Special and Environmental Land Development Regulations and Land-Use Incentives

This Chapter contains model statutes that address various special issues in land development regulation, including environmental issues. In a sense, this Chapter is a continuation of Chapter 8, which deals with more general or 'typical' land development regulations. The first three Sections are intended to implement particular elements of the local comprehensive plan, adopted pursuant to Chapter 7, Local Planning. The protection of, and regulation of development in, critical and sensitive areas and natural hazard areas is addressed in Section 9-101. Section 9-201 is concerned with transportation demand management. And Section 9-301 authorizes regulations for the protection of historic properties and districts and for the preservation of aesthetic design standards in specific districts.

The second group of statutes provides flexible tools for balancing the need to protect the public and the environment with the rights of property owners. The first two Sections in this group, 9-401 and 9-402, authorize transfer of development rights from one property to another and the purchase of development rights by the local government. The Section on conservation easements, 9-402.1, provides the legal instrument through which the transfer or purchase of development rights is implemented. And the mitigation Section, 9-403, authorizes local governments to permit development in otherwise-undevelopable critical and sensitive areas, such as wetlands, in exchange for the creation or restoration of replacement critical and sensitive areas elsewhere.

A final model statute, Section 9-501, authorizes land development regulations that provide density and intensity incentives for affordable housing, good community design, and open space donation.

Chapter Outline

9-101 Regulation of Critical and Sensitive Areas and Natural Hazard Areas

9-201 Transportation Demand Management

9-301 Historic Districts and Landmarks; Design Review

9-401 Transfer of Development Rights
9-402 Purchase of Development Rights
9-402.1 Conservation Easements
9-403 Mitigation

9-501 Land-Use Incentives for Affordable Housing, Community Design, and Open Space Dedication; Unified Incentives Ordinance

Cross-References for Sections in Chapter 9

Section No. Cross-Reference to Section No.

9-101 7-202, 7-209, 7-210, 8-102, 8-103, 8-104, 8-201, 8-502, 9-401, 9-402, 9-403

9-201 4-103, 8-103, 8-104, 7-205

9-301 7-214, 7-215, 8-102, 8-103, 8-104, 8-201, 8-604, 10-201

9-401 7-209, 7-210, 7-212, 7-215, 7-503, 8-102, 8-103, 8-104, 9-402.1
9-402 7-209, 7-210, 7-212, 7-215, 8-102, 8-103, 8-104, 9-402.1
9-402.1 9-301, 9-401, 9-402, 9-403
9-403 4-103, 7-209, 8-102, 8-103, 8-104, 9-101, 9-402.1, 10-201 et seq.

9-501 7-207, 7-214, 8-102, 8-103, 8-104, 8-201, 8-601, 8-602, 8-701, 10-201

Commentary: Regulation of Critical and Sensitive Areas and Natural Hazard Areas

[1]

Introduction

Critical and sensitive areas and natural hazards exist in every region of the country. The following model Section is designed to allow local governments to regulate and otherwise protect these locations on their own. It is important to note that in many instances a local government will desire to regulate and protect both types of area in a single regulation, or, because regulating and protecting both may take on different forms and require differing levels of information, adopt separate ordinances. This issue is presented in greater detail within the model Section below.

Critical and Sensitive Areas

Critical and sensitive areas are defined and discussed in Sections 7-101 and 7-209 of the Guidebook, and consist of areas that contain or constitute natural resources sensitive to excessive or inappropriate development.[2] These include aquifer systems, watersheds to fresh and coastal water systems, wellhead protection areas, inland and coastal wetland resources and critical habitat areas. As discussed within Section 7-209, determination and protection of certain critical and sensitive areas can only be accomplished, from both a practical and a legal perspective, if the local government has sufficient analytical support identifying the area and assessing its "critical" or "sensitive" nature.

For example, a regulation designed to protect surface water bodies must incorporate an accurate watershed delineation. The delineation must be identified on a map or maps of suitable scale and must reflect current scientific understanding regarding surface water flows and watershed dynamics. If the regulation is designed to limit contaminant transport to the water resource, the regulation must identify which contaminants are being regulated, and arguably provide a basis for the regulation's purpose. Similarly, a regulation designed to protect drinking water wells must be linked to an accurate delineation of the zone of contribution to the wells. The delineation must reflect current analytical technique and not, as has often been the case, be based on best guesses as to groundwater flow and capture area locations. And a regulation designed to protect wetland resources must incorporate an appropriate methodology for the identifying wetland species and reflect current science on the interaction between ground and surface water systems.

Natural Hazard Areas

Natural hazard areas are discussed in Section 7-210 and include those portions of the community that pose risk to the built and natural environment and public safety from a known or potential natural hazard or disaster. A natural hazard does not even have to be wholly natural; consider ground subsidence from old mines or landslides exacerbated by the clearing of trees from hillsides. These hazards and hazard areas are numerous and unique, and specific provisions will not be made in the model Section for each natural hazard. The organization of the model Section should still be helpful in guiding the drafting of regulations to manage particular natural hazard areas. For example, the model Section below is intended to serve as the statutory authority for floodplain management ordinances.

One reason why floodplain ordinances are important is that property owners in a floodplain cannot obtain insurance under the National Flood Insurance Program[3] unless the local government first adopts floodplain regulations that satisfy or exceed criteria established by the Federal Emergency Management Agency.[4]

Two Words Of Caution

Local governments seeking to protect critical and sensitive areas and/or natural hazard areas need to ensure that their regulations do not conflict with, or are otherwise pre-empted by, state or federal law. Indeed, a state may have a separate permitting procedure for certain types of critical or sensitive areas. For example, the New Jersey Freshwater Wetlands Protection Act completely preempts local government regulation of development affecting freshwater wetlands and establishes transition zones around wetlands in which limited or no development (no structures other than temporary structures of 150 square feet or less) can take place.[5]

It is also vital to note that while the ordinances authorized by this model Section are necessary to implement the critical and sensitive areas element and natural hazards element of the local comprehensive plan, they are not the only implementation measures. This is particularly true with the natural hazards element.[6] Emergency response plans, such as evacuation plans, must be prepared and their contents made familiar to the officials who will implement them. Building and property management codes must be updated and modified to make buildings and other structures less susceptible to damage from the natural hazard. Public infrastructure and capital improvements such as drainage culvert enlargement and strengthening of bridge and road supports may be needed. And ordinances managing post-disaster reconstruction must be adopted, or at least drafted, before a disaster strikes.

9-101 Regulation of Critical and Sensitive Areas and Natural Hazard Areas

(1) Every local government, except for those which may opt out pursuant to Section [7-202(5)(b) and (c)], shall adopt and amend in the manner for land development regulations pursuant to Section [8-103 or cite to some other provisions, such as a municipal charter or state statute governing the adoption of ordinance]:

(a) a critical and sensitive areas ordinance; and/or

(b) a natural hazards ordinance.

• Under Section 7-202(5), concerning elements of the local comprehensive plan, local governments may opt out of the natural hazards element requirement if they have no significant exposure to any natural hazard, and may opt out of the requirement for a critical and sensitive areas element if there are less than five acres of critical and sensitive area in the local government or if all critical and sensitive areas are within areas of critical state concern.

(2) The purposes of this Section are to:

(a) ensure an adequate quality and quantity of drinking water;

(b) ensure high quality ground and surface water systems;

(c) conserve the natural resources of the community, both living and non-living;

(d) prevent contamination of the natural environment;

(e) protect and conserve wetlands, their resources and amenities; and

(f) minimize the danger to life, health, and property due to fire, flood, earthquake, severe storms and other natural hazards.

(3) As used in this Section, and in any other Section where "critical and sensitive areas" and/or "natural hazard areas" are referred to:

(a) "Alteration of Land Form" means any human-made change in the existing topography of the land, including, but not limited to, filling, backfilling, grading, paving, dredging, mining, excavation, and drilling;

(b) "Best Management Practices" means the process of minimizing the impact of nonpoint source pollution on receiving waters or other resources, including, but not limited to, detention ponds, vegetative swales and buffers, street cleaning, reduced road salting, and public education programs;

(c) "Critical and Sensitive Area" means lands and/or water bodies that:

1. provide protection to or habitat for natural resources, living and non-living; or

2. are themselves natural resources; requiring identification and protection from inappropriate or excessive development;

• This definition is also provided in Section 7-101.

(d) "Critical and Sensitive Areas Overlay District" (CSAOD) means those land areas that constitute a critical and sensitive area, designated on a zoning map as overlay districts;

(e) "Floodplain Management" means the process of, and mechanisms for, minimizing the occurrence of, and damage from, flooding;

(f) "Habitat Management" means the process of, and mechanisms for, maintaining wildlife habitats and the diversity of species therein, including but not limited to fish, animals, birds, and plants;

(g) "Hazardous Material" means any substance defined as a "hazardous chemical" in 29 C.F.R. 1910.1200(c) as amended;

(h) "Hazardous Waste" means any [waste material or similar term] as defined in the [State Hazardous Waste Regulations];

(i) "Natural Hazard" means any condition or area, from any cause, designated in the natural hazards element of a local comprehensive plan as a natural hazard, including but not limited to:

1. hurricane or severe storm;

2. tornado;

3. tsunami or storm surge;

4. flooding;

5. earthquake;

6. landslide or mudslide;

7. volcanic eruption;

8. snowstorm or blizzard;

9. forest fire, brush fire, or other such fire; and

10. [other].

(j) "Natural Hazard Areas Overlay District" (NHAOD) means those land areas that contain and encompass a natural hazard, designated on a zoning map as overlay districts;

(k) "Mitigation Measure" means any mechanism designed to prevent, or reduce the extent and/or magnitude of negative impacts to a critical and sensitive area, or of the natural hazards associated with a natural hazards area. Mitigation measures may include, but are not limited to:

1. alteration of land form, or prohibitions or restrictions on alteration of land form;

2. prohibitions or restrictions upon the release of hazardous material, hazardous waste, and other substances into the ground, surface water, ground water, or atmosphere;

3. best management practices;

4. habitat management;

5. floodplain management;

6. stormwater management; and

7. tidal management.

(l) "Stormwater Management" means the process of ensuring that the magnitude and frequency of stormwater runoff does not increase the hazards associated with flooding, water quality is not impaired by untreated stormwater flow, and the integrity of riverine, estuarine, aquatic, and other habitats is not compromised;

• If not properly managed, stormwater runoff can increase flood flows and can carry contaminants into groundwater and surface water systems, threatening receiving water quality and also habitats based in or dependent on those surface water systems.

(m) "Substantial Damage" means damage of any origin sustained by a structure whereby the cost of restoring the structure to its pre-damage condition would equal or exceed fifty percent (50%) of the market value of the structure before the damage occurred, regardless of the value of or actual cost of repair work performed; and

(n) "Tidal Management" means the process of, and mechanisms for, ensuring that the magnitude and frequency of tides and wave action does not increase the hazards associated with flooding and/or erosion. Tidal management may include, but is not limited to, breakwaters, seawalls, the expansion or restoration of beaches, and the planting of vegetation to protect beaches and soil from erosion;

(4) (a) A critical and sensitive areas ordinance shall not be adopted unless the local government has first adopted a local comprehensive plan with a critical and sensitive areas element pursuant to Section [7-209].

(b) A natural hazard areas ordinance shall not be adopted unless the local government has first adopted a local comprehensive plan with a natural hazards element pursuant to Section [7-210].

(5) A critical and sensitive areas ordinance and/or a natural hazard area ordinance pursuant to this Section shall include the following minimum provisions:

(a) a citation to enabling authority to adopt and amend the ordinance;

(b) a statement of purpose consistent with the purposes of land development regulations pursuant to Section [8-103] and to the purposes of this Section;

(c) a statement of consistency with the local comprehensive plan, and with the critical and sensitive areas element and/or the natural hazards element in particular, that is based on findings pursuant to Section [8-104];

(d) definitions, as appropriate, for such words or terms contained in the ordinance. Where this Act defines words or terms, the ordinance shall incorporate those definitions, either directly or by reference;

(e) procedures and criteria for the designation of critical and sensitive area overlay districts (CSAODs) and/or natural hazards area overlay districts (NHAODs);

(f) provisions prohibiting particular uses, activities, and structures within CSAODs and/or NHAODs;

• This provision allows the local government to develop a list of uses and activities that should be prohibited from the CSAOD and/or NHAOD. This list should be tailored to specific resource protection or natural hazard issues within the local government.

(g) provisions permitting particular uses, activities, and structures within CSAODs and/or NHAODs, subject to a conditional use permit;

• The requirement of a conditional use permit gives the local government the opportunity to carefully review the proposed use or activity to ensure its appropriateness within the CSAOD and/or NHAOD and to attach conditions, if necessary, to its approval.

(h) provisions exempting particular uses, activities, and structures from the ordinance, as consistent with applicable federal and state law and regulations; and

• The exemption provision gives the local government the opportunity to exempt from the regulation uses that the local government chooses to exempt, due to the nature of the natural hazard area or critical and sensitive area, state or federal supremacy issues, or local preference.

(i) provisions adopting and implementing standards for mitigation measures within CSAODs and/or NHAODs, said standards constituting criteria for the grant of conditional use permits pursuant to subparagraph (5)(g).

• Note that if a local government participates in the National Flood Insurance Program (NFIP), the NHAOD standards must comply with the NFIP regulations adopted by the Federal Emergency Management Agency, 44 C.F.R. 60.3.

(6) A critical and sensitive area ordinance and/or natural hazard areas ordinance may:

(a) be adopted as a single ordinance;

• There may be natural hazards that endanger critical and sensitive areas. Or there may be natural hazards that benefit critical and sensitive areas, as with limited fires in forests or prairies and certain forms of plant life. In either case, it may be appropriate for a particular local government to address its critical and sensitive areas and natural hazard areas in one cohesive ordinance.

(b) authorize a transfer of development rights (TDR) program pursuant to Section [9-401] and/or a purchase of development rights (PDR) program pursuant to Section [9-402]; and

[(c) in a natural hazard areas ordinance, include a provision that any building or structure in an NHAOD that suffers substantial damage due to one or more of the natural hazards associated with the NHAOD shall be restored or repaired only if, and to the degree that, the building or structure, and the uses and activities conducted therein, comply with all provisions of the ordinance adopted pursuant to subparagraphs (5)(f), (g), (h), and (i), any provision of Section [8-502] to the contrary notwithstanding].

• This requires a building or structure in a natural hazards area that is destroyed or severely damaged by that natural hazard to comply with the presently-applicable natural hazards regulations on uses prohibited, permitted, and permitted only by a conditional use permit. This is an exception to the rule of Section 8-502 that a building or structure that is destroyed may be rebuilt to its pre-destruction condition unless the destruction was due to the intentional or reckless act of the owner. Without such an exception, structures susceptible to natural hazards or that even exacerbate them could be rebuilt without restriction to their pre-damage condition, with the same result when the natural hazard strikes again.

Because this provision is an exception to the normal rule on nonconforming uses and may bar reconstruction of existing buildings, it may be controversial, and is therefore a bracketed option.

(7) (a) All criteria for, boundaries and characteristics of, and standards applicable to:

1. CSAODs shall be those of the critical and sensitive areas identified in the critical and sensitive areas element of the local comprehensive plan pursuant to Section [7-209]; and

2. NHAODs shall be those of the natural hazards identified in the natural hazards element of the local comprehensive plan pursuant to Section [7-210].

(b) The provisions of a critical and sensitive areas ordinance applicable to a CSAOD or NHAOD, when the boundaries of the CSAOD or NHAOD divide a lot or parcel, shall apply only to the portion of the lot or parcel that is located within the CSAOD or NHAOD boundaries.

(c) An area may be designated both a CSAOD and an NHAOD.

(d) Where the boundaries of a CSAOD or NHAOD are in doubt or dispute, in any hearing, review, or appeal pursuant to Chapters 10 or 11, the burden of proof shall be upon the owner of the land in question to show where the boundaries should be located. While evidence and testimony challenging the boundaries may be submitted by a professional engineer, wetlands scientist, hydrologist, or geologist, the rebuttable presumption is that the boundaries of the CSAOD and/or NHAOD as identified on the zoning map are accurate.

Commentary: Transportation Demand Management

[7]

Introduction[8]

Transportation demand management (TDM) is a term used for a set of mechanisms intended to influence individual travel behavior. Such measures include both incentives ("carrots") to encourage desirable behavior and disincentives ("sticks"), which discourage undesirable behavior. In economic terms, TDM is a demand-side strategy as opposed to the traditional supply-side strategy of increasing the transportation system's carrying capacity by building more roads.

Demand management offers a tool for addressing several issues. A principal (perhaps obvious) goal of TDM is to relieve traffic congestion by reducing the number of auto trips taken, vehicle trips during peak travel times, and the drive-alone rate. Another commonly-cited goal is diminishing air pollution; while a third is reducing fossil fuel consumption. TDM may also affect highway safety, including accident-related injuries, fatalities, and property damage to vehicles, transportation infrastructure, and other property; the opportunity cost incurred when land that could have been used for some other purpose is used for car-related infrastructure; and environmental degradation resulting from surface water runoff from roadways which, in addition to containing road salt in some areas, may contain petroleum products and other contaminants.

Existing TDM Statutes

Numerous states have statutes authorizing or related to transportation demand management.[9] A variety of approaches to TDM could be observed in these statutes. In fact, the breadth of approaches challenged research because they are codified, variously, under health and safety, environment, transportation, highways, motor vehicles, planning and zoning, public works, executive office, commerce and trade, and taxation titles. Many states have adopted TDM mechanisms principally to comply with these federal Clean Air Act Amendments[10] and with ISTEA[11] and its successor, the Transportation Equity Act for the 21st Century (TEA-21).[12] It seems merely incidental that these state statutes constitute a coherent TDM strategy.[13] For this reason, existing statutes do little to suggest an extensive spectrum of specific elements that should be included in TDM legislation.

Nonetheless, commonalties among existing statutes do exist. There are two general approaches as to whether TDM measures are mandatory or merely authorized. One approach consists of enabling legislation that conveys specific authority for the creation, governance, and enforcement of rules to the administrative level. The other comprises legislative mandates that set rules into law and identify the responsible body for effectuating those laws.

A distinguishing characteristic of enabling legislation is that it transfers authority from the legislative to the administrative level by delegating the power and duty to adopt and implement trip reduction goals and measures to a specific governmental unit or units. The majority of the states examined used this approach. In some cases, general parameters for the administrator s activities are set by the use of compelling language; however, in others the administrator is simply given authority without any minimal requirements.

An example of broad authorization is Georgia's statute, which enables the state Department of Transportation (DOT) to participate in the establishment and operation of ridesharing programs both on its own and in cooperation with others; subject only to general appropriations for doing so and to its own rules and regulations.[14] Other than a brief definition of a ridesharing program, this constitutes the entire TDM statute. Another good illustration is Rhode Island's commuter parking facilities statute, which authorizes its public works department and director to plan, construct and maintain, or to enter into agreements with other agencies for commuter parking facilities to encourage the use of mass transportation and reduce peak traffic demands on highway systems[15] In this instance, some additional specific authorities are granted to the director, although the director is not compelled to carry them out.

The principal advantage of a broad authorization is that it offers the greatest deal of flexibility in which endeavors the state might get involved in and allows a more direct means of incorporating "cutting-edge" concepts into practice. By effectively saying, "You're the professionals in this field; you do what is most appropriate," legislators resist micromanaging at the macro level and better enable administrators to coordinate with the local level. However, a fundamental drawback is that each of these measures is devoid of a context in which it is to operate. No clear direction is adopted for either ridesharing programs or commuter parking facilities, and their place in the overall transportation planning system is left to the imagination.

A more detailed type of enablement is seen in the Illinois Employee Commute Options Act.[16] Illinois authorizes its DOT to adopt necessary rules to accomplish the purposes of the legislation. However, the Act goes on to list some specific activities of the department in carrying out its actions and enlists an advisory board to advise the department in its activities. A part of the Act does contain a legislative mandate applicable to affected employers. In Maine, a matching fund is established for regional rideshare services.[17] The statute lists minimal rules and regulations that shall be used by its department of economic and community development in disbursing funds, although it allows the department to construct additional rules and requires a certain level of reporting. A statute like Maine's offers basically the advantages of a broader authorization but with a higher level of accountability and a greater sense of the broader context for trip reduction regulations.

Legislative mandates also run the spectrum from broad to narrow. For instance, Colorado mandates the creation of a 20-year transportation plan (including transportation control measures) for certain regions.[18] But while it requires certain elements within that plan and creates an advisory committee, it also leaves the minute technical aspects of the plan up to its Department of Transportation. By contrast, New Jersey's Traffic Congestion and Air Pollution Control Act[19] provides more specific requirements to its DOT.

Content of the Model Section

Section 9-201 below is intended to provide a strong framework for the implementation of a full range of TDM measures within a comprehensive planning context. The state adopts rules and guidelines to assist the local governments in their adoption of trip reduction ordinances. Such ordinances must be adopted by populous local governments, and local governments with at least one major employer or major worksite and located in a populous region. Other local governments are authorized to adopt trip reduction ordinances. In either case, trip reduction ordinances must be consistent with the local comprehensive plan, and the transportation element of the plan in particular; no such ordinance may be adopted if the local government does not have a local comprehensive plan. Trip reduction ordinances are the primary tool for identifying commute trip reduction zones (areas with a similar level of traffic congestion and/or percentage of people driving alone) and for requiring commute trip reduction programs from all major employers, and employers at major worksites, in those local governments. The Section requires analysis of the existing commute situation, the setting of clear and achievable goals for the reduction of single-occupancy vehicle commute trips (people driving alone to and from work), and suggests measures for achieving those goals.

One notable aspect of the Section is the authorization for local governments to designate transit zones and for employers to relocate their worksites to transit zones as a commute trip reduction measure. This is in addition to typical trip reduction measures such as discouraging parking, encouraging transit use, carpooling, and vanpooling, and implementing telecommuting and flexible work hours. Transit zones are defined as areas with a high level of transit service, and rules of the state Department of Transportation would set more specific criteria. The intent of this provision is to direct employment into downtowns and other central business districts, where existing public transit infrastructure exists and where the additional density and intensity of development will support further transit improvements.

9-201 Transportation Demand Management

(1) The [name state] Department of Transportation shall adopt and implement a transportation demand management program, and local governments shall adopt and implement trip reduction ordinances, in the manner prescribed in this Section.

(2) The purposes of this Section are to:

(a) reduce the number of single-occupant motor vehicle trips;

(b) encourage the location of major workplaces in central business districts and similar areas conducive to public transit, pedestrian, and bicycle commuting;

(c) encourage telecommuting and alternative work schedules;

(d) encourage commuting and other transportation by pedestrian, bicycle, public transit, ridesharing, carpool, and vanpool modes;

(e) create and implement effective methods or measures, responsive to the needs of the various constituencies and communities of the state, for achieving the aforementioned purposes; and

(f) facilitate cooperation by the state, state agencies, [regional planning agencies], regional transportation agencies, local governments, transit agencies, business, industry, and the general public in achieving the aforementioned purposes.

(3) As used in this Section and in any trip reduction ordinance:

(a) "Carpool" means a group of [two or three] or more persons commuting on a regular basis to and from work by means of a vehicle with a seating capacity of nine persons or less;

(b) "Commute Trip" means trips between home and a worksite, including incidental trips during the trip between home and a worksite, that occur during peak travel periods;

(c) "Commute Trip Reduction Zones" mean areas, such as census tracts or combinations of census tracts, within or encompassing a local government that are characterized by similar employment density, population density, level of transit service, parking availability, access to high-occupancy vehicle facilities, and other factors that are determined to affect the level of single-occupancy vehicle commuting;

(d) "Commute Trip Vehicle Miles Traveled Per Employee" means the sum of the individual vehicle commute trip lengths in miles over a set period of time divided by the number of full-time employees during that period;

(e) "Department" means the state Department of Transportation;

(f) "Major Employer" means a private or public employer that employs [100] or more full-time employees at a single worksite who begin their regular work day during the peak travel period for 12 continuous months during the year; or nine continuous months in the case of schools and facilities of higher learning;

(g) "Major Worksite" means a building or group of buildings on physically contiguous parcels of land or on parcels separated solely by private or public roadways or rights of way, at which there are [100] or more full-time employees who begin their regular work day during the peak travel period for 12 continuous months during the year, or nine continuous months in the case of schools and facilities of higher learning;

(h) "Peak Travel Period" means the time period between 6:00 and 9:00 a.m. on weekdays, exclusive of state and national holidays;

(i) "Proportion of SOV Commute Trips" means the number of commute trips made by SOVs divided by the number of full-time employees;

(j) "Single-Occupant Vehicle" or "SOV" means a passenger motor vehicle occupied by only one person;

(k) "Task Force" means the Commute Trip Reduction Task Force;

(l) "Transit Zone" means a commute trip reduction zone with a high level of transit service;

(m) "Transportation Demand Management" (TDM) means a measure generally designed to limit the demand for transportation infrastructure, usually through reducing the number of SOV trips;

(n) "Transportation Demand Management Measures" means the specific measures used to help manage transportation demand. Transportation demand management measures include, but are not limited to:

1. relocation of the worksite to a transit zone;

2. provision of preferential parking or reduced parking charges, or both, for high-occupancy vehicles;

3. instituting or increasing parking charges for SOVs;

4. provision of commuter ride matching services to facilitate employee ridesharing for commute trips;

5. provision of subsidies for transit fares, carpooling, and/or vanpooling;

6. provision of vans for vanpools;

7. permitting the use of the employer's vehicles for carpooling or vanpooling;

8. permitting flexible work schedules to facilitate employees' use of transit, carpools, or vanpools;

9. cooperation with transportation providers to provide additional regular or express service to the worksite;

10. construction of special loading and unloading facilities for transit, carpool, and vanpool riders;

11. provision of bicycle parking facilities, lockers, changing areas, and showers for employees who bike or walk to work;

12. provision of parking incentives such as a rebate for employees who do not use the parking facilities;

13. establishment of a program to permit employees to work part- or full-time at home or at an alternative worksite closer to their home;

14. establishment of a program of alternative work schedules such as compressed work week schedules which reduce commuting; and

15. implementation of other measures designed to facilitate the use of high-occupancy vehicles such as on-site day care facilities and "guaranteed ride home" programs.

(o) "Vanpool" means [five] or more persons commuting on a regular basis to and from work by means of a vehicle with a seating capacity of not more than [15] persons;

(4) The Department shall:

(a) be responsible for providing technical assistance to [regional planning agencies] and local governments and, through liaisons in those regions and local governments, to major employers, in carrying out the functions of this Section; and

(b) convene a Commute Trip Reduction Task Force, with not more than [15] members, that represents a balance of state agency representatives; [regional planning agencies], local governments, transit agencies; major employers representatives; and the general public. The Department shall be responsible for identifying appropriate membership and providing staff support.

(5) The Department shall adopt rules, and may adopt guidelines, for trip reduction ordinances.

(a) The Task Force shall recommend in writing proposed rules and guidelines. The Department shall give due consideration to the recommendations of the Task Force, and shall explain, in writing, any revisions of or alterations to the recommendations of the Task Force and the legal and factual bases therefor.

(b) The rules and guidelines shall ensure consistency in trip reduction ordinances among regions and local governments, taking into account differences in employment and housing density, employer size, existing and anticipated levels of transit service, special employer circumstances, and other factors the Department determines are relevant.

(c) At a minimum, the rules shall include:

1. methods and information requirements for determining initial year values of the proportion of SOV commute trips and the commute trip vehicle miles traveled per employee

2. methods and information requirements for measuring compliance with, or progress toward meeting, commute trip reduction goals;

3. criteria for establishing commute trip reduction zones;

4. criteria for establishing transit zones;

5. methods for assuring consistency in the treatment of employers who have worksites in more than one region or local government;

6. methods to ensure that employers receive full credit for the results of TDM efforts and commute trip reduction programs which have been implemented by major employers and employers at major worksites prior to the initial year;

7. an appeals process by which major employers and employers at major worksites who, as a result of special characteristics of their business or its locations, would be unable to meet the requirements of a trip reduction ordinance, may obtain a waiver or modification of those requirements and criteria for determining eligibility for waiver or modification;

8. alternative commute trip reduction goals for employers who cannot meet the goals of this Section because of the unique nature of their business;

9. alternative commute trip reduction goals for major employers whose worksites change and who contribute substantially to traffic congestion in trip reduction zones; and

10. model trip reduction ordinances.

(d) The rules shall be considered rules of the Department, and shall be subject to Section [4-103] in the same manner as rules of the [state planning agency]. Their preparation and adoption shall be governed by the [Administrative Procedure Act] except as otherwise provided in this Section.

(e) The rules and guidelines shall be sent to all [regional planning agencies] and local governments within [30] days after their adoption.

(f) The Task Force shall, at least once every [5] years, conduct a general review of this Section, the rules and guidelines, and of progress toward implementing trip reduction ordinances and commute trip reduction programs. The review shall incorporate the progress reports pursuant to paragraph (10) below. The general review shall result in a written report to the Department, the Governor and the [legislature] that contains:

1. recommendations of proposed amendments to this Section or other statutes, new legislation, and/or amendments to the rules and guidelines under this paragraph (5). These recommendations may include proposals that the [legislature], the Department, and/or other state agencies adopt and implement other types of TDM measures beyond employee commute trip reduction measures, including but not limited to parking strategies, pricing strategies (road and bridge tolls), and land development regulations to foster bicycle/pedestrian and transit use; and

2. an analysis of changes in, or alternatives to, existing statutes, rules, and guidelines that would increase their effectiveness or reduce any identified adverse impacts; and/or why such changes or alternatives are less effective or would result in more adverse effects than the existing statutes, rules, and guidelines.

The Department shall give due regard to the written report, and shall adopt or reject the report in writing, stating in that writing any revisions or alterations from the report and the reasons therefor. If the Department fails to adopt, in whole or with revisions, such a written report within five years of the adoption of the first rules pursuant to this Section or of the last adoption of a written report, the rules and guidelines shall not enjoy a presumption of reasonableness, and the Department shall bear the burden of demonstrating such reasonableness.

(6) Every local government with a population of [150,000] or more, or containing one or more major employers or major worksites and located in a region with a population of [150,000] or more, shall adopt a trip reduction ordinance. Every other local government may adopt a trip reduction ordinance. A trip reduction ordinance:

(a) may be adopted only pursuant to this Section, and any purported adoption of a trip reduction ordinance contrary to this Section is void;

(b) shall be adopted in the manner of a land development regulation pursuant to Section [8-103] of this Act, except as otherwise provided in this Section;

(c) shall be prepared in cooperation with the [regional planning agency], adjacent or contiguous local governments, transit agencies, major employers, and the owners of, and employees at, major worksites;

(d) may not be adopted unless and until the local government has adopted a local comprehensive plan with a transportation element that includes all the applicable components required by Section [7-205];

(e) shall be consistent with the local comprehensive plan and the transportation element thereof, and shall not be inconsistent with the trip reduction ordinances of the:

1. other local governments in the region if the local government is within the jurisdiction of a [regional planning agency]; or

2. adjacent or contiguous local governments otherwise;

(f) shall, before it may be adopted by any local government within the jurisdiction of a [regional planning agency], be submitted to that [regional planning agency] for review.

1. The [regional planning agency] shall review the proposed ordinance for compliance with this Act and the rules pursuant to this Section and for consistency as provided in paragraph (6)(e) of this Section.

2. The [regional planning agency] shall approve or reject the proposed trip reduction ordinance within [30] days of receipt, and shall notify the local government in writing of its decision and the legal and factual bases therefor within [10] days of its decision.

3. The [regional planning agency] shall submit a copy of every proposed trip reduction ordinance, and of its decision thereon, to the Task Force within [10] days of its decision.

4. A local government whose proposed trip reduction was rejected pursuant to this paragraph may appeal the decision of the [regional planning agency] to the Task Force, which shall review the proposed ordinance in the same manner as proposed ordinances submitted pursuant to subparagraph (6)(g) below.

5. Any purported adoption of a trip reduction ordinance that must be submitted to a [regional planning agency] pursuant to this subparagraph (6)(f) but which was not so submitted or was submitted and rejected is void.

(g) shall, before it may be adopted by a local government not within the jurisdiction of a [regional planning agency], be submitted to the Task Force for review.

1. The Task Force shall review the proposed ordinance for compliance with this Act and the rules pursuant to this Section and for consistency as provided in paragraph (6)(e) of this Section.

2. The Task Force shall approve or reject the proposed trip reduction ordinance within [30] days of receipt, and shall notify the local government in writing of its decision and the legal and factual bases therefor within [10] days of its decision.

3. The Task Force shall retain a copy of every proposed trip reduction ordinance and the decision thereon, whether rendered by the Task Force or by a [regional planning agency].

4. Any purported adoption of a trip reduction ordinance that must be submitted to the Task Force pursuant to this paragraph but which was not so submitted or was submitted and rejected is void.

(7) A trip reduction ordinance shall:

(a) apply to all major employers and to all employers at major worksites, except that it shall not apply to construction worksites when the expected duration of the construction project is less than two years;

• Since major worksites have essentially the same vehicle use impact as a major employer (100 or more employees arriving at a building or complex of buildings during the major commuting hours), employers of any size located at major worksites are subject to this Section and to trip reduction ordinances to the same degree as major employers. Though there are obvious benefits for a small employer to locate at a major worksite, there is a possibility that if a trip reduction ordinance is perceived as onerous by small employers located at major worksites, some such employers will move to separate, non-major, worksites, thus increasing sprawl. The best preventative measure is to adopt a fair and balanced trip reduction ordinance and to monitor the land market for signs of such a movement of employers.

(b) be designed to achieve reductions in the proportion of SOV commute trips and commute trip vehicle miles traveled per employee by employees of major public- and private-sector employers in the local government;

(c) include at least the following minimum provisions:

1. a means for determining initial year values of the proportion of SOV commute trips and commute trip vehicle miles traveled per employee;

2. goals for reductions in the proportion of SOV commute trips and commute trip vehicle miles traveled per employee;

3. a means for determining compliance with, and/or progress toward meeting, commute trip reduction goals;

4. designation of commute trip reduction zones, if any exist;

5. designation of transit zones, if any exist;

6. provisions for monitoring and review of the progress toward the aforementioned goals within commute trip reduction zones;

7. requirements for major employers and employers at major worksites to adopt and implement commute trip reduction programs, pursuant to paragraph (9) of this Section;

8. a commute trip reduction program for employees of the local government;

9. provisions for periodic review of the compliance of employers with their commute trip reduction programs, pursuant to paragraph (9) of this Section;

10. provisions for enforcement pursuant to Chapter 11 of this Act for the failure of a major employer or employer at a major worksite to implement a commute trip reduction program or to modify its commute trip reduction program as may be necessary. Such provisions shall take into account the nature, seriousness, and circumstances of the violation, whether there is a pattern of noncompliance, and efforts which are being made to achieve compliance;

11. an appeals process by which employers who, as a result of special characteristics of their business or its locations, would be unable to meet the requirements of the trip reduction ordinance, may obtain waiver or modification of those requirements; and

12. a review of local parking policies and ordinances as they relate to employers and major worksites, and of any revisions necessary to comply with commute trip reduction guidelines.

(8) A local government that has adopted a trip reduction ordinance that designates commute trip reduction zones and/or transit zones may:

(a) amend its land development regulations to establish lower minimum parking-area requirements in transit zones and/or commute trip reduction zones;

(b) amend its land development regulations to establish maximum parking-area limits in transit zones and/or commute trip reduction zones; or

(c) amend other ordinances and regulations, such as on-street parking regulations, with the purpose of reducing the number of parking spaces available and/or the times of their availability within transit zones and/or commute trip reduction zones.

(9) Every major employer, and every employer at a major worksite, in a local government that has adopted trip reduction ordinance shall adopt and implement a trip reduction program.

(a) A commute trip reduction program shall consist of, at a minimum:

1. designation of a transportation coordinator, whose name, location, and telephone number must be displayed prominently at each affected worksite;

2. regular distribution of information to employees regarding alternatives to SOV commuting;

3. annual review of employee commuting;

4. annual reporting to the local government, consistent with the method established in the trip reduction ordinance, of compliance with the SOV reduction goals; and

5. implementation of one or more transportation demand management measures designed to achieve the applicable commute trip reduction goals adopted by the local government.

(b) The local government shall review the initial commute trip reduction program of each major employer and each employer at a major worksite within [90] days of receipt of the program, and shall annually review each such employer's compliance with its commute trip reduction program.

1. The local government shall notify the employer in writing of the findings of its review within [10] days of its conclusion.

2. If the jurisdiction finds that the program is not likely to meet the applicable commute trip reduction goals, the local government shall work with the employer to modify the program as necessary.

3. The employer shall implement the commute trip reduction program within [three] months of receiving notice of its approval of the program.

(c) If a major employer or employer at a major worksite does not meet the applicable commute trip reduction goals, then the local government shall, after consulting with the employer, propose modifications to the commute trip reduction program and direct the employer to revise its program with [30] days to incorporate those modifications, or alternative modifications proposed by the employer that the local government determines to be appropriate.

(d) Failure to modify the program as provided in subparagraph (9)(c) above shall constitute a violation of land development regulations pursuant to Chapter 11 of this Act.

(e) Employers or owners of worksites may form or use existing transportation management associations to assist members in developing and implementing commute trip reduction programs.

(10) Every local government that adopts a trip reduction ordinance shall submit an annual progress report to the Department, in a format established by the Department. The report shall describe progress in attaining the applicable commute trip reduction goals for each commute trip reduction zone and commute trip reduction program, and shall highlight any problems being encountered in achieving the goals. The local government shall publish the progress report and make it available to the public.

Commentary: Historic and Architectural Design Review

[20]

Historic preservation and architectural design review have increasingly become a standard component of communities' suite of land development regulations. With the assistance of historic preservation and architectural design controls, communities can maintain and foster their unique identities, which in turn can help to make the community a desirable place to live and do business. Historic preservation ordinances[21] seek to preserve the existing historic character of structures or sites that may be associated with an important historic event or person or are representative of a certain architectural type or period. Design review controls[22] are concerned with the aesthetics of proposed residential and nonresidential development.

Historic preservation controls are typically applied to an existing area known as an "historic district" that contains buildings or structures with identifiable historic or architectural characteristics, or individual structures designated as "historic landmarks," Historic districts and landmarks are often identified for protection through part of a survey process conducted by experts in history or architecture and based on specific criteria contained in a historic preservation ordinance. Frequently, locally-designated historic districts and landmarks are simultaneously listed on the U.S. Department of Interior's National Register of Historic Places.[23] Protection is accomplished through the regulation of proposed changes to a district or landmark property, including alterations to existing structures and sites, demolition, the construction of additions and new structures, and the relocation of historic buildings to new sites.

Design review regulations, in comparison, attempt to promote or establish community character by insuring that a certain architectural style or styles are followed (e.g., "look-alike" ordinances) or, in contrast, that architectural diversity is encouraged ("anti-look-alike" ordinances).[24] In the former, the emphasis is on compatibility of new buildings and modifications to existing buildings. In the latter, the emphasis on is on avoiding monotony.

While the objectives of the two laws differ significantly, the process involved can be similar.[25] A board[26] is assigned by ordinance the responsibility of reviewing proposed development or changes to existing buildings and issuing a permit, a "certificate of appropriateness," when it is found that the proposal complies with criteria and standards in the ordinance. Accompanying the ordinance may be descriptive, often illustrated, guidelines to give examples of how to interpret design criteria or standards of review in the ordinance.[27]

Historic preservation ordinances rest on firm legal ground. Virtually every state authorizes regulations for historic preservation, either as a permissible objective in zoning and other land-use regulations[28], or as a separate statute, sometimes describing the composition and powers of a historic district commission, the process by which historic districts are created, and the manner in which proposed development in such districts and on landmarked property is to be reviewed.[29]

Both historic preservation and design review ordinances have been challenged as improper uses of the police power, regulating "mere" aesthetics. This view has rarely been supported by the courts. These ordinances are typically adopted to address concerns beyond or in addition to aesthetics, such as economic stability, support of property values, and social development.[30] Furthermore, the majority view in U.S. courts is that aesthetics alone is a proper purpose in land use regulation.[31] In Berman v. Parker, a nonzoning case involving the constitutionality of an redevelopment statute for the District of Columbia, the U.S. Supreme Court remarked in dicta that was to favorably influence consideration of aesthetic purposes in state courts:

The concept of the public welfare is broad and inclusive . . . The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as health, spacious as well as clean, well-balanced as well as carefully patrolled.[32]

In more recent years, the U.S. Supreme Court upheld New York City's landmarks preservation ordinance, which "embod[ied] a comprehensive plan to preserve structures of historic or aesthetic interest wherever they might be found in the city."[33] The Court further stated:

Because this Court has recognized in a number of settings that States and cities may enact land-use restrictions or controls to enhance the quality of life by preserving the character and desirable aesthetic features of a city ... appellants do not contest that New York City's objective of preserving structures and areas with special historic, architectural, or cultural significance is an entirely permissible government goal.[34]

In a few cases, architectural review ordinances have been invalidated as an improper delegation of power or because they were unconstitutionally vague and thus it was difficult for a board to make a decision based on the standards in the ordinance.[35] In contrast, historic preservation ordinances have generally withstood due process challenges.[36]

Earlier Model Legislation

The American Law Institute's 1976 Model Land Development Code contained several provisions dealing with aesthetic controls. One section authorized local governments to designate specified land or structures as landmarks (including a reasonable amount of land surrounding the landmark) and to require that no development occur unless the local government approved a special development permit.[37] Another section allowed development ordinances to designate special preservation districts of historic, archaeological, scientific, architectural, natural or scenic significance and to regulate development within them through a special permit process.[38] The development ordinance was to specify criteria to be used in granting the permit.

The Model Statute

Section 9-301 below authorizes a local government to adopt historic preservation and design review ordinances as part of its land development regulations. Under the historic preservation ordinance, a local government may create historic districts and designate historic landmarks. Under the design review ordinance, a local government may create design review districts. Both types of ordinances require that a certificate of appropriateness be obtained before certain types of development in a district or on a landmark site may occur. The model describes the contents of both such ordinances in greater detail.

The designation of historic landmarks and districts and of design review districts is conditioned upon the adoption of a local comprehensive plan that also contains a historic preservation element and/or a community design element. Both elements require the kind of background studies that would allow the formulation of design criteria.

The model statute provides options as to the body that is to review applications for a certificate of appropriateness. For example, a local planning commission, hearing examiner, or another individual local official may be designated, or a new board, such as a historic preservation commission, may be created for the purpose of administering the ordinance. The certificate, which is a type of development permit, is to be granted pursuant to criteria in the ordinance.

The Section provides the option to adopting state legislatures to authorize the regulation of publicly accessible interiors as well as the exterior features of buildings. According to a survey conducted by the National Alliance of Preservation Commissions in 1998, approximately 8 percent of the jurisdictions responding have control over interior architectural features that are visible to the public such as an office building lobby, a theater, or restaurant.[39] Examples of states specifically authorizing the regulation of interiors include Michigan[40] and North Carolina.[41]

There are concerns about the protection of historic properties while a historic preservation plan element or ordinance is pending in the local legislative process. The historic features of a property could be irrevocably damaged or destroyed in the time it takes a local government to add the property to the protected list. There is a tool in the Guidebook well-suited to protecting historic properties while the designation process is pending — the moratorium, as authorized and regulated by Section 8-604. To make this connection clearer, and to resolve any ambiguities in the moratorium Section, Section 9-301 below expressly authorizes planning moratoria for individual properties that have historic preservation potential, giving local governments up to 180 days free from development in which to adopt or amend the historic preservation plan element and ordinance to include the property in question.

There may be similar concerns with the effect of historic preservation on individual landowners, specifically that the regulations may create an undue hardship that must somehow be remedied. The Guidebook includes a general procedure for addressing claims of undue hardship — the mediated agreement pursuant to Section 10-504. With the procedure of that Section being generally available, there is no need for a separate procedure solely for historic preservation regulation (or indeed any other particular category of land development regulation).

9-301 Historic Districts and Landmarks; Design Review

(1) The legislative body of a local government may adopt and amend in the manner for land development regulations pursuant to Section [8-103 or cite to some other provisions, such as a municipal charter or state statute governing the adoption of ordinances]:

(a) a historic preservation ordinance that authorizes the designation of areas by ordinance as historic preservation districts, that authorizes the designation of properties by ordinance as historic landmarks, and requires that, in accordance with standards of review specified in the ordinance, a certificate of appropriateness be obtained from a historic preservation board for development affecting the exterior [and interior] architectural features of all or specified proposed development therein, and/or

(b) a design review ordinance that authorizes the designation of areas by ordinance as design review districts and requires that, in accordance with standards of review specified in the ordinance, a certificate of appropriateness be obtained from a design review board for development affecting the exterior [and interior] architectural features of all or specified proposed development therein

(2) As used in this Section:

(a) "Certificate of Appropriateness" means the written decision by a local historic preservation board or design review board that proposed development is in compliance with a historic preservation ordinance or design review ordinance, respectively, including the standards of review therein;

(b) "Contributing Structure" means a classification applied to a site, building, structure or object within a historic district signifying that it contributes generally to the qualities which give the historic district its historical, architectural, archaeological or cultural significance, but without necessarily being itself a landmark.

(c) "Design Review Board" means any officer or body designated by the legislative body to review applications for and issue a certificate of appropriateness for exterior architectural features of all or specified proposed development in a design review district;

(d) "Design Review District" means a geographically definable area possessing a significant concentration, linkage, or continuity of sites, buildings, structures, or objects united aesthetically by development or that, in the determination of the local legislative body, has the potential to be united aesthetically by development;

(e) "Exterior Architectural Features" mean the architectural character and general composition of the exterior of a structure, including, but not limited to the kind, color, and texture of the building material and the type, design, and character of all windows, doors, light fixtures, signs, and other appurtenant elements including antennas, receiving dishes, and utility structures. Exterior architectural features include:

1. natural and man-made features of the site that significantly affect the character or appearance of the site; and

2. archeologically or culturally significant features of the site;

(f) "Historic District" means a geographically definable area possessing a significant concentration, linkage, or continuity of sites, buildings, structures, or objects united by past events or aesthetically by physical development;

(g) "Historic Landmark" means an individual property of historical, architectural, archeological, or cultural interest;

(h) "Historic Preservation Board" means any officer or body designated by the legislative body to review applications for and issue a certificate of appropriateness for [exterior architectural features of] all or specified proposed development in a historic district or of a historic landmark;

[(i) "Interior Architectural Features" mean the architectural character and general composition of a significant landmark interior, including the room design and configuration, color and texture of materials, and the type, pattern, and character of all architectural details and elements, including but not limited to staircases, doors, hardware, moldings, trims, plaster work, light fixtures, and wall coverings;]

[(j) "Significant Landmark Interior" means the interior of a building or structure that has been designated as a historic landmark, is open to or available for use by the public, and satisfies the criteria for designation under this Section;] and

(k) "Standards of Review" mean the criteria used by a historic preservation board or design review board in deciding whether to issue a Certificate of Appropriateness.

(3) A historic preservation ordinance and/or a design review ordinance adopted pursuant to this Section shall include the following minimum provisions:

(a) a citation to enabling authority to adopt and amend the ordinance;

(b) a statement of purpose consistent with the purposes of land development regulations pursuant to Section [8-102(2)];

(c) a statement of consistency with the local comprehensive plan that is based on findings made pursuant to Section [8-104];

(d) definitions, as appropriate for such words or terms contained in the historic preservation ordinance and/or design review ordinance. Where this Act defines words or terms, the ordinance shall incorporate those definitions, either directly or by reference;

(e) for a historic preservation ordinance, criteria to be applied by the local government in selecting areas to be designated by ordinance as historic districts and in selecting individual properties to be designated by ordinance as historic landmarks[, including any significant landmark interiors]. Properties eligible for designation shall possess integrity of location, design, setting, materials, workmanship, feeling and association; and:

1. be associated with events that have made a significant contribution to the history of the local government, this State, or the United States;

2. be associated with the lives of persons significant in past events;

3. embody the distinctive characteristics of a type, period or method of construction, or that represent the work of a master, or that possess high artistic values, or that represent a significant and distinguishable entity whose components may lack individual distinction; or

4. yield, or be likely to yield, information important in prehistory or history;

• These criteria are based on the "Criteria for Evaluation" for listing on the National Register of Historic Places under 36 C.F.R. ' 60.4. Additional criteria reflecting the particular historic preservation objectives of a local jurisdiction may be added in the ordinance.

(f) for a design review ordinance, criteria to be applied by the local government in selecting areas to be designated by ordinance as design review districts;

(g) standards of review to be applied by the historic preservation board and/or design review board in reviewing applications for a certificate of appropriateness. These criteria shall include such matters as are consistent with the desired character of the exterior [and interior] architectural features of buildings and structures and their surroundings in a historic district, in a design review district, or on properties that have been designated as historic landmarks;

• The Secretary of the Interior's Standards for Rehabilitation, codified at 36 C.F.R. Part 67, are the prevalent standards used by local governments in the regulation of historic properties. These standards may be modified or embellished to reflect the particular historical or architectural character of the properties subject to protection within a specific locality.

(h) procedures for the review of applications for a certificate of appropriateness pursuant to paragraph (7) below;

(i) specifications for all application documents and plan drawings for a certificate of appropriateness; and

(j) designation of an officer or body, including but not limited to a local planning commission or hearing examiner, as the historic preservation board and/or design review board, or the creation of a new board or boards. The same officer or body may be designated as both the historic preservation board and the design review board, or separate designations may be made. If the historic preservation ordinance and/or design review ordinance creates a new board or boards, then the ordinance shall:

• Under this Section, a "board" may consist of a single local official assisted by his or her staff.

1. specify the number of members who shall serve on the board, including alternate members;

2. specify that at least one member of the board shall have expertise or training in history, architecture, architectural history, archaeology, or land-use planning;

• Historic preservation and design review board members should, to the greatest extent possible, have sufficient backgrounds in history, architecture, architectural history, and related backgrounds to preclude potential due process challenges or claims of arbitrary and capricious decision making. Where a community cannot "field" an all-professional board or boards, it should ensure that board members have the requisite expertise to the greatest extent possible, through training or other means, and have access to qualified experts when necessary.

3. provide for the appointment of board members, including alternate members, and for the organization of the board;

4. specify the terms of members of the board, which may be staggered;

5. specify the requirements for voting on matters heard by the board, and specify the circumstances in which alternate members may vote instead of regular members; and

6. specify procedures for filling vacancies in unexpired terms of board members, including alternate members, and for the removal of members, including alternate members for due cause.

(4) A local government that has adopted a historic preservation ordinance and/or a design review ordinance may adopt an advisory manual of written and graphic design guidelines to assist applicants in the preparation of an application for a certificate of appropriateness.

(a) Design guidelines may provide examples of development and alterations to development that would meet the intent of the standards of review.

(b) Design guidelines shall be prepared by the historic preservation board and/or design review board and adopted by the local legislative body, and shall be consistent with the standards of review, but are not by themselves legally binding.

(5) No local government may designate pursuant to this Section:

(a) a historic landmark or historic district unless it has first adopted a local comprehensive plan that contains a historic preservation element pursuant to Section [7-215]; and

(b) a design review district unless it has first adopted a local comprehensive plan that contains a community design element pursuant to Section [7-214];

• Note that a community design element may concern broad and concrete aesthetic issues that do not require a design review ("all single-family houses shall be clad in brick" for instance). Therefore, while design review cannot occur without the community design plan element, that element can be implemented independently of this Section to the extent that discretionary design review is not needed.

(6) A historic district, design review district, or historic landmark shall be designated by ordinance in the manner provided for discrete and identifiable lots or parcels of land in Section [8-103].

(a) The ordinance shall contain, as applicable, a legal description of:

1. the boundaries of the historic or design review district; and/or

2. the property that is to be designated a historic landmark[, including any significant landmark interiors].

(b) The ordinance may be adopted only upon receipt of recommendations from the historic preservation board or design review board, provided however, that the legislative body may enact or amend the land development regulations if it has not received a recommendation from the historic preservation board or design review board within [60] days of the date of the public hearing on the proposed ordinance or amendment. The local legislative body shall give due consideration to the recommendations of the historic preservation board or design review board.

(c) A historic district, design review district, or historic landmark shall be shown as an overlay district or other zoning district on the zoning map of the local government pursuant to Section [8-201(3)(o)].

(7) A certificate of appropriateness is required for all proposed development removing, destroying, adding, or altering exterior [and interior] architectural features of properties located in a historic district or design review district or of properties designated pursuant to this Section as historic landmarks, or for disturbing or excavating archaeologically or culturally significant sites within a historic district or a property designated pursuant to this Section as a historic landmark.

(a) A certificate of appropriateness may be issued subject to such conditions which, in the opinion of the historic preservation board or design review board, are directly related to the standards of review, provided such conditions do not conflict with or waive any other applicable requirement of the land development regulations.

1. The board shall base any conditions it adopts on competent, credible evidence it shall incorporate into the record and its decision.

2. If the historic preservation board or design review board issues the certificate with conditions pursuant to this paragraph, the plan drawings and other materials submitted with the application describing the exterior [and interior] improvements shall be revised to include such conditions before the certificate of appropriateness is issued.

(b) A certificate of appropriateness is a development permit, and certificates of appropriateness shall be part of the unified development permit review process established pursuant to Section [10-201]. A record hearing shall be conducted upon all applications for a certificate of appropriateness.

(8) This Section:

(a) does not authorize a historic preservation board or design review board, in a decision on an application for a certificate of appropriateness, to prohibit or deny a land use that is permitted as of right in the applicable zoning use district, although it may prohibit or deny permission for development even though that development may be necessary for a permitted land use;

• Uses as of right should not lose their as-of-right nature because the building in which the use is located is subject to a design review or historic preservation ordinance. To give an example, a design review board could compel a fast-food chain to employ signage and building decor that are compatible with the design district but could not prohibit a restaurant from operating within the design-compliant building if restaurants are as-of-right in that use district. States with similar provisions include North Carolina (N.C. Gen'l Stat. 160A-400.13) and West Virginia (W.Va. Code 8-26A-7(11)). Care should be taken in the preparation of the land-use element of the comprehensive plan and the zoning ordinance to provide as-of-right uses in historic or design review districts that are compatible with the purposes and standards of the districts.

(b) shall not prevent the ordinary maintenance or repair of any exterior [or interior] architectural feature in a historic district, design review district, or historic landmark that does not involve a change in design, material, or appearance thereof;

(c) shall not prevent the construction, reconstruction, alteration, restoration, moving, or demolition of any exterior [or interior] architectural feature that the [code enforcement agency] shall certify is required by the public health or safety because of an unsafe or dangerous condition; and

(d) does not prevent the maintenance or, in the event of an emergency, the immediate restoration of any existing above-ground utility structure without a certificate of appropriateness.

(9) All buildings and contributing structures in a historic district or on a historic landmark shall be maintained in a reasonable state of repair by the owner and by any other person who may have legal custody and control over the premises.

(a) The [code enforcement agency], at the request of the historic preservation board or design review board, may order the owner or any other person with legal custody and control over the premises to correct defects or repairs to any building or contributing structure within a historic district or on a historic landmark, so that such properties are preserved and protected in accordance with the purpose of the historic preservation ordinance.

(b) Any such order shall be in writing and shall state the specific actions that must be taken to comply with this provision and the date for compliance.

• Some historic preservation ordinances specifically authorize a code enforcement agency to institute, perform, or complete the necessary remedial work to prevent deterioration or de facto demolition by neglect and impose a lien against the property for the expenses incurred. This power is included in Chapter 11 as a generally-available remedy for the local government when a landowner does not maintain or repair their property as required by land use regulations. Many communities also authorize the use of eminent domain as a means of protecting historic buildings from serious neglect, but such a grant is beyond the scope of the Legislative Guidebook.

(10) A local government may adopt a moratorium, pursuant to Section [8-604], for the purpose of preparing and adopting historic preservation plans, ordinances, designations, and amendments thereto, and may apply said moratorium to individual properties with the potential or need for historic preservation under this Section.

• Such a moratorium gives the local government up to 180 days to add a property to its historic preservation plan element and ordinance, during which no development permit, including building permits, may issue for that property.

(11) This Section, or any provision thereof, shall not invalidate any designation of a historic district, historic landmark, or design review district made, or any certificate of appropriateness issued, pursuant to any earlier statute, ordinance, or regulation, if said designation or issuance was valid at that time.

Commentary: Transfer of Development Rights

[42]

The Basics

What is a transfer of development rights (also called transfer of development credits, transferable development rights, or simply "TDR")? Put most simply, it is the yielding of some or all of the right to develop or use a parcel of land in exchange for a right to develop or use another parcel of land, or another portion of the same parcel of land, more intensively. In TDR programs, a local or regional government that wishes to preserve land in an undeveloped or less-developed state may do so without payment of cash compensation[43] if it is willing to accept higher densities or more intensive uses elsewhere. The owner has, in theory, not suffered a taking even in the extreme case where all reasonable use of a parcel of land is effectively precluded, because he or she has not lost any rights of ownership but merely transferred one component of ownership of land — the right to develop and use the land — from one parcel to another.

Why would a local government wish to preserve privately-owned land in an undeveloped state or prevent future development of such property? There are typically three reasons for a TDR program. The first is to preserve open space or ecologically sensitive areas (such as wetlands). The second common use of TDR is the preservation of agricultural or forest uses. The last, and most familiar, use of TDR is in the preservation of historic landmarks.

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