blown precedents, simply lacked willing plaintiffs. PUD enabling laws, based to some degree or another on the The usual plaintiff in a suit attacking some zoning action Model Act, about an equal number of other jurisdictions or inaction is either the landowner/developer or a y � make specific mention of PUD-like techniques in their neighboring landowner. Yet in very few of the reported riV rIgnning and zoning enabling legislation. The approaches cases involving PUDs is the developer a plaintiff. One i by these states,however,vary widely. possible reason for the absence of developers from the yew York19 and Indiana20 have cluster subdivision ranks of plaintiffs is that the relationship between the , enablingprovisions based on Section 12 of a model P p y P g g p developer and munci alit riot to a challen able zoning tannin enabling law prepared b Edward Bassett and planning g p p y action is characterized by negotiation and substantial Frank Williams in 1925.21 Both provisions authorize the agreement. Without that early agreement on the basic F, planning commission to approve density transfers where the outline of the PUD proposal,there is little incentive for the average density does not exceed that permitted by the developer to pay for costly preparations or for the city to applicable zoning. The Indiana provision effectively applies make some zoning change. In the cases that do have only to Indianapolis. developer plaintiffs, the validity of PUD ordinance itself is In 1969 Wisconsin eschewed models with a "you-can- rarely challenged but more often it is an arbitrary standard do-it"provision noteworthy for its economy of language.2 2 or abuse of required procedure by the approving body that It permits municipalities to create "special" PUD districts sparks the developer's suit. and nonuniform regulations for such districts. Somewhat The bulk of PUD cases is brought by the neighboring more descriptive but still brief are provisions for county homeowner. But even this plaintiff rarely challenges the and township PUD regulations adopted by Ohio in 1972. validity of the PUD ordinance itself. It's not the concept of Like Wisconsin, they describe a PUD district or zone, to PUD the neighbors object to, just the apartments that a which special, nonuniform regulations may apply.A defini- particular proposal will locate next to their single-family tion of a PUD is added which includes residential and subdivision. As a result,the focus of such lawsuits is usually "collateral" uses. Phased development is also covered since on the validity of a specific zoning action—increasing the regulations may require developers to secure "conditional density of the underlying zone or approving a special-use or final certification of compliance . . .at specified stages of permit for PUD—which implements the PUD process,rather development.i2 3 than on the provisions of the PUD ordinance. Without specific enabling legislation. many municipali- Looming over these arguments about PUD's validity ties implement PUD through an elaborate special use without enabling legislation are portents of change that technique. For example, Illinois in 1967 amended its could render the whole issue moot. Although it may be enabling act to include PUD as a permitted category of another year or two before a final draft of the American special uses.24 In other states the language describing Law Institute's A Model Land Development Code is ^ial uses is so broad as to permit cluster subdivisions if approved, some of its proposals (particularly those ull-fledged PUDs. describing a more active state role in local land-use j sum, PUD enabling legislation has not exactly burned decisions) have found their way into pending federal and its way through the nation's statehouses. In-the eight years state legislation. Based on this early interest in an as yet since the Model Act was published, only six states have incomplete model, one can speculate that the ALI's model passed laws based on it. An equal number of other states for sweeping change might faze better than the less 47 ambitious PUD model enabling act. But whatever the Regulations for zoning districts are to be drawn so as to ultimate effect of the ALI Model Code, its provisions would avoid use combinations which reduce the value of the eliminate legal objections to PUD under existing enabling included uses. The words"particular uses"are noteworthy;- legislation. by direct inference the combination of harmonious, com- Briefly, the Model Code scraps the distinctions between patible uses(as within a PUD)is not prohibited. zoning and subdivision regulations; both are to be Court cases interpreting similar language in state en- combined in a single development ordinance administered abling legislation support this conclusion. In Orinda Home- by a land development agency.27 The conventional zoning owners Committee v. Bd. of Supervisors,34 neighboring mechanism is retained but emphasis is placed on controlling landowners challenged the rezoning of a 187-acre parcel development through flexible techniques involving the from a single-family residential classification to planned exercise of considerable discretion by the administrative unit development with cluster residential areas on the agency, and limited primarily by detailed procedural grounds that the planned unit violated the uniformity requirements and the availability of judicial review. 8 Thus requirement of the enabling act. The California court the delegation of power problems created by the dismissed the argument: conventional legislative/administrative distinctions are avoided. The code simply drops the SZEA language We hold that a residential planned unit development (a requiring that all regulations be uniform within each zoning cluster development) does not conflict with Section district29 and relies on constitutional standards to provide 65852 merely by reason of the fact that the units are relief from discriminatory application of regulations-30 not uniform, that is, they are not all single-family The ability of a community to protect PUD open space dwellings and perhaps the multifamily units differ from subsequent development pressures may be enhanced among themselves. Section 65852 provides that the by another Model Code provision which allows regulations shall be uniform for each class or kind of 3 t building or use of land throughout the zone. It does not municipalities to acquire less-than-fee interests in land. This would enable a community to acquire, either by state that the units must be alike even as to their purchase or dedication, the development rights to open character, whether single family or multifamily. In space. conventional zoning, where apartment houses are per- As the preceding section pointed out, the majority of mitted in a particular zone,single-family dwellings,being states do not have PUD enabling legislation.We look,then, regarded (whether rightly or wrongly)as a"higher"use, to the case law of those states to determine how legal are also allowed. This causes no conflict with Section. problems with PUD that otherwise might have been 65852. s overcome by legislation have been resolved through The same result was achieved with a slightly different litigation. rationale in a recent Maryland case.36 At issue was an The Uniformity Question. Basic to the zoning powers ordinance which permitted cluster development in certain delegated to most municipalities is the authority to divide residential districts subject to approval by the planning the community into districts, each subject to land use, board. The court held that the uniformity requirement had density, lot area, and building bulk restrictions. Typical been met because any property owner in the designated state enabling laws require that "Ail such regulations shall districts could apply for the cluster option. The ordinance be uniform for each class or kind of buildings throughout escaped the vice of being compulsory. Neither rationale each district, but the regulations in one district may differ may be totally satisfactory, but the important point is that from those in other districts."32 Because single-use districts the uniformity requirement has not, to the best of our are a fairly common feature of conventional zoning knowledge, been used by a court as a basis for striking practice, many have inferred that the uniform regulation down a PUD ordinance. requirement when applied to use regulations means that The Relationship of PUD to the Comprehensive Plan. only one kind of land use may be permitted within a given The SZEA and most state enabling legislation modeled on it district. Thus the argument goes that the mixture of uses contain language to the effect that zoning regulations and contemplated in the typical PUD ordinance is beyond the subsequent changes and amendments to the regulations power of the local legislature. "shall be made in accordance with a comprehensive This conclusion misses the fundamental objective of the plan.i37 In general, courts have not interpreted this uniformity requirement: to insure that municipal restric- language to require that a community have adopted a tions and regulations have an equal and impartial impact specific document called the comprehensive plan prior,to upon owners of land similarly situated. The point is that enacting a zoning ordinance or subsequent amendments. regulations can differ insofar as the owners at whom they Instead, the comprehensive plan has been perceived from are directed develop their property under differing circum- the zoning ordinance itself, the zoning map, any studies or i stances; uniformity is required only to insure that owners reports commissioned by the municipality which deal with having similar circumstances are not treated differently. its present and future land-use and development needs,and This interpretation of the uniformity requirement is even in the community's overall plan of development.38 reinforced by other language from the Standard Zoning While the courts may have had difficulty describing Enabling Act regarding the purpose of district regulations. exactly what the comprehensive plan is and what consti- tutes regulations "in accordance with" the plan, they have Such regulations shall be made with reasonable consider- zeroed in on what it is not in accordance: spot zoning. The ation, among other things, to the character of the principal evil of spot zoning is its lack of conformity with district and its peculiar suitability for particular uses, the comprehensive plan;it affects only a few parcels or one and with a view to conserving the value of buildings and owner, and appears to have been enacted solely for his encouraging the most appropriate use of land through- benefit. Typically the spot zoning designation is not in out such municipality.33 harmony with surrounding uses.39 48 Because the objective of PUD is to achieve more rational constitute spot zoning. The court recognized a need for and efficient utilization of the community's land resources, "reasonable flexibility" in zoning, and saw the floating zoning action to permit PUD arguably should have little zone technique as a legitimate step in that direction. A difficulty conforming to this broad conception of the similar attitude has prevailed in New York.a s -ehensive plan. Nevertheless PUD does bear some of This is not to say, however, that the courts will not ributes of the forbidden spot zoning: it affects only require that a specific zoning action implementing PUD be oi., owner or parcel of land, and the mixture and intensity related to the community's overall planning effort or that of use permitted is often greater than permitted in of neighboring jurisdictions. In Frankland v. City of Lake surrounding districts. Oswego,46 an Oregon intermediate appellate court held Perhaps the most conservative case relating the compre- that the PUD plan for the area subject to rezoning for PUD hensive plan requirement to planned development is Eves v. was not the equivalent of a comprehensive plan for the Zoning Board of Adjustment.40 Actually,the zoning device purposes of determining whether the rezoning had been "in at issue in Eves was not PUD, but a floating zone which accordance with the comprehensive plan." The land in- permitted light industrial uses in residential areas subject to volved in the disputed rezoning was included as part of a site planning restrictions. Floating zones, however, are large mixed-use PUD,but in reality was a long,narrow strip commonly employed as zoning vehicles for PUD, so the surrounded by existing low-density,single-family dwellings. issues raised are of interest. The Supreme Court of Prior to annexation, the strip had been classified single- Pennsylvania declared the floating zone classification family by the county.The annexing municipality had never beyond the power of the municipality under the enabling included the property in its comprehensive plan, if indeed it act;further, the floating zone device was invalid because it had one, and claimed that the PUD plan it had approved failed to satisfy the requirement that it be in accordance was relevant to its subsequent zoning actions with respect with the comprehensive plan. The municipality did have a to the area included within the PUD. plan embodying a set of policy statements about future Accepting this argument, the trial court had ruled that development, but the court rejected it, finding that the the protesting neighbors had the burden of proving that the municipality had "confused comprehensive planning with a plan and zoning scheme for the entire PUD were invalid in comprehensive plan." Apparently the "plan"the court had order to reach the zoning of the strip of land.The appellate in mind was something more akin to a zoning map with court reversed this portion of the lower court's decision, predesignated uses. stressing evidence which showed that the parcel in question Subsequent Pennsylvania cases have softened this rigid bore little physical relationship to the larger PUD tract.The view of the plan requirement.4 t In Cheney v. Village 2 at court apparently viewed the rezoning of the narrow parcel New Hope, Inc., the court again considered the use of the as an instance of spot zoning, and accordingly shifted the fIr—ing zone technique, this time in the context of a PUD burden of supporting the ordinance to the municipality. The municipality had adopted a comprehensive The court made it clear, however, that its decision did not rvo years prior to the contested passage of the zoning necessarily cast a shadow on other rezonings for the PUD: amendments creating and simultaneously locating the float- Our decision here is intended to have no effect upon ing zone. The court disagreed with the argument that the comprehensive zoning in a Planned-Unit Development of amendments were invalid by being contrary to the compre an homogeneous area of land, an example of which hensive plan: might well be the 600-acre tract involved in the case at The fallacy in the [lower] court's reasoning lies in its bar. . .without the strip in controversy, assuming the mistaken belief that a comprehensive plan, once estab- municipal body genuinely takes into consideration pre- lished, is forever binding on the municipality and can existing zoning and neighborhood development along its never be amended. . . . [T]hese plans may be changed by borders.47 the passage of new zoning ordinances, provided the local legislature passes a new ordinance with some demonstra- Grafting PUD to the Existing Ordinance. As we noted Previously, two-thirds of the ordinances in the study used tion of sensitivity to the community as a whole,and the impact that the new ordinance will have on this either the zoning amendment or a special exception/condi- community.42 tional use procedure to implement PUD. With respect .to those communities which use the zoning amendment Nor was spot zoning an issue because the zone had been technique, we believe that PUDs are most often treated as "brought to earth" the very day it was created when the floating zones, rather than being fixed in advance on the developer's application was approved, and the court was zoning map. willing to view the two separate amendments as one action. As noted above, the floating zone technique has been approved by the courts in several states,though not always Moreover, the amendments had been in accordance with a comprehensive plan. The court's willingness to expand the in the context of PUD as Maryland is perhaps most fiction prominent in terms of the variety of uses handled via ction of contemporaneous enactment was demonstrated in the recent Marino decision, floating zones and the number of cases upholding their between the passage of an ordinance creating a shopping use. - This quick acceptance and broad use may be due in Part to the difficulty of justifying rezonings to regular center district and the subsequent rezoning of a parcel to that classification. districts permitting more intensive uses under the rigorous iris in other states have expressed a much more Maryland "change-mistake" rules° The Colorado courts view of the comprehensive plan requirement and the have sustained a rezoning to PUD against a challenge that spot zoning argument as applied to PUD.In Jablon v. Town there had been no showing of changed condition sufficient Planning and Zoning Commission of Town of Newton,44 to warrant the change. The PUD ordinance had described a the Connecticut court held that a floating zone for specific criterion—compatibility with underlying districts — industrial industrial uses did not violate the comprehensive plan or and the city had not abused its discretion in approving it. 49 New York sanctioned the floating zone concept in PUD Approval Power. We have suggested that the Rodgers v. Tarrytown.52 In a series of cases involving planning commission, with its analogous function of subdi- apartments and "clean" industrial parks, Connecticut vision review and (in some communities) professional staff courts have also approved floating zones.53 In these states, support, appears to be a logical local government body to _ the objection that the location of a floating zone is carry out the functions of PUD review and approval. tantamount to spot zoning has been overcome. However, neither of the most common zoning approaches The floating zone has been favorably compared to a for PUD implementation usually confers decision-making special permit procedure, because the power of the govern- authority on the planning commission. Zoning amendments mental body to approve the floating zone is not unfettered. require legislative body action, though often with recom- Rather, approval is conditioned on the satisfaction of mendations by the planning commission. Final approval of } certain criteria and standards enunciated in the ordinance special permits is sometimes delegated,like variances,to the creating the floating zone. This analogy to the special board of adjustment, or the legislative body may retain permit has not been picked up in other states. Floating control over that process. Zoning enabling statutes may zones have been condemned as spot zoning in Massachu- limit the extent to which a PUD review process can deviate setts 54 and Pennsylvania,s 5 though more recent cases in from these models,s 9 while those of a few states specifi- both states indicate that the difficulty can be overcomes 6 cally grant the planning commission authority to approve The lack of reported cases which litigate the validity of special exceptions and conditional uses.60 implementing PUD through the special exception or condi- Two decisions from Connecticut,one of the states which tionl uses technique may bear mute testimony to its does empower the plan commission to approve special success_ A 1971 Minnesota decision provides an extreme permits, illustrate that the power to approve is not example of judicial acceptance of PUD by special permits 7 discretionary. When disapproving an applicant's project,the There the court approved what it termed a"hybrid"of the commission must be prepared to give substantive reasons variance and special-use permit techniques which permitted for its action. The Connecticut court equated the function PUDs involving a substantial increase in density over the of the commission in PUD review to that in subdivision applicable zoning. Subsequent changes in the PUD plan review in R.K. Development Corp. v. City of Norwalk.61 could be approved by the planning commission as amend- Vague reasons were an insufficient basis for rejection. A ments to the special permit. The ordinance contained few similar result obtained in DeMaria v. Enfield Planning and procedural safeguards. Zoning Commission,62 where the commission had rejected Despite the Minnesota court's willingness to bend over an apartment PUD because of the "aesthetic effect of the backward to accommodate good intentions despite bad complex in relation to the existing neighborhood and the procedures, the special exception or conditional use tech- town in general." The court held that such vague and nique does have limitations as a means of implementing undefined aesthetic considerations alone were not enough PUD. Courts tend to view the granting of special permits as to support an exercise of the police power. administrative acts, and require that the criteria governing This denial of unfettered discretion to the approving the grant of permits be spelled out in the ordinance. Lund agency has been carried over to instances in which the body V. City of Tumwaters 8 provides an example of this judicial granting final approval is the local legislature, not the attitude in the context of PUD.The city's zoning ordinance planning commission. In Hall v. Korth,b3 the Florida court authorized the issuance of special-use permits for specific overturned the county council's refusal to rezone the land uses, but it also contained a provision,which,without applicant's property from an agricultural classification to listing any specific uses,authorized the city council to issue PUD, where the project had been approved by both the special permits subject to such conditions as it judged were planning department and the zoning board of appeals.The "required to secure adequate protection to the zone or court found that the denial was unsupported by the record. locality in which the use is to be permitted after consider- Notwithstanding this Florida decision, the traditional ation by the planning commission. . . ." Over objections of notion has been that different ground rules apply to acts of the planning commission, the city council had passed an local legislatures as contrasted with those of administrative ordinance which annexed two and one-half acres to the agencies. The conventional judicial expression of this city, joining that parcel to seven and one-half acres already concept is derived from the constitutional separation of in the city, which together were the site of a proposed powers doctrine. In essence the courts have said that the PUD. The newly annexed land was zoned R-1 to match the business of an elected legislature is to enact rules and i classification of the larger parcel, and simultaneously both regulations of general application. It would injure the were granted a special-usepermit for the PUD. distinction between the separate branches of government A Washington intermediate level appellate court invali- were the courts to substitute their judgment for that of the dated this use of the special permit procedure. The court legislature in such matters. Therefore, the courts will only noted that special use permits could only be granted for step in where the acts of the legislature are clearly uses specifically authorized in the zoning ordinance. This unconstitutional. limitation was made necessary by the fact that the granting Administrative agencies, on the other hand, often are of a special use permit was an administrative act and not responsible to the governed at the ballot box. More therefore had to be controlled by adequate standards, important, they make different kinds of decisions. They regardless of whether the permit was issued by the must apply general rules and regulations to specific individ- legislative body or an administrative agency. In answer to uals. Frequently this administration of regulations is in the city's contention that the council had acted in a reality the allocation of special rights and privileges to legislative capacity, the court replied that "every act of a certain individuals while withholding them from others. legislative body is not a legislative act."The problem in the Such decision making is sometimes termed quasi-judicial, Lund case was that the city had failed to describe PUD in and the courts apply a stringent standard of review with the zoning ordinance as one of the uses available by special respect to the rights of parties to a fair and open hearing permit in certain districts. before the administrative agency. 50 As applied to zoning, this general principle of judicial In earlier cases, the Oregon court had declared its eview of local government decisions has resulted in the adherence to the concept that local legislative acts were ollowing kind of analysis: The passage of a zoning entitled to presumptive validity.67 In one of those same )rdinance or the approval of a comprehensive plan are decisions, however, the court had carved out a mini-excep- )r characterized as legislative acts, within the legisla- tion to the presumption rule where it perceived that the is general rule-making authority. So, an amend- municipality had engaged in spot zoning. In such cases,the 7, the zoning ordinance is a legislative act. When some municipality (really the landowner seeking the rezoning) egislative action is appealed to the courts, they will was required to show either that the rezone was in presume that the action is valid;the person challenging the conformance with the comprehensive plan or that there had action must bear the burden of proving its unconstitution- been some change in the area or neighborhood in which the ility. Because ordinance amendments are legislative acts, land subject to the rezone was located.68 s they are also afforded the presumption of validity.64 In F:uano, the court was confronted with a rezoning The commentators who wrote about PUD in the early which did not fit easily into the classic spot zoning mold. 1960s correctly pointed out that the PUD process (and, To be sure, it affected only one landowner, but the parcel indeed, much of what passes as zoning administration) size was considerably larger than one or two lots and the almost by definition does not conform to this judicial development technique proposed was authorized by a model of local government decision making.6S The amend- special district in the zoning ordinance. Some other basis merit of the zoning ordinance or the approval of a special was needed to overcome the presumption. permit which allows an individual landowner to proceed The court struck out boldly, first tackling the county's with a PUD is not an action which applies generally to the argument that its action was presumptively valid: citizens of a community or even the landowners in a particular district. Instead, it involves the allocation of [W]e feel we would be ignoring reality to rigidly view all zoning decisions by local governing bodies as legislative valuable development rights to one applicant-landowner, acts to be accorded a full presumption of validity and ;[f and the adjudication of his rights vis-a-vis the rights of l; c neighboring landowners. This characterization of the gov- shielded from less than constitutional scrutiny by the g{,i theory of separation of powers. Local and small decision !f ernmental action in question holds true whether the actor is ].: the legislature or an administrative agency. For the courts groups are simply not the equivalent in all respects of to determine the level of judicial review employed solely on state and national legislatures. . . . [A] determination ' whether the permissible use of a specific piece of the basis of actor's identity, regardless of the nature of the action, is to engage in the use of highly artificial labels. property should be changed is usually an exercise of 4! The impact of labels affects not only the type of review judicial authority and.69s propriety is subject to an r 5 but also how much of the decision-making process is a! the for the court to review. Administrative agencies g In order to determine the nature of the action, the court y� mmonly subject to strict procedural requirements— borrowed the following distinction: n,-.,:e of hearings to interested parties,the maintenance of a record of hearings, the rights of parties to cross-examine • • . Basically, this test involves the determination of witnesses—whichthe court on appeal Ives eal an adequate whether action produces a general rule or policy which is g� 3 ; picture of how the decision was made. Such procedural applicable to an open class of individuals, interests, or requirements may not be required of the local legislative situations, or whether it entails the application of a bodY general rule or policy to specific individuals,interests,or t!. situations. if the former determination is satisfied,there The drafters of the Model Act surmounted these difficulties by mandating extensive procedural safeguards to is legislative action; if the latter determination is be followed by the local agency authorized to review and satisfied,the action is judicial.70 approve PUDs, whether the body accomplishing that task Having described the test to be used in determining the was the local legislature or an administrative agency. But in type of judicial review to be given contested municipal i the majority of states that do not have enabling legislation actions,the court went on to clarify the standards of review based on the ULI Model Act,the problem remains. it would apply and, conversely, what the municipality Toward a New Standard o Judicial Review. There is f ./ would have to show in support of its actions. The basic some evidence that the courts are willing to step in where statutory criterion for rezonings was conformity with the state and local legislatures have heretofore declined to comprehensive plan. In order to prove conformity, a tread. Where the lawmakers have failed to balance the municipality would have to show at a minimum that there sanctioned discretion of PUD with procedural safeguards, was a public need for a change of the kind in question,and the courts may accomplish nearly the same result by that the need would be best served by changing the changing the rules governing judicial review of legislative classification of the particular piece of property in question action. This can involve either one or both of the following as compared with other available property. Change in the measures: reversing the presumption of validity that shields immediate vicinity of the property to be rezoned was legislative actions from strict judicial scrutiny and estab- rejected as the sole criterion for measuring conformity with lishing minimum procedural and evidentiary standards the plan; it was but one of many factors to be considered necessary to sustain municipal action on appeal. when enacting a zoning ordinance. In addition, the burden In a recent case, Fasano v. Board of County Commis- of proof carried by the municipality would increase in ers,66 the defendant county commissioners had proportion to the degree of variance between the new and roved a zone change from single-family residential to old zoning designations. I planned residential to allow construction of a 32-acre The court was not unaware that it would be accused of mobile home PUD. Challenging the rezone was an attorney making the zoning process more rigid at a time when many and resident of an adjoining single-family area. argue for increased flexibility: 51 j� " that in the district. In calculating the density o_ the project, the city had included in the "net devc opr,)ent area" the project's private streets, which would .�e been deleted from the calculation had they been de 2d to the public. { By making the streets private, the developer had been able to count them as common open space, thus increasing the density of the project. In an action brought by neighbors, the court held that the city council had the authority to interpret the - requirements in the ordin< cc. The court relied on the normal presumption of validity attaching to legislative acts and found that the ordinance had vested discretion in the council to interpret the density provisions of the ordinance. An appellate court in New Jersey was less willing to pgrant the local governing body latitude in defining the open space requirement of its cluster subdivision ordinance. The ` court in Mountcrest Estates v. Mayor and Township Committee of Rockaway 73 declared the open space provi- sions invalid because they contained no limitation as to the nature of the public use to be made of the donated property. Such property could be The PUD process allows a freer placement of buildings on the land. used to build a jail,a municipal garage or sewage disposal plant, a dog pound or other similar structure incompat- By treating the exercise of authority by the commission ible with residences and occupying all of the donated � in this case as the exercise of judicial rather than of space. . . . [The ordinance] grants an unfettered right in legislative authority and thus enlarging the scope of the planning board to determine the location and shape , review on appeal, and by placing the burden of the of the lands donated.We believe these vital provisions of above level of proof upon the one seeking the change, we may lay the court open to criticism by legal scholars the ordinance to be invalid for lack of adequate who think it desirable that planning authorities be vested standards. . . . Since they are basic to them, all of the with the ability to adjust more freely to changed open space provisions of the amendments fa11 with them. conditions. However, having weighed the dangers of PUD has been described as legitimized deals between making desirable change more difficult against the local government and developers. There can be no doubt j dangers of the almost irresistible pressures that can be that the concept vests considerably more discretion in those f asserted by private economic interests on local govern- that administer the process than would be typical in ment, we believe that the latter dangers are more to be conventional land development regulations. The drafters of feared.?1 the Model Act recognized the potential for abuse inherent in the concept, and took pains in their model to hedge the Legal Problems in Administration discretionary review process with procedures designed to The preceding part of this chapter has been concerned safeguard the interests of the applicant and the general primarily with some of the larger legal issues raised when public alike. But few states have adopted the model j the concept of PUD is superimposed on the existing law of legislation and, without the kinds of procedural safeguards land-use controls. This part focuses on the more specific embodied in the Model Act, the courts provide the only legal problems that arise from the administration of PUD backstop for administrative abuse of discretion. ordinances. We will review here court decisions in cases A graphic example is provided by Dover Township concerning density and open space provisions, due process Homeowners and Tenants Association v. Township of questions involved in the PUD review and approval proce- Dover Planning Board.74 In that case, the township dures, and the problem of controlling large developments planning board approved a preliminary plan for a 400-acre 1 over time. PUD which was challenged by an association of town A key element of PUD is the idea of density transfer,the residents on the grounds that there had been numerous relaxation of lot area and setback requirements to permit irregularities in board's approval. The court found that the the clustering of structures and the creation of common board's decision was invalid because one of its members had open space. While we could find no cases which directly an interest in the proceeding which so tainted the board's litigated the validity of the density transfer technique actions as to render them null regardless of any lack of {which really goes to validity of PUD itself) or the more fraud or bad faith. In addition, the notice of the hearing at extreme case in which density bonuses over and above the which the application was approved was defective because underlying zoning are given the developer in exchange for it failed to set forth the application in full and instead project "amenities," one court has recently examined the merely described the nature and location of the proposed way in which a municipality administered its density development in general terms. Finally, the board's initial transfer provision. attempt to approve the application was invalid because it In Peabody v. City of Phoenix72 the city had approved had not satisfied the enabling act requirements relating to the construction of a 44-unit PUD on a 36-acre site,where the making of transcripts, swearing of witnesses,and setting the zoning district required a lot area of 35,000 square feet forth of factual findings. per residence. The city's PUD ordinance required that the In Fasano v. Board of County Commissioner s75 the overall density permitted in the PUD be consistent with Oregon court refused to let the local legislative body'use 52 i the presumption of validity doctrine to shield the basically failure to carry through on the project as approved; the administrative act of PUD approval from judicial scrutiny. developer from public actions which have the effect of When the legislative body acted in an administrative or changing the rules;and the resident who purchases property adiudicatory capacity it was required to follow certain in the PUD from changes that are contrary to the ium procedures to protect the rights of interested developer's representations and which harm his interests. ;. Thus, parties at hearings before such bodies were To protect these sometime conflicting interests requires _..,rtled to an opportunity to be heard,an opportunity to skillful balancing. it is not surprising that many PUD present and rebut evidence, to a tribunal which is impartial ordinances are most responsive to the public interest. in the matter—i.e., having no prehearing or ex parte These drafting problems were the subject of extensive contacts concerning the question at issue—and to a record coverage in the ULl's Technical Bulletin No. 52 and ASPO's made and adequate findings executed. ,76 1966 report on PUD.78 They address themselves to legal Issues of this kind are most often raised by those who questions of particular concern to the drafter of a PUD own property in the vicinity of the proposed PUD. Their ordinance. First, can the developer be bound to complete ability to bring a lawsuit may depend on whether the court the plan as approved? Second, what assurances does the determines that they have been sufficiently injured by the developer have that the municipality will not subsequently governmental action in question to warrant judicial inter- change its requirements, even though such action is at vention. The court in the Dover case represents a fairly variance with the approved plan? Finally, if it makes sense liberal view on the question of standing. The court there that the PUD approval process should provide for minor held that any taxpayer, without showing special damage, changes which do not materially alter the plan or injure the could challenge a decision of the governing body which interests of public, developer, and housing consumer, how affected the overall integrity of the zoning plan. should the seriousness of such change be measured? The California court in the recent case of Scott v. City A common technique employed in PUD ordinances to of Indian Wells" held that a nonresident had standing to insure developer compliance with the overall plan through- contest the city's.grant of a conditional use permit to out the project phases is to grant approval of a preliminary construct a large planned development on land lying just plan for the entire project but to withhold final approval inside the city's boundary. In addition, the city was and zoning amendments (where necessary) for each_phase required to provide adj6ining landowners with reasonable until it is substantially completed. This technique was notice of its intentions and an opportunity to appear at a approved by the Maryland court in Wier v. Whitney Land hearing on the matter. The city had a duty to consider the Co." where the court found that the municipality had effect of the proposed project on neighboring landowners, correctly denied rezoning for the final two of four phases in >: regardless of whether they were residents or not. a very large development of mixed multifamily and The PUD concept encourages the development of large commercial uses to be constructed over a period of 10 to s of land, and the mechanics of such development 15 years. The municipality was justified in its action dictate that construction be phased over a period of because otherwise it had no legal guarantee that the time. In any kind of project carried out over time, it is developer would not accelerate the timetable or sell the perhaps inevitable that original plans must bow to the land. The court went on to suggest the use of a floating reality of changed circumstances. But because the PUD zone in such a situation which would permit modification regulatory Process is structured around an initial approval -of the development plan only with municipal approval. of a plan for the site as a unit, it must protect against The use- of zoning amendments subject to numerous changes which injure the interests of the public, the conditions to implement PUD and to insure that the developer,and potential residents of the PUD. developer adheres to the approved plan raises the possibility 1' We recognize that all three parties ought to be protected of conflict with the general judicial disapproval of "con- by the PUD ordinance: the public from the developer's tract zoning." For example, in another recent Maryland `f- Increased flexibility allows project elements—housing, transportation systems, open spaces, nonresidential uses—to be interrelated. � i fir'v If t Int ' ;tt a- L - a °r � case, the high court of that state upheld the denial of a planning agency with respect to the administration of rezoning where the developer had offered to record changes in the preliminary plan,and to distinguish between covenants binding him to submit site plans for approval if minor changes and those which materially affect the _ he got favorable rezoning from the municipality. Accep- interior relationships of project components and the impact tance of the covenants would have been an invalid of the project on neighboring uses. "conditional zoning"under Maryland law.80 In the California case of Millbrae Association for It should be noted that Maryland applies a relatively Residential Survival v. City of Millbrae 86 the city's PUD strict rule against contract zoning and that rezoning subject ordinance apparently did not limit the planning commis- to conditions may be possible elsewhere. A recent article sion's power to approve changes in the preliminary plan. discussing legal issues present in PUD$1 reviewed the Neighbors objected to changes from medium-rise to high- contract zoning cases from several eastern states and rise structures and the relocation of structures within the reached the following conclusions: site. The court found that these changes altered the basis Given the importance of the conditioned approval to the for the rezoning to PUD district: phased development of mixed uses common to the In our view, while the change in the number of i planned unit development, care must be taken by local apartments in each of the high-rise buildings would governing bodies in implementing a planned develop- properly be the subject of the precise plan under the ment. Certainly, rezoning can proceed where the owner ordinance so long as it did not increase the "general has fulfilled conditional requirements beforehand.Alter- size" of the buildings as delineated in the general plan, natively, the municipality is probably safe in adopting the other changes amount to a substantial alteration of the amendment effective immediately but with auto- the general plan since they materially and fundamentally matic reversion to prior zoning in the event conditions change the location of two of the high-rise buildings and are not fulfilled within a fixed time limit;less clear but the size of the parking areas and the open areas. These I likewise probably permissible is the practice of adopting were specific elements of the general plan incident to the II the ordinance but postponing its effective date until zoning of the PD district and their change and alteration conditions are performed within a specified time amounted to a rezoning of the district.We are persuaded limit.82 to this conclusion by the very nature of the PD district. f Nevertheless, automatic reversion clauses may run afoul Although the creation of such a district allows for of the procedural requirements for rezoning amendments greater flexibility and diversification in the location of j structures and other site qualities and their uses, once found in many state enabling provisions. In Scrutton v. County of Sacramento83 an intermediate level appellate these elements are delineated in the general plan they court in California found invalid a conditional rezoning constitute material and indispensible attributes of the i which provided for automatic reversal to the original zoning district itself. In other words, the zoning characteristics classification should the landowner fail to meet the of the district consist not only in the classification of the components of the general plan conditions. The notice, hearing, and planning commission district to PD but in the compi inquiry requirements of the enabling statute would be accompanying the application for the creation of the ignored were the parcel to revert automatically to its district and any subsequent amendments to the plan that may properly be adopted. Accordingly, any substantial former classification on a breach of the proposed condi- 1 tions. The court indicated that the provision probably change or alteration in the actual physical characteristics exceeded the substantive limitations on the county legisla- of the district and its configuration amount to a tive body's zoning powers because its operation caused a rezoning of the district and may only be accomplished forfeiture of the landowner's rights, a result that could pursuant to the provisions of the state statutes and the local ordinances consistent therewith providing for hardly be termed a legislative decision on land use. 87 Binding the municipality to the plan it approves would zoning and rezoning. j be difficult in most jurisdictions without specific enabling The Millbrae decision argues for the inclusion of permitted legislation.84 Courts are generally reluctant to restrict a limits of change in the preliminary plan. community's legislative power to change regulations in As this summary shows, the amount of PUD litigation is furtherance of the public health, safety, and welfare. Most relatively insignificant when compared to the rising flood- of the case law in this area derives from the subdivision tide of zoning cases. This might augur well for the drafter approval process, which is either a part of,or analogous to, of a PUD ordinance, were it not for the fact that PUD the PUD process. Typical of judicial attitudes is a 1969 is a small proportion of the total housing production. Maine decision,85 where the court held that preliminary It seems fairly evident that theoretical objections to approval of the subdivision plan did not prevent the PUD based on existing state zoning enabling acts have not municipality from subsequently making different require- been a major obstacle to the successful adoption of PUD ments of the developer. Only if there is statutory language ordinances, and that specific enabling acts, though helpful, binding the community to its approval or if the developer are not a sine qua non for the legal viability of local has made a significant investment in reliance on the ordinances.The aspects of PUD that have most often drawn preliminary approval,will'the courts protect the developer's the courts' condemnation have been provisions that vest interest. unfettered discretion in the approving government body, The Model Act, ASPO's 1966 report, and this report and actions of the approving body which violate either concur that the PUD ordinance should contain quantified limitations on its discretion found in the ordinance or more limits which indicate when elements of the PUD plan have general principles of due process. Recent cases indicate a been so changed that a complete reassessment and new new willingness on the part of the courts to discard the preliminary approval is required. Such standards help to traditional presumption of validity on legislative acts where delineate the responsibilities of the planning commission or they perceive the action of the legislative body to "be 54 essentially administrative in character. These courts have of landowners. Describing this phenomenon in the early acknowledged that many zoning actions carried out by the reports on PUD a decade ago, commentators dealt with local legislative body, and particularly PUD permissions,do the problem by emphasizing the process element of PUD not prescribe rules of general application, but in reality approval and the need for procedural requirements. This ad- ' rate and allocate the property rights of a limited set summary of PUD litigation underscores that concern. Notes L Goldston and Scheuer,"Zoning of Planned Residen- in California reviewed in Hagman, Larson and Martin, Cali- tial Developments," 73 Harvard Law Review 241 (1959); fornia Zoning Practice §§6.61-6.73 (1960). Citations to Lovelace, "Zoning for Large-Scale Developments," 14 court decisions also indicate 'the location of abstracts of r, Zoning Digest 129 (May 1962); Bair, "How To Regulate decisions in ASPO Zoning Digest as above. Planned Unit Development for Housing-Summary of a 26. Goldston and Scheuer, "Zoning of Planned Residen- Regulatory Approach," 17 Zoning Digest 185, 221 (June- tial Developments," 73 Harv. L. Rev. 241, 256(1959). July, 1965); "Symposium: Planned Unit Development," 27. American Law Institute, A Model Land Develop- 114 University of Pennsylvania Law Review 3-136 (1965) ment Code §§ 2-101(1), 2-102(Apr. 24, 1970). [contains six articles] ; Aloi, "Legal Problems in Planned 28. Id. at §2-303 et seq. Unit Development," 1 Real Estate Law Journal 5 (Summer, 29. Id-at §2-101 (3). 1972); Mandelker, Controlling Planned Residential 30. Id., note following §2-101 at p. 29. Developments(Chicago: ASPO, 1966). 31. Id. at §4-205 (4). j 2. Urban Land Institute [ULI], Legal Aspects of 32. A Standard State Zoning Enabling Act §2 (U.S. 1. Planned Unit Residential Development, Tech. Bull. 52, Pt. Dept. of Commerce, 1926). The note following this lan- 11, Model State Enabling Act with Commentary, p. 65 guage in the SZEA is illuminating: "This [provision] is im- i. (1965). portant, not so much for legal reasons as because it gives 3. Id. at 68. notice to property owners that there will be no improper .i 4. N.J. Stat. Ann. §40:55-44 et seq. (1967). discrimination, but that all in the same class shall be treated 5. ULI,Model Act,supra n. 2, at 5. alike."Id., in. 19. '4 6. N.J. Stat.Ann. §40:55-66. 33. Id., §3. E 7. ULI Model Act, §3(a)(2), supra n. 2, at 70; and 34. 11 Cal. App. 3d 768, 90 Cal. Rptr. 88, 23 ZD 49 Commentary at 71. (1970). k 8. N.J. Stat. Ann. §40:55-57(a)(2). 35. Id. at 772, 90 Cal. Rptr.at 92. 121 N.J. Super. 409, 297 A.2d 583 (1972). 36. Prince George's County v. M & B Construction ; Id., 297 A.2d at 587. Corp., 297 A.2d 683 (Md. 1972). 11. N.J.Stat. Ann. §40:55-56(f). 37. SZEA, supra n. 32, §3. The note following this 12. Purdon's Pa. Stat. Ann. §5 3:10701 et seq. (1968). phrase indicates that its intention is to ":. . prevent hap- 13. Conn. Gen. Stat. Ann. §8-136 et seq. (Supp. 1973). hazard or piecemeal zoning. No zoning should be done 14. Kans. Stat. Ann. §12-725 et seg. (Supp. 1972). without such a comprehensive study."Id. in. 22. 15. Kans. Stat. Ann. §12-728(a)(2)and(3). 38. Anderson, American Law of Zoning Vol. 1, §5.02 16. Advisory Comm'n on Intergovernmental Relations, (1968). New Proposals for 1970: ACIR State Legislative Programs 39. Id. at §5.04. §31-36-00(1969). 40. 401 Pa.211, 164 A.2d 7, 12 ZD 359(1960). 17. Colo. Rev. Stat. §106-6-1 et seq. (1972). 41. Donahue v. Zoning Board, 412 Pa. 332, 194 A.2d 18. Nev. Senate Bill No. 126 (April 19, 1973), amend- 610, 16 ZD 40 (1963); Cbeney v. Village 2 at New Hope, ing Title 22,Nev. Rev. Stat. Inc., 429 Pa.626, 241 A.2d 81, 20 ZD 178(1968). 19. N.Y. Town Law §281 (McKinney 1966); N.Y. 42. Cheney v. Village 2 at New Hope, Inc., 241 A.2d Village Law §179-p (McKinney Cum. Supp. 1972); N.Y. 81, (1968); for comments on the decision see Zucker and Gen. City Law §37 (McKinney 1966). A Planned Unit Wolffe, "Supreme Court [Pa.] Legalizes PUD: New Hope Development Bill based on the Model Act was introduced from New Hope," 2 Land-Use Controls No. 2 at 32(1968). in the New York State Senate in 1971 as Bill No. 5324-A. 43. Marino v. Harrison Township, 1 Pa. Cmwlth. 116, 20. Burn's Ind. Stat.Ann. §53-756(7)(1968). 274 A.2d 221, 23 ZD 311 (1971). 21. E. Bassett, "Laws of Planning Unbuilt Areas," in 44. 254 A.2d 914, 22 ZD 1 (Conn. 1969). "Neighborhood and Community Planning," Regional 45. Rodgers v. Village of Tarrytown, 302 N.Y. 115, 96 Survey Vol. VII, by the Regional Plan of New York and Its N.E. ,2d 731, 3 ZD 35 (1951); Daum v. Meade, 318 Environs, pp. 309-316 (1929). N.Y.S.2d 199, 23 ZD 307 (N.Y. Sup. Ct. 1971), aff'd 323 22. Wisc. Stat. Ann_ §62.23 (7)(b) (Cum. Supp. 1973). N.Y.S.2d 670, motion for leave to appeal denied N.Y.S.2d 23. Ohio Rev. Code §§303.022, 519.021 (Jan. 23, 463, 273 N.E.2d 315 (1971). 1972). 46. 493 P.2d 163, 24 ZD 196(Ore.App. 1972). 24. Ill. Rev. Stat. ch. 24, §11-13-1-1 (1971). 47. Id. at 172. PUD was presumed valid by a California court in 48. For a discussion of the floating zone technique as a e Assn for Residential Survival v. Millbrae, 69 Cal. means of implementing PUD, see Aloi, "Legal Problems in 251, 21 ZD 26 (Cal. Ct. App. 1968); uniformity Planned Unit Development," 1 Real Estate L.J. 5, 18 requirement held not inconsistent with rezoning for PUD in (Summer, 1972). Orinda Homeowners Committee v. Bd. of Supervisors, 11 49. Huff v. Bd. of Zoning App., 133 A.2d 83, 92 ZD Cal. App. 3d 768, 90 Cal_Rptr. 88,23 ZD 49(1970);PUD 217 (Md. 1957) [light industrial zone] ; Costello v. Sieling, 55 161 A.2d 824, 13 ZD 351 (Md. 1960) [trailer park zone]; 64. Anderson, American Law of Zoning Vol. 1, Beall v. Montgomery County Council, 212 A.2d 751, 18 §§2.14, 2.15 (1968). ZD 6 (Md. 1965) [high-rise residential zone]; Bd. of 65. ULI, supra n. 2, at 67-8. See also Babcock and County Comm rs v. Tipton, 222 A.2d 701, 19 ZD 136(Md. Bosselman, "Suburban Zoning and the Apartment Boom," 1966) [trailer park zone] ; Bujno v. Montgomery County 111 U. Pa. L. Rev. 1040, 1088(1963);Mandelker,"Delega- i Council, 220 A.2d 126, 19 ZD 139 (Md. 1966) [planned tion of Power and Function in Zoning Administration," residential high-rise] ; Knudsen v. Montgomery County 1963 Wash. U.L.Q. 60;D.Mandelker, The Zoning Dilemma G Council, 217 A.2d 97, 18 ZD 233 (Md. 1966) [townhouse 70-77(1971). ff zone] ; Escbinger v. Bus, 242 A.2d 502 (Md. 1968) [mari- 66. 507 P.2d 23(Ore. 1973). f time zone] ; Bigenho v. Montgomery County Council, 237 67. Smith v. County of Washington, 406 P.2d 545, 547, A.2d 53, 20 ZD 365 (Md. 1968) [270-acre tract rezoned 18 ZD 62 (Ore. 1965);Jebovah's Witnesses v. Mullen, 330 from residential to high-rise, commercial and industrial P.2d 5 (Ore. 1958). floating zones]. 68. Roseta v. County of Washington, 458 P.2d 405,21 i 50. See Linowes and Delaney, "The Maryland Change- ZD 255 (Ore. 1969). Citing Roseta, an intermediate appel- Mistake Rule in Zoning: A Mistake That Should Be late court in Oregon expanded this exception to reach the Changed," 1971 Land-Use Controls Annual 117. rezoning for one phase of a large PUD in Frankland v. City 51. Moore v. Boulder, 29 Colo. App. 248, 484 P.2d of Lake Oswego, 493 P_2d 163, 24 ZD 196 (Ore. App. 134, 23 ZD 377 (1971). 1972). 52. 302 N.Y. 115, 96 N.E. 2d 731, 3 ZD 35 (1951) 69. Fasano, supra n. 48, at 26. A federal court in the (garden apartments]. District of Columbia reached essentially the same conclu- 53. DeMeo v. Zoning Commission of Bridgeport, 167 cion about a zoning amendment granting preliminary PUD A.2d 454, 13 ZD 238 (Conn. 1961) [garden apartment approval. The action was adjudicatory rather than legisla- zone] ;Hawkes v. Town Plan and Zoning Commission, 240 tive and a "contested case" to which,the provisions of the A.2d 914, 20 ZD 313 (Conn. 1968) [apartment zone]; D.C. Administrative Procedures Act applied. Capitol Hill Sheridan v. Planning and Zoning Commission, 254 A.2d Restoration Society v. Zoning Commission, 287 A.2d 101, 914, 22 ZD 1 (Conn. 1969) [industrial zone] ; Stiles v. 24 ZD 221 (D.C.App. 1972). Town Council of West Hartford, 268 A.2d 395, 23 ZD 57 70. Comment, "Zoning Amendments-The Product of (Conn. 1970) [regional shopping center];Lurie v.Planning Judicial or Quasi-Judicial Action," 33 Ohio St. L.J. 130, and Zoning Commission, 278 A.2d 799,23 ZD 326(Conn. 137(1972). 1971) [corporate headquarters]. 71. Fasa no,supra n. 48,at 29, 30. 54. Noonan v. Moulton, 204 N.E. 2d 897, 17 ZD 250 72. 485 P.2d 565, 23 ZD 370(Ariz.App. 1971). (Mass. 1965) [ordinance provided for apartment zone not 73. 232 A.2d 674, 19 ZD 421 (N.J.App. 1967). located on zoning map] ; Senkarik v. Att'y General, 257 74. 114 N.J. Super. 270, 276 A.2d 156, 23 ZD 347 N.E. 2d 470, 22 ZD 310 (Mass. 1970) [floating apartment (1971). zone by special permit authorized spot zoning]. See discus- 75. 507 P.2d 23 (Ore. 1973). sion supra, p.49. 76_ Id. at 30. 55. Eves v. Zoning Bd. of Adjustment of Lower 77. 99 Cal. Rptr. 745, 492 P.2d 1137, 24 ZD 155 Gwynedd Township, 164 A.2d 7, 12 ZD 359 (Pa. 1960). (1972). The standing of nonresidents to challenge a munici- See discussion,supra notes 40-43. pality's zoning action on a PUD apparently was not an issue 56. Marino v. Zoning Hearing Bd. of Harrison Town- in Franklin v. City of Lake Oswego, 493 P.2d 163, 24 ZD ship, 247 A.2d 221, 23 ZD 311 (Pa. Commonwealth Ct. 196 (Ore.App. 1972). 1971); Y.D. Dugout, Inc. v. Bd.of Appeals of Canton, 255 78. ULI, Legal Aspects of Planned Unit Development, N.E.2d 732, 22 ZD 383 (Mass. 1970) [commercial uses Tech. Bull. 52 Pt. 1, pp. 50-58 (1965),.Mandelker, Con- permitted in certain residential districts by special permit trolling Planned Residential Developments 26-33 (ASPO, subject to site plan review and reasonable conditions]. 1966). 57. Chandler v. Kroiss, 190 N.W. 2d 472, 23 ZD 572 79. 263 A.2d 833, 22 ZD 305 (Md. 1970). (Minn. 1971). 80. Montgomery County v. National Capitol Realty 58. 472 P.2d 550, 23 ZD 2(Wash.App. 1970). Corp., 297 A.2d 675 (Md. 1972). 59. See, e.g., City of Des Moines v. Lohner, 168 N.W. 81. Aloi, "Legal Problems in Planned Unit Develop- 2d 779, 21 ZD 284 (Ia. 1969) [city council not authorized ment," 1 Real Estate L.J. 5 (Summer 1972). to grant to reject special exceptions where enabling act 82. Id. at 42. designates board of adjustments exclusive body to act on 83. 79 Cal.Rptr. 872, 21 ZD 212(Cal.App. 1969). such permits]; and Sbanbour v. Oklahoma City, 422 P.2d 84. See Krasnowiecki, "Planned Unit Development: A 444, 19 ZD 128 (Okla. 1967) [planning commission could Challenge to Established Theory and Practice of Land Use not make recommendation on special use to city council] ; Control," 114 U. Pa. L. Rev. 47,95 (1965). modified in Appeal of Moreland, 497 P.2d 1287 (Okla. 85. Boutet v. Planning Board of City of Scao, 253 A.2d 1972) [special exception not subject to same hardship cri- 53 (Me. 1969). teria as variance, but board of adjustment cannot function 86. 69 Cal. Rptr. 251, 21 ZD 26(Cal.App. 1968). as a legislative body, and rezoning must precede action by 87. Id. at 25. Compare Millbrae with Margulis v. Lind- board on PUD]. say, 31 N.Y.2d 167, 286 N.E.2d 724, 24 ZD 395 (1972), 60. See, e.g., Conn. Gen. Stat. §8(2) (Supp. 1973); where modifications to a proposed housing project which N.Y.Town Law §281 (McKinney 1966). included a shift from seven mid-rise to three high-rise build- 61. 242 A.2d 781 (Conn. 1968). ings were not a change of the "essence" of the project 62. 271 A.2d 105, 23 ZD 103 (Conn. 1970). requiring new hearings and did not require action by the 63. 244 So.2d 766, 23 ZD 385 (Fla. App. 1971). legislative body. 56 Chapter 7. Conclusion • From a regulatory point of view PUD is a process and exception to this generalization. Thus, in closing we would not a particular product. It is not possible or even desirable like to discuss some points which we could not deal with at to have particularly detailed development standards for any length. PUDs. It is not possible to define "good" development PUD and Planning. Far too many suburban jurisdictions through regulations. are simply reacting to PUD development plans without any • PUD is not a panacea for all the problems of urban clear idea of how those proposals relate to the community's development. It will not cure urban sprawl,does not neces- comprehensive plan. In some communities the plans are sarily reduce the cost of housing, and obviously cannot nonexistent; in others adopted plans are too old and obso- solve problems beyond a particular project's boundaries. lete. This is particularly true in terms of the way in which ;!' • While PUD may not solve all development problems, plans are related to shifts in the housing market in most it is a better approach to land development at the project metropolitan areas—that is,demands for a far larger propor- level• tion of multifamily housing. In addition,far too many com- ;a • Considerably more negotiation takes place between munities do not have the remotest idea of how their t PUD developer and community than under traditional month-to-month development decisions relate to the under- zoning and land subdivision regulation. If development lying utility and public service systems. standards are made more specific to prevent abuses of the This is a sorry state of affairs for which there is little Q negotiation process, the result would unquestionably be excuse in a technical sense. We did find jurisdictions who •entional development. Carefully drafted procedural demonstrate the proposition that when planning works, it lines are only partially helpful in preventing abuses. works. More specifically, a number of communities have a '! Developers who choose to develop PUDs engage in far very good grasp of how PUD relates to planning. Thus, more planning and hire many more experts than they do in comprehensive plans are further detailed into district or it conventional development. The PUD ordinance should area plans. Within district or area plans measurements of ensure that all PUD projects receive this higher degree of present land use and population density are made,the exist- planning. ing and proposed public services—especially utility lines— , • The degree of design review in PUD ordinances makes are delineated, and plans are prepared which coordinate 9I it mandatory that public bodies have professional personnel land use and services. In these communities plans mean reviewing development plans. PUDs should not be reviewed something. The general and district plans are adopted,by by laymen alone. planning commissions and legislative bodies with a sense of • The PUD process points up the need for a single commitment, demonstrated by planning commissions and development ordinance. The concept of a separate zoning legislative bodies during the course of reviewing PUDs. ordinance and land subdivision regulations is obsolete. Moreover, in such communities public works departments • Some PUD ordinances are so specific that they effec- make the detailed plans for functional systems and carry tively prevent the flexibility which ought to be inherent in out public works projects with a good sense of population the PUD process. and land use projections for particular planning areas_When • PUD ordinances can be a lot simpler by merely being these communities review PUDs, of whatever size or den- more clearly written, logically organized, and better out- sity, they have a relatively good grasp of how land-use in-, lined. tensities and population densities fit into existing and • Processing time for PUDs is entirely excessive, and it planned systems. Clearly, this is good planning and good adds to the costs of development,which in turn adds to the public administration. Moreover, it provides us with a cost of housing. greater sense of confidence in public officials who must • Legal problems are not particularly troublesome in engage in a considerable amount of discretionary decision relation to PUD. making in the PUD process. • Finally, in many communities, the general public will Mandatory PUD. The idea of making PUD a mandatory be against new development of any kind no matter what development in certain areas has been proposed. As men- the quality of the development may be. tioned earlier, neither planners nor developers were par- ticularly enthusiastic about the idea. Nevertheless, some -rvations Beyond This PUD Study jurisdictions are adopting policy statements which indicate No matter how carefully a research proposal is designed that PUD is a preferred method of development in some and conducted, questions and issues inevitably arise during planning districts. A few jurisdictions are even actively con- the conduct of the research which cannot be addressed sidering the possibility of mapping PUD zones on the because of time and budget limitations. This study is no zoning map in advance. At this point in time we simply do 57 not know enough about the potential results of such re- Future Strengtb of Homeowners'Associations. At the quirements, nor of the legal implications. It should be said, present time the homeowner association(HOA)is a thriving however, that the idea of making PUD mandatory, in con- institution which is growing in popularity throughout the junction with other trends in development administration nation_ We offered both planners and developers options to (especially the requirement for site planning review for a identify problems, yet discovered no significant ones. Pro- large number of uses),begins to point us in the direction of fessionalism in the management of HOAs seems to be in- the British system of total review of all development pro- creasing and some development firms have set up either posals. subsidiaries or departments which then are hired by HOAs PUD and New Towns. When is a PUD so large that it is a to manage the day-to-day business affairs. In addition, a new town?There is no exact answer.Theoretically,at some number of completely independent business firms have point in size, scale, and complexity, a PUD is no longer a been springing up to specifically provide management ser "residential development," but is in fact a new town. In vices for HOAs. this report we have tended to focus on PUD at the smaller We admit the possibility that we are being overly pessi- scale because we believe that is the scale at which the vast mistic, but we wonder about the distant future.Most HOAs majority of PUDs are being built in the vast majority of are of relatively recent vintage and are now managing rela- jurisdictions. Most of the literature on new towns is not at tively new facilities. What, if anything, might happen when all focused on regulatory aspects of development. However, the community facilities of the PUD begin to deteriorate a recent book (Robert W. Burchell and James W. Hughes, simply because of age? Will HOAs and their members be Planned Unit Development: New Communities American able to pay the substantial development costs involved in Style, Rutgers University Center for Urban Policy Research, major renovations? Will public bodies be asked to step in 1972)does have a PUD regulatory focus. and maintain these facilities? We do not know the answers, Metropolitan and State Review. At the present time but such concerns do tend to impel some local jurisdictions legislation on land-use policy is being considered by the to have development standards (especially for streets) U.S. Congress. If enacted,such legislation will encourage(if which are "high" enough so that if the public is ever re- not require) a far greater role for state government in the quired to take over maintenance, it can be done with land planning and development process. What is of rele- economic efficiency. Finally, some planners think out loud vance to PUD about this emerging interest in land-use about the time when the "filter down" process begins to policy is that the concepts of "developments of state or work in present PUDs. If lower-income groups begin to regional benefit" and "areas of critical concern" may in- move into older PUDs in the future, will they be able to clude large PUDs. At the present time in the majority of afford to pay for high levels of service7 states only new communities with federal assistance are being reviewed at the metropolitan and state level through the A-95 process. It is far too early to risk a prediction Educating the Public on PUD concerning the number of states that might define large Our study suggests that the general public doesn't under- PUDs as areas of critical concern. What can be said at this stand PUD. The result in suburbia is that what is not under- point is the possibility that metropolitan and state review stood is therefore to be feared and opposed. The building might increase the chance of more carefully relating PUDs industry is aware of this situation and has responded in a to planning policies, and the probability that involving number of ways. For example, the Urban Land Institute more review authorities will increase processing time. has published a fully-illustrated report aimed at the general Low- and Moderate-Income Housing in PUDs. During public (PUD: A Better Way for the Suburbs) and the the past couple of years a number of planning agencies and National Association of Homebuilders, in cooperation with governmental units have been considering and experi- the ULI, has prepared a slide presentation with an ac- menting with requirements that a certain number or pro- companying recorded tape cassette. One of the home- portion of low- and moderate-income housing units be con- builders' associations in California has even produced a structed in PUDs. Clearly, this is an important issue but it movie on PUD that is shown to local civic groups. (This has not been addressed in this study because other research same association also has produced a movie on apartments.) on the topic was being conducted simultaneously within How much effect these efforts have is problematic.The ASPO. The results of that research have been published by public's attitude toward PUD is difficult to separate from ASPO in Lower Income Housing: The Planners'Response attitudes about growth and nongrowth issues, apartments by Mary E. Brooks (Planning Advisory Service Report No. and townhouses in the suburbs, taxes, and the degree of 282.July-August 1972). trust in planners and government officials_ Public Access and PUDs.There is an element of the PUD Public planners should educate the public about PUD which is disturbing as a public policy issue,yet an issue for but, as a practical matter, this must be done prior to a which we do not have answers.That is, many PUDs contain specific public hearing on a particular PUD. Dispassionate commonly owned open spaces, facilities, and even streets, discussion of new concepts can't very well take place in which are for the exclusive use of the residents of the PUD. emotion-charged hearings. Moreover, as an emotional response to the "crime in the The suburban planner needs to be out talking with the streets" issue, some PUDs have gates and guards at the public on a continuous basis—and not just about PUD.The entrances presumably to _keep out burglars and other planner needs to be telling the public how urban and subur- "undesirables." While matters of the PUD residents' life ban development patterns are changing and the shifts in the styles may not be public policy, the provision of public structure of the housing market; how they affect suburbs facilities by public authorities is. Local governments may be which originally contained only single-family dwellings; tempted to avoid or shirk responsibility to construct and how the suburbanization of jobs affects housing needs;and operate public recreation facilities that are open to the how land-use regulation characterized by flexibility relates public as a whole. to comprehensive planning. 58 i }fi4 i Appendix: The Land-Use !f Intensity Rating System ,Y In revising its land planning standards for residential gives individuality. Mixtures of low and high buildings and development in 1963, the Federal Housing Administration the use of staggered setbacks and broken roof lines can.also s introduced a sophisticated and flexible set of regulations be used to provide variety. r3 using the concept of "land-use intensity ratings." These 4. Diversity of housing types is closely related to indi- new regulations will have considerable influence on local viduality. While many suburbanites still believe that the in- land-use controls, particularly in planning for multifamily trusion of apartments into a single-family neighborhood # dwellings. will disrupt the area and depreciate property values, such Before analyzing the new FHA standards, however, it is mixtures have been deliberately planned by some de- useful to sunwrArize another FHA publication, Intensity velopers of large-scale projects. A portion of the project 4 of Development and Livability of Multifamily Housing might contain single-family dwellings, another part might Projects, by Robert D. Katz.* In this excellent study, Katz be set aside for garden apartments, and still another might studied selected high-rise and central city apartment include a medium- or high-rise building, with even a projects in Europe and the United States but his generaliza- shopping center worked into the design. Such mixed-type tions about site planning also apply to the lower-density developments, incidentally, have proved very successful, development taking place in American suburbs. even more successful than most single-type projects. Much of the opposition to apartments in suburban areas 5-7. Location, proximity to community facilites, and is probably due to the deplorable quality of building and safety and health have already been discussed more fully in 'esign of far too many projects constructed in the last a previous section of this report. Too many municipalities ars. The identification of 12 aspects of quality and still zone left-over parcels only for apartments. In effect,a ; 5 ,ty by Katz ought to be considered by local officials greater number of people per acre are forced to live in the developing land-use controls and in reviewing plans for poorest locations for high-density housing. Not only is apartment projects. The site planning elements are not so housing quality usually lower from the very start in such exact that a checklist cannot be constructed, and it can be circumstances, but an area of incipient blight is being used as a general guideline to judge some of the qualitative created. aspects of apartment projects: privacy;usable open space; 8, 9. Circulation and automobile storage are related individuality; diversity of housing types; location; prox- problems and in turn determine the type and usefulness of imity to community facilities; safety and health; circula- open space in a development. Ample parking should be tion; automobile storage;blending of new housing into its provided, of course, but massive parking lots should not be surroundings;site details;views from and to a site. allowed to dominate the site or to split yard space into 1. Privacy is often difficult to achieve in apartment unusable bits and pieces. If at all possible, parking areas r' developments, yet if it is present the quality of the environ- should be physically or visually separated by fencing,walls, ment improves considerably. Site planning techniques for landscaping, or changes in level. Pedestrian access should be privacy include the use of screen walls or heavy landscaping provided to front and rear building exits, and sidewalks to create private outdoor spaces_ Buildings may be sited should be separated from parking areas, access drives, and facing a court, or have wings jutting out to create private delivery entrances. patios. 10. The blending of new apartment structures will not 2. Related to the need for privacy is the provision of normally present problems in suburbs, except in older in- f adequate usable open space for outdoor activities. Such lying cities that are experiencing development on bypassed spaces do not include parking areas or narrow sideyards. lots, large or deep lots, or in some cases where older houses Areas for both active and passive recreation should be pro- are being replaced by single apartment buildings. vided to match the age characteristics of the apartment 11. Site details will be as important in a suburban loca- dwellers. tion as in a city. Imaginative use of lighting, paving, land- 3. Individuality of the buildings in the project can be scaping, and building facades will add significantly to the achieved by different external materials, colors, landscape quality of multifamily housing. Terraces, development elements,and other design details. For example,row houses around a swimming pool or other recreation area, and the den apartments, set off from each other structurally, provision of imaginative playground equipment and play so vary in color or materials. Providing small private sculpture also increase attractiveness. for each dwelling unit creates another feature that 12. In the suburban landscape views to and from the • Robert D_ Katz, Intensity of Development and Livability of site of most apartment dwellers are limited to the site itself Multifamily Housing Projects. Technical Study TS 7.14. (Washing unless they five in tall buildings.The tenants are more likely ton: FHA,1963.) to be looking at an industrial or highway strip commercial 59 development than will the single-family dweller in the same of floor-area ratios, rather than absolute dimehsions. This community. This is one result of a zoning policy that per- concept is best 6troduced by an example of the use of the mits apartments only adjacent to commercial and industrial Land Use Intensity Standards chart (Figure A1). areas. As this report has previously emphasized, it is not A land-use intensity rating between 0.0 and 8.0,assigned proper to situate apartments near the worst areas of the by the FHA to a particular site, is based on character of the community. . neighborhood and community. In Figure Al this rating Perhaps more important to the suburbanite (and to the appears on the horizontal axis and is read off at the bottom suburban official trying to make the decision) is the view of the chart.The ratios permitted on the site are then deter- from the single-family home or the street to the new apart- mined by checking along the vertical axis representing the ment area. The proper blending of apartment buildings into assigned land-use intensity rating until that line intersects the hitherto single-family landscape of suburbia is impor- each of the curves, then reading off the ratio on the vertical tant and needs careful consideration,which probably means scale, indicated along the left margin. careful review of site and architectural plans,by local plan- For example, suppose that the rating of a particular site ning authorities. is 5.0. Reading the figures off in order, from the lowest to the highest,the applicable ratios will be: Federal Housing Administration Land-Use Minimum recreation space ratio 0.13 Intensity Ratings Maximum floor area ratio 0.4 The standards of the Federal Housing Administration Minimum occupant car ratio 1.1 (FHA) for residential development are more complicated Minimum living space ratio 1.1 than most existing zoning ordinance provisions for multi- Minimum total car ratio 1.25 family dwellings, but they may be understood with a little Minimum open space ratio 1.8 study. Planners and public officials should examine the new The land-use intensity rating correlates land area, floor' standards closely in drafting and administering local land- area, open space, livability open space, recreation space, use controls. Because many persons believe that the new parking requirements, types of structures, and a range of system may revolutionize zoning, a full exposition is given. densities. Definitions of some of the terms used are as The standards cover more environmental and site planning follows: Floor Area (FA) is the sum of the areas for resi- elements than will be found in zoning ordinances,and they dential use on the several floors of a building or buildings, allow far more flexibility in site layout and in mixing measured from the faces of the exterior walls. Land Area housing types. Thus, they provide a sophisticated planning (LA) is the site area for residential use within the property tool in evaluating requirements for apartments in the lines, plus half of the abutting street row, plus half of any suburbs. abutting permanent open space (with certain limitations). The following presents a brief review of some of the Open Space (OS) is the total horizontal area of all un- basic elements of control for apartments,the specific objec- covered open spaces plus one-half of the total horizontal tives of the new FHA standards, and how they differ from area of covered open spaces(e.g.,roofed porches, carports). traditional zoning controls. Livability Open Space (LOS) is the open space, minus the Traditional Zoning. The typical suburban zoning ordi- car area within the uncovered open space,minus one-half of nance provides for residential districts different from each any covered car space that was previously eligible and other in density and in type of residence permitted(single- credited in part to open space. family, two-family, multiple-family). Mixtures of structural These are simplified definitions, and the actual regula- types at the same density are rarely permitted (although tions, which are contained in Land Planning Bulletin No. 7 advocated by many experts) except for the cumulative (published in 1964 by FHA), should be examined for all effect of allowing single-family uses in two-family and the exceptions, partial credits, and definitions of what can multiple-family districts. Density is expressed in minimum be counted on roofs, porches,or balconies.The regulations lot area per family or dwelling unit, or by merely a state- also give definitions for the various ratios. Thus, there is a ment of the number of dwelling units permitted per acre. definition for open space and another for open space ratio. Occasionally, density is based on a room or bedroom count. The floor area ratio is based on land area, the car ratios on For example, minimum lot area for one bedroom is set at number of dwelling units;all the other ratios are based on 1,000 square feet; for two bedrooms, 1,500 square feet; floor area. and for three or more bedrooms, 2,000 square feet. Thus, The most critial step in using the land-use intensity the actual density expressed in dwelling units will vary ratings is the actual assignment of a specific rating to the depending upon the size of apartment units constructed on property where the project will be built.Once this is done, a particular site. building and site requirements fall into place. Some ordinances also regulate density and bulk through Application of Intensity Ratings. Because of the impor- the use of floor area ratio standards_ Height,budding g cover- lance of the system, it is well to understand some of the age, and rear, front, and side yards are customarily regu- basic ideas that make up the rating system and the process lated, as is the space between buildings. Parking require- of determining the rating of a particular housing site. One ments are also common. Less common are requirements for purpose of the ratings is to ensure that new residential usable open space, even though open space (in addition to building developments will fit into the particular type of factors related to density) is perhaps the major element in community as well as into the specific neighborhood within residential environment that makes it pleasant, comfort- the community. Figure A2 is a theoretical illustration of a able,safe, healthful,and desirable. typical community building and land-use pattern. Inten- Basic Concept of FHA Standards. In almost all cases sities (indicated by the density of shading) are greatest at zoning requirements are related to land area but the FHA the center, taper off in the transition and corridor areas, stapdards, however,are based primarily upon floor area. In and finally level off in the outlying area. In Figure A3 the addition, most of the FHA standards are expressed in terms bottom portion shows the range of intensities that FHA 60 1 STORY OETACIIED I STORY Town HOUSE RANGE OF OPTIMUM USE 2 STORY DETACHED 24 ST. 8.0 2 STORY TOWN HOUSE 12 STORY 7.0 2 STORY APARTMENT 6 STORY ape 3 STORY 7 S'0a 4.0 Floor Area Ratio (FAR) is maximum square OOF footage of total floor area permitted for 3.0 °,p — (tem each square foot of land area. f.f _ -� 2 STORY BUItBINO y _ __ y.: t_ I Sot COVER EAI.-LO ., 2.0 TOfa/IC i , SIORV -` O a,Raf%p I _'_�-� T� 1 gBUILDING I c`°Pdrif I I _ I - 1 lot COVER Car R i i r —'F A R.•L0 o to I of%o I - ' -� �- --- i ` I t 0.9 W.0.8 ' LAND AREA < — TCR 0.6 Total Car Ratio (Tca) is minimum number us 0.5 of panting spaces required for each living 4_0 O UNIT - _= . cR- Z 0.a Occupant Car Ratio(oca) u minimum num- i'' ber of parking spaces without parking-lime s ea SSR limits required for each living unit_ .4 0.3 pl \opc Open Space Ratio (osa) is minimum square F footage of open space required for each SSR square foot of floor area. 0.2 i ' Re`�eatianiSI I footage of n pace nvsquare ehicular outdoor space io (L3R) is minimum page � quired for each square toot of floor area. i Ratio r 0.06 0.07 Recreation Space Ratio (ass) is minimum 0.06 RSR square footage of recreation space required 0.05 for each square foot of floor area. 3.0 40 50 60 * . . . * * * 7.0 * 8.0 * *per gross acre for 4 units 8 units 16 units 32 units 64 units 128 unite per acre per acre per acre per acre per acre per acre 1089 sq.[t. Living Unit LAND-USE INTENSITY 1 FIGURE Al. Land-Use Intensity Standards 1 feels is suitable for various types of communities as w0l as with an intensity rating of 1.0, would be on a one-acre lot. general locations within them. Present and anticipated The three dimensions given in Figure A3-871.2-square feet, land-use patterns in the community presumably play a 1,089-square feet, and 1,452-square feet—are not based on heavy role in the FHA's determinations, as do land market standard building sizes. Rather, they are respectively one- factors. The FHA is interested in preventing either too great fiftieth- one-fourtieth, and one-thirtieth of an acre(43,500- or too low intensities in particular locations. A low inten- square feet). Because of this,they facilitate the preparation city rating can adversely affect the project through under- of the charts, and they are reasonably close to the floor use of the land, whereas a rating that is too high can lower area of a one-bedroom apartment, a two-bedroom house, livability and in turn lower the potential rental or sale value and a three-bedroom house. of the property- Once the rating is determined, Figures Al and A3 are The land-use intensity rating applies to the total land consulted to determine the permitted floor area and the area in a particular site. The rating scale appears in the first number of dwelling units that can be built on the parcel. column of Table Al. For each rating, 0.0 through 8.0, a This is based on the floor area of the individual dwelling floor area ratio is given as well as the floor area per gross unit and the size of the tract of land. Thus, on an acre of acre_ Density in living units per gross acre for two different land assigned a land-use intensity rating of 5.0, a builder size dwelling units, 1,089-square feet and 871.2-square feet, can place between 12 dwelling units of 1,452-square feet of 1 o given. It should be noted that for each full unit on floor area and 20 dwelling units of 871-2-square feet of ,tensity scale the density, measured in living units per floor area (see Figure A3).This is a gross density.The range acre, is doubled.The 0.0 intensity rating at the 544.5- of permitted net densities may also be found by computing square feet of floor area per acre may be visualized as a the area devoted to streets. Figure A3 shows the range in single-family dwelling of modest size-1,089-square feet of net dwelling unit density with 20 to 25 per cent of the land floor space—on a two-acre parcel. The same sized house developed to streets. 61 FIGURE A2. Typical Community Pattern General Area Corridor ® Transition Center It should be noted that FHA no longer uses net density Determining Suitable Intensity Rating. The step-by-step in reviewing projects. In the past this procedure often procedure to be followed by a local FHA office in deter- proved confusing, since at times public streets were counted mining a suitable intensity rating for a particular site will and private streets were not, or a proportion of the area of provide local officials with useful information for project abutting streets or open space might or might not be evaluation. The surroundings of the proposed development, counted. The new FHA minimum property standards for its relationship to the community, and the urban type of multifamily dwellings now take gross land area as the base the community are analyzed following the principles and for land-use intensity ratings_ In making any comparisons using the measurement devices described in FHA's Land with zoning ordinance densities, the reader should remem- Planning Bulletin No. 7 and in the revised provisions of ber that most frequently zoning provisions are based on net FHA's Minimum Property Requirements for Tbree or More land area;streets and alleys are not included. Living Units.The step-by-step procedure follows: FHA also uses benchmarks in determining the suitable 1. To relate the site to the urban type: (Figure A3) intensity rating for a particular development. These bench- marks are actual projects that have been built and subse- Determine the urban type in which the site is located quently compared and analyzed in terms of the rating scale. and find the group of range bars for that type at the Thus, the local insuring office will use examples of some bottom of Figure A3. Example: "Metropolitan Suburb." actual apartment developments that have a certain rating. A 2. To relate the site to the space pattern of the com- proposed development can then be compared to see if the munity: intensity and site planning standards are up to par with developments considered to be good ones. a) Determine the sector of the community space pattern TABLE Al.Land-Use Intensity Related to Floor Area and Density Density in Land Use per Gross Aire Land-Use Intensity Floor Area Ratio Floor Area(square feet) 1,089 square feet/ 8712 square feet/ (LIR) (FAR) per Gross Acre L.U. L.U. 0.0 .0125 544.5 .5 _625 1.0 .025 1,089 1.0 1.25 2.0 .05 2,178 2.0 2.5 3.0 0.1 4,356 4.0 5.0 4.0 0.2 8,712 8.0 10.0 5.0 0.4 17,424 16.0 20.0 6.0 0.8 34,848 32.0 40.0 7.0 1.6 69,696 64.0 80.0 8.0 3.2 139,392 128.0 160.0 62 I-ST.DETAGHE I-ST.TOWNw__ QANGE OF OPTIMUM USE 2••STORY DE TACHE Z4 5 2-ST. 12-STORY 2-5TORY AFT, FSTORY STO0.Y LIVING UNITS PLR ACRE FOR 871.2° DWELLING9 STREET 20-257.1 5.0 GK055 10.0 20.0 40.0 80.0 100.0 6.25 NET-8oZ 12.5 25.0 50.0 100.0 200.0 6•G6 MET-75% lj.'!2 26.64 53.28 106.5b 21�j.12 Ltyir4c. UMTS PER ACRE- -FoR I089"DWE.LLING (5TRE.ET ?0-,257.) 1 4.0 GR055g.0 16.0 32.0 64 0 128.0 5.0 NET-80Z 10.0 20.0 40,0 60.0 160.0 5. 3 iIET 75Zl0.6 11.3 42:6 85.3 170.6 LIVING UNIT'S PER ACM. FOR 14520,DWELLING (STREET 20-25%) I ` [4. .0 GROSS G.o 12.0 24.0 48.0 96.0 .75 r-427.801 7.5 15.0 30.0 60.0 120.0 0 NET-757o 8.0 16.0 32.0 64.0 128.0 c i Site Location Related to Urban Type Space Pa4ern LNTER I PPUML TRAN9tTioN GEN L-tZAL M ETROP0LI'TAN CITY r..ENTl.R T NstTtoN j CyENERAL METROPOLITAN SUDUR.b CENTER AN'a t ION G --NERAL HON - (-lF_TQ(JPOLIIAN CITY 4 1113 i t, TRANstTloPt ' GENERAL I CCNTLRNON_ME-T2OPOLITAN 3Ur-,UP. 3 q 5 6 7 8 t LAND" USE I NTEN5ITY w FIGURE A3. Typical Community Pattern in which the site is located and find its range bar within 3. To relate the site to common building types: the urban type found in Step 1 above. Example: "Cen- a) Using the range of intensity ratings found in Step 2c, ter." note at the top of Figure A3 under "Range of Optimum b) Note the land-use intensity ratings for that range bar. Use" the building range bars which are in that intensity Example: The 4.8 to 6.2 range. range. Example: For the 4.8 to 5.8 range, they are a ,insider that intensity range in relation to the inten- two-story townhouse or apartment in the lower end of tge appropriate for that particular community and the intensity range, three-story in the middle of the articular sector of that community. Narrow the range,and six-story at the upper end. range under consideration, or adjust it, as appropriate. b) Consider this and, if possible, narrow the intensity Example: Based on community and sector, the 4.8-6-2 range to be considered further. Example:The 4.8 to 5.8 range is narrowed to 4-8-5-8 for further consideration. range is narrowed to a 4.8-5-6 range- 63 Land-Use Intensity Rating LIR 4 11115 LIR 6 Dwelling units per acre 12.5 25.0 50.0 Lot area per dwelling(rounded) 3,485 square feet 1,740 square feet 870 square feet Floor area ratio 0.2 0.5 0.8 Maximum coverage 20 per cent 28 per cent 30 per cent Livability open space 52 percent 44 per cent 40 per cent Recreation space 3.6 per cent 5.2 percent 7.5 per cent Parking(including guest) 1.6/dwelling unit 1.2/dwelling unit 0.95/dwelling unit TABLE A2.Typical Zoning Standards 4. To relate the site to density: numerical degree of land-use intensity on the rating scale a) Note the gross and the net density for living units of which is most appropriate for the subject site for FHA typical sizes at the degrees of land-use intensity found in purposes; in other words, the intensity rating which Step 3b above. represents the maximum intensity acceptable to FHA for the current use of the site for FHA-insured housing. b) Consider this and if possible narrow the intensity Example: The 4.9-5.1 range of Step 7b is resolved at range to be considered further. Example:The 4.8 to 5.6 LIR 5.1 range is retained for consideration. 5. To compare with typical benchmarks: Because local officials will still have to work within the framework of zoning ordinances to control land-use and a) Note the characteristics of known projects charted as development standards, a translation of the land-use in- benchmarks in the Minimum Property Standards Manual tensity ratings is useful. A direct comparison with typical or by local analysis, particularly those in the intensity zoning provisions, however, can only be approximate,since range found in Step 4b above. Example:The 4.8 bench- the land-use intensity ratings are based on floor area and mark for the Lwo-story townhouse project is noted. zoning ordinance requirements on land area. Additional b) Consider this and, if possible, narrow the intensity difficulty is encountered in translating densities. The FHA range to be considered further. Example: An intensity standards use a loose standard of gross measurement of slightly higher than the 4.8 benchmark design appears dwelling units per acre, whereas zoning ordinances use suitable to the site. The 4.8-5.6 range of Step 4b of the exact and net densities. However, if certain assumptions are example is narrowed in the 4.8 to 5.2 range. made,it is possible to make rough conversions. As most of the problems with apartments in the suburbs 6. To relate the site to the land-use standards: (Figure A1) occur in metropolitan areas, the land-use intensity ratings a) Note the standards in Figure Al for the intensity of 4, 5, and 6 are chosen for illustration.Two assumptions range found in Step 5b;note the doubling of floor area are made: Density is net density based on 20 per cent of for each unit increase in Land-Use Intensity Ratio(LIR) the land area in streets with 871.2 square foot dwelling and the accompanying halving of livability space and units;and the maximum floor area is used. Table A2.illus- the reduction in car storage. trates these kinds of conversions. Except for the parking requirement, all requirements are stated in relationship to b) Consider this and, if possible, narrow the intensity land area. range for further consideration. Example:The 4.8 to 5.2 The requirements in this table do not differ materially range of Step 5b is retained for further consideration. from some typical suburban zoning ordinance provisions. 7. To relate to timing: The three intensity ratings presented are similar to three a),Note the time stage of the development pattern of separate residential zoning districts-low,medium,and high the particular community and the particular sector in density. The high-density example would be relatively rare ' which the site is located. Note the current market in a suburban community, but the other two represent demand for additional housing supply at the intensities typical densities for garden apartments and two-and three- under consideration. story walkup apartments now being built in many suburbs. Of course, these intensity ratings are only three of the b) Considering these factors, narrow the intensity range dozens that can be assigned by FHA to a particular project. found in Step 6b or adjust it downward if indicated by In choosing a particular rating FHA has a large amount of, the needs of timing and marketing for current use. flexibility in that there are as many ratings as lines on the Example: The 4.8 to 5.2 range of Step 6b is narrowed to graph. It is doubtful, and probably not desirable,that local a 4.9 to 5.1 range. agencies administering land-use controls will ever have zoning tools as flexible as the land-use intensity ratings. But 8. To determine numerical land use rating: the FHA approach is compatible with planned unit develop- Considering all the above and working within the range ment provisions found in many zoning ordinances and of a land-use intensity found in 7b, determine that should prove useful in administering such provisions. 64 s Bibliography f i Re Books Reports Anderson, Robert M.American Law of Zoning. Rochester, Huntoon, Maxwell O., Jr. PUD-A Better Way for the New York: Lawyer's Cooperative Publishing Co., Suburbs. Washington, D.C.: Urban Land Institute, 1968. See sections 5.16 (floating zone), 5.17(unifor- 1971. c mity requirement), 8.17 (cluster zoning), 8.20(con- ditional zoning), 8.38 (planned development dis- Mandelker, Daniel R. Controlling Planned Residential tricts). Developments. Chicago: American Society of Plan- ning Officials, 1966.Out of print. Burchell, Robert W.Planned Unit Development-New Com- munities American Style. New Brunswick, New Norcross, Carl. Open Space Communities in the Market Jersey- Rutgers University, 1972. Place: A Survey of Public Acceptance. ULI Technical Bulletin No. 57. Washington, D.C.: Urban Land Hagman, Donald G. Urban Planning and Land Development Institute, 1966. Control Law. St. Paul, Minnesota: West Publishing Co., 1971. See sections 62 (floating zones), 96 (un i- U.S. Department of Housing and Urban Development. formity),228 (definition-PUD), 229(PUD-history), Planned Unit Development With a Homes Associa- 237(PUD-subdivision requirements). tion. Land Planning Bulletin No.6.Washington,D.C.: U.S.Government Printing Office, 1970. _Larson,John H.,and Martin,Charles R. California ening Practice. California Continuing Education of Land Use Intensity. Land Planning Bulletin No. 7. ,e Bar, Practice Book No. 43. Los Angeles: Univer- interim edition. Washington, D.C.: U.S. Government sity of California, 1969.See sections 6.61-6.73. Printing Office, 1966. ! Haar, Charles M. Land-Use Planning. 2nd ed. Boston: Little Urban Land Institute.New Approaches to Residential Land Brown and Co., 1971. See pp. 191-196. Development: A Study of Concepts and Innovations. Technical Bulletin No. 40. Washington, D.C.: Urban Krasnowiecki, Jan. Z.Housing and Urban Development. St. Land Institute, 1961. !� Paul, Minnesota: West Publishing Co., 1969. See pp. 119-197. . Legal Aspects of'Planned Unit Residential Develop- ment. Technical Bulletin No. 52. Washington, D.C.: Lansing, John B., et al. Planned Residential Environments. Urban Land Institute, 1965. Ann Arbor: Survey Research Center, Institute for ; Social Research, University of Michigan, 1970. Wolffe, Lenard L. New Zoning Landmarks in Planned Unit Developments. ULI Technical Bulletin No. 62. Mandelker, Daniel R. Managing Our Urban Environment. Washington, D.C.: Urban Land Institute, 1968. 2nd ed. Indianapolis: Bobbs-Merrill Co., Inc., 1971. See pp. 1075-1106. Articles Ahrens, Clifford H. "Planned Unit Development."Missouri Rathkopf, Arden H. The Law of Zoning and Planning. 3rd Law Review 35 (1970): 27. ed. New York: Clark Boardman Co., Ltd., 1972. See Chap. 71, p.43. Aloi, Frank A. "Legal Problems in Planned Unit Develop- Roberts, E.F. Land-Use Planning New York: Matthew ment."Real Estate Law journal 1 (1972): 5. Bender, 1971. See section 20.02,pp.6-137-6-175. Babcock, Richard F., and McBride, David N. "An Intro- duction to the Model Enabling Act for Planned Resi- Whyte, William H. Cluster Development. New York: Ameri- dential Development." University of Pennsylvania can Conservation Association, 1964. Law Review 114(1965): 136. keeping with the focus of this report, this selected bibliog- Bair, Frederick H., Jr. "Applying Land Use Intensity to raphy emphasizes sources of direct use to ordinance drafters.Count- Public Regulation: Improved Controls for Residential less examples of specific PUD projects have appeared with great and Other Developments." Urban Land, April 1967, frequency for the past decade in House and Home,Journal of Home Building, and Urban Land. pp. 1-8. 65