Growing Smart Legislative Guidebook

Chapter 8 (part 2): Local Land Development Regulation

8-105 Relationship of Land Development Regulations to Other Federal and State Laws, Regulations, Programs, and Plans; Maintenance of List by the [State Planning Agency]

(1) In formulating and drafting proposed land development regulations for adoption or amendment pursuant to Sections [8-102] and [8-103] above, a local government shall take into consideration the effects of federal authority over land or resource use on the area within the jurisdiction of the local government, including, but not limited to:

(a) treaties with Native Americans;

(b) jurisdiction on land owned or held in trust by the federal government;

(c) federal statutes or regulations imposing standards; and

(d) federal permit programs and plans.

(2) In formulating and drafting proposed land development regulations pursuant Sections [8-102] and [8-103] above, a local government shall take into consideration the effects of any state agency, [regional planning agency], and special district regulatory and planning provisions regarding land use, resource management, environmental protection, and public utilities on the area within the jurisdiction of the local government, including, but not limited to:

(a) state statutes and regulations imposing standards;

(b) programs involving state-issued permits or certifications;

(c) state statutes and regulations regarding rates, services, facilities, and practices of public utilities, and tariffs of utilities in effect pursuant to such statutes and regulations;

(d) state and regional plans; and

(e) regulations and permits issued by [regional planning agencies] and special districts that affect areas within the jurisdiction of the local government.

(3) The [state planning agency] shall maintain and publish on an annual basis a current list of federal and state laws, regulations, programs, or plans for use by local governments in regard to the purposes of paragraphs (1) and (2) above.


Commentary: Federal and State Exemption from Local Development Regulations

The question of whether the state and its agencies are or should be exempt from local land development regulation is a difficult one.[84] Generally, the state would rather not be subject to local land development regulation of any kind because that would interfere in the ability of state agencies to perform their duties, which include the construction and operation of facilities. Most state enabling acts are silent on this topic, and the state is generally assumed to be a sovereign and thus beyond any local control, as is the federal government under the U.S. Constitution.[85] The leading case adopting the sovereign immunity rule is Kentucky Institute for Education of the Blind v. City of Louisville.[86] In the absence of a specific state statute, state courts have developed a variety of tests to resolve conflicts between governmental units in land-use matters. One approach is the governmental-proprietary test.[87] This test distinguishes between functions of governmental units, exempting functions that are governmental (or essential) in nature, but requiring compliance from uses that are proprietary (or permissive) in nature. For example, under this theory, a state university that ran a student union that included a McDonald's and a Taco Bell would be operating in a proprietary manner. Another is the balancing test that views sovereign immunity as only one factor to consider in intergovernmental land use conflict cases[88]. An Ohio case, for example, provides that the state need not obtain a permit from a local government but must attempt to comply with the local zoning scheme or show that such compliance was impossible given the state purpose and use[89].

Governmental units such as school districts and special districts may also be exempt through a transfer of the immunity of the state, on the theory that the governmental unit is exercising a state function. Similarly, a county as an administrative unit of the state would be exempt from municipal zoning. As state-regulated entities, public utilities may be exempt from local zoning regulation.[90]
Several states have provided statutory guidance in this matter. For example, Oregon, which certifies local comprehensive plans, provides that local zoning ordinances are applicable to any publicly-owned property.[91] California allows local school districts and any other "local agency" to exempt themselves, as agents of the state in the local performance of governmental or proprietary functions, from local zoning regulations under certain circumstances.[92] In Rhode Island, which has a procedure for state review and approval of local comprehensive plans, state projects must conform to approved local comprehensive plans. However, if a state agency wishes to undertake a project or to develop a facility which is not in conformance with the comprehensive plan, the state agency may petition the state planning council for relief.[93] The Rhode Island statute, however, is silent on whether state agencies must obtain zoning or other development permits from the local government.

Section 8-106 below provides four different alternatives for exempting or not exempting state owned or leased land and other public owned land from local development regulation. All four alternatives provide that federally owned or leased land is completely exempt. Alternative 1 assumes that a system of state certification of local comprehensive plans, described in Chapter 7 of the Legislative Guidebook, is in place. Local governments whose plans have been approved by the state and have been adopted by the legislative body may regulate state facilities through their land development regulations, although a state agency may appeal to a state comprehensive appeals board. Alternative 2 subjects state-owned or leased land to local regulation, unless the local government passes ordinances to the contrary (a local government could decide it simply does not want to regulate state facilities). Alternative 3 is an absolute exemption for the state and state agencies, but allows other publicly owned land to be subject to local regulation. And Alternative 4 provides that the state and its agencies are not bound by the land development regulations in their development activities but that when a proposed development that would otherwise be contrary to local land development regulations, a public hearing, non-binding and for purpose of commentary and information only, must be held.


8-106 Relationship of Land Development Regulations to Lands Owned by the Federal, State, and Other Governmental Units (Four Alternatives)

Alternative 1—Complete Exemption of Lands Owned by the Federal Government, But No Exemption for Lands Owned or Leased By the State and Certain Other Public Agencies When the Local Comprehensive Plan Has Been Approved by the State

(1) Where a local comprehensive plan has been approved by the state pursuant to Section [7-402.2] and lawfully adopted, then the land development regulations of a local government shall apply to lands owned or leased by the state and state agencies [,] [, and] [special districts] [, and school districts], except as the regulations may prescribe to the contrary, but shall not apply to lands owned or leased by the Federal Government. Until its local comprehensive plan has been approved by the state and lawfully adopted, a local government shall not adopt and enforce land development regulations that apply to lands owned or leased by the state and state agencies [,] [, or] [special districts] [, or school districts], and any purported adoption or enforcement of such regulations shall be void, but it may adopt and enforce regulations that apply to other publicly owned or leased land.

(2) No state agency [,] [, or] [special district] [, or school district] shall engage in any significant capital improvement, as that term is defined in Section [7-402.4], which requires a development permit from the local government and which is not described in and not included in the local comprehensive plan, as amended, except as provided in Section [7-402.4]. Where the Comprehensive Plan Appeals Board approves a petition pursuant to Section [7-402.4], then no development permit from the local government shall be required in order for a state agency [,] [, or] [special district] [, or school district] to construct a significant capital improvement.

Alternative 2—Complete Exemption of Lands Owned by the Federal Government, But No Exemption for Lands Owned by the State

 

The land development regulations of a local government shall apply to all publicly owned or leased land, including lands owned or leased by the state and state agencies, except as the regulations prescribe to the contrary, but shall not apply to lands owned or leased by the Federal Government.

Alternative 3—Complete Exemption of Lands Owned by the State or Federal Government

The land development regulations of a local government shall not apply to lands owned or leased by the state and state agencies or to lands owned or leased by the Federal Government, but shall apply to other publicly-owned or leased land, except as the regulations may prescribe to the contrary.

• Note that special districts and school districts are subject to local land development regulations, under this Alternative.

Alternative 4—Exemption of Lands Owned by the State or Federal Government, Subject to Non-Binding Public Hearing for Certain State Development Proposals

(1) Except as provided in paragraph (2) below, the land development regulations of a local government shall not apply to lands owned or leased by the state and state agencies or to lands owned or leased by the Federal Government, but shall apply to other publicly-owned or leased land except as the regulations may prescribe to the contrary.

(2) If the local [planning or code enforcement agency] determines that any proposed development upon lands owned or leased by the state or state agencies would be contrary to the land development regulations of the local, it shall hold a public hearing upon the proposed development. The information and opinions presented at the hearing and any results or conclusions of the hearing shall not be binding upon the local government or upon the state or state agencies.

(3) Notice of a public hearing required by paragraph (2) above shall be provided as stated in this paragraph.

(a) Any notice pursuant to this Section shall include:

1. the date, time, and place of hearing;

2. the name of the state agency proposing the development, and the means by which the agency may be contacted regarding the proposed development by mail, telephone, and other common means of communication;

3. a [legal and common] description of the lots or parcels that would be subject to the proposed development;

4. a description of the proposed development;

5. the time and place where documents describing the proposed development may be inspected by any interested person prior to the hearing; and

6. the location where copies of the documents describing the proposed development may be obtained or purchased.

(b) The local [planning agency or code enforcement agency] shall give notice in writing of the public hearing by publication in a newspaper or newspapers having general circulation in the jurisdiction of the local government [and may also give notice by publication on a computer-accessible information network or by other appropriate means] at least [30] days before the public hearing.

(c) The local [planning agency or code enforcement agency] shall also give notice in writing of the public hearing to:

1. neighborhood planning councils established pursuant to Section [7-109];

2. neighborhood and community organizations recognized pursuant to Section [7-110];

3. the owners of record of parcels and lots [within 500 feet of or adjoining or confronting] the parcels or lots that would be subject of the proposed development; and

4. any other local governments that are [within 500 feet of or adjoining] the parcels or lots that would be subject of the proposed development,

by certified mail, mailed at least [30] days before the public hearing and addressed to the secretary of such council or organization, or such other person as may be designated to receive notice. If the number of persons or entities entitled to receive notice under subparagraphs 3 and 4 above exceeds [100], then the local [planning agency or code enforcement agency] need not provide notice by certified mail to such persons.

(d) The local government may also require the posting of a sign bearing the notice required by this Section upon the property in question and may establish standards for the location, size, and composition of the sign.

(4) At the public hearing required by paragraph (2) above:

(a) the local [planning agency or code enforcement agency] shall permit all interested persons, specifically including persons entitled to notice by certified mail pursuant to this Section, to present their views orally or in writing on the proposed development;

(b) at least one official or employee of the state agency proposing the development shall attend the hearing at all times; and

(c) copies of all written submissions to the hearing shall be forwarded by the local [planning agency or code enforcement agency] to the state agency proposing the development within [5] days after the conclusion of the hearing.

Zoning


Commentary: The Contents of a Zoning Ordinance

Section 8-201 below grants the specific authority to a local government to adopt and amend a zoning ordinance. Like the Standard Zoning Enabling Act , it states, in paragraph (2), the permissible scope of regulation, but in broader terms that incorporates many of the topics that are contained in contemporary zoning ordinances (e.g., floodplains, stormwater, landscaping, signage). Note that it also permits the local government to specify both minimum and maximum densities and intensities. This language takes into account the importance of density and intensity in establishing urban form. It is necessary if local governments are to incorporate urban growth areas into their planning system, as provided for in Section 6-201.1. Note also that it does not restrict or prohibit zoning regulation within agricultural use zones, as some states do.

Paragraph (3) is based, in part, on zoning enabling acts from Kentucky and Rhode Island.[94] These acts identify minimum contents of the zoning ordinance that include: definitions, provisions for administration and enforcement of the regulations affecting particular use districts, and establishment of the zoning map. The intent here is to provide local governments with a basic structure for the ordinance. Of course, local governments may elect to add other special provisions (e.g., planned unit development, site plan review, transfer of development rights) as their needs change.

Note also the requirement in subparagraph (3)(o)1 for a table listing amendments to the zoning map. Typically, when an ordinance amending the zoning map is enacted, the ordinance contains a legal description of the property. Sometimes errors can inadvertently occur in the transfer of the written description (often in metes and bounds) to the graphic representation of the description on zoning map. Listing the ordinance number of the amending ordinance will allow for a check on the accuracy of the map amendment in case of a later dispute over interpretation.

Billboard and Sign Regulation

Under the Federal Highway Beautification Act[95], states must prohibit all "outdoor advertising signs, displays, and devices" within 660 feet of the right-of-way of federal interstate and primary highways. The Act provides that, in non-urban areas, outdoor advertising must not be visible from the same highways if installed with the intent of being thus visible, with an exemption for on-premises signs. Areas zoned for commercial and industrial uses are also exempt from the Act. Any state that does not comply with the Act is subject to a 10 percent penalty of its state federal-aid highway funds. The Act does not preempt state controls of outdoor advertising, nor does it bar local governments from enacting strict billboard regulations. The removal of nonconforming signs along federal highways is authorized; compensation is required, but the federal government shares 75 percent of the cost with the state. The law effectively prohibits the use of amortization of signs along nonconforming federal highways by state and local governments, in that sign removal without compensation, or in less than five years after nonconformity, incurs the highway funding penalty. Every state has adopted a statute or statutes to expressly implement the Highway Beautification Act, and some of these statutes impose more stringent controls on billboards than required by the federal law.

Alaska[96] bans all outdoor advertising except as expressly permitted by statute.[97] No outdoor advertising which is visible from, an interstate, primary, or secondary highway is permitted except for directional signs, on-premises signs, signs of landmark (historic or artistic) significance, and advertisements on bus benches and garbage cans.[98] Signs in violation of the statute are nuisances and may be removed at the owner's expense[99], and violations are also punishable by fine.[100] Compensation for the removal of advertising signs is authorized but not required[101]. Municipal ordinances regulating outdoor advertising more restrictively than the state statute are expressly authorized.[102]

Hawaii[103] prohibits all outdoor advertising visible from any state or federal-aid highway, with the exception of directional signs, signs advertising on-premises activities, and signs in lawful existence on October 22, 1965 and deemed by the state to be landmark signs.[104] Signs may be required to be removed five years after becoming nonconforming,[105] but compensation must be paid, although that compensation includes only the loss of rights in the sign and land.[106] Signs in violation of the statute are nuisances,[107] and violations of the statute are subject to fine and imprisonment[108]. More restrictive regulations of signs may be adopted.[109]

Hawaiian counties are also expressly authorized[110] to regulate "outdoor advertising devices," with the exception of official signs, on-premises signs for meetings, businesses, residences, sale or lease of property, warning signs, political advertisements within a certain time before and after an election, "grandfathered" signs older than July 8, 1965, and some other minor exceptions.[111] The licensing of both signs and the billboard advertising business are authorized, but no more than $100 a year may be charged for the business license or $25 a year for each billboard license.[112] County regulations may be enforced civilly[113] and criminally[114].

Maine[115] has delegated the power to regulate outdoor advertising visible from any public way — including municipal streets and county roads as well as state and federal highways — to the Commissioner of Transportation.[116] The commissioner is advised in this task by a Travel Information Advisory Council representing various interests: lodging, restaurants, garden clubs, agriculture, recreational facilities, environmental organizations, historical and cultural institutions, sign designers, and the general public.[117] Business direction signs may be permitted, subject to regulations adopted by the commissioner that govern their location, size, color, shape, lighting, and other aspects.[118] The license fee for business direction signs is fixed at $30 initially and the same amount for annual renewal.[119] On-premises signs do not require a license or permit, but may be regulated. Specifically, they cannot be located more than 1000 feet from the "principal building" of the establishment or within a specified distance of the public way, exceed 25 feet above the ground or 10 feet above the building to which they are attached, be located on rocks or other natural features, block views of traffic, or use lighting or movement.[120] Other signs not requiring permits can be summarized as either temporary signs (political signs, placards on trucks and train cars, advertisements for fairs and expositions) or signs considered to be noncommercial (signs for religious or civic meetings, memorials, signs for historic or cultural institutions, etc.)[121]. In granting permits for business direction signs, the Commissioner is required to consider "such factors as the effect upon highway safety, the convenience of the traveling public, and the preservation of scenic beauty."[122] Business direction signs may be located only where travelers must change roads to reach the establishment advertised, no more than six business direction sign licenses may be granted for any one establishment, and no business direction sign may be located more than 10 miles from the establishment advertised.[123] The removal of nonconforming signs, lawful as of the first day of 1978, must be compensated if performed under the state's statutory authority; lawful sign removal under some other law or authority need not be compensated.[124] Amortization of signs lawful as of 1978 was authorized to extend up to six years.[125] Unlawful signs may be removed at the owner's expense,[126] and fines may be imposed.[127] Stricter local ordinances, consistent with the state statute, are expressly allowed. [128]

Rhode Island[129] bans all outdoor advertising signs on interstate, federal, or state highways with the exception of on-premises signs, bus-shelter signs up to 24 square feet in area, and existing lawful signs.[130] The outdoor advertising permitted by statute must have a permit from the state Director of Transportation, who may adopt regulations under the statute.[131] Signs in violation of the statute may be removed by the director as a public nuisance after due notice and a 30-day period for the owner to place the sign in compliance with the law,[132] and violations of the statute may be punished by fines up to $500.[133] Lawfully-erected nonconforming signs may not be required to be removed less than five years from becoming nonconforming[134], and compensation is due for the removal of lawfully-erected signs[135]. Existing lawful signs may be moved with approval of all relevant governments if the sign is the same size or smaller and conforms to the applicable municipal comprehensive plan and zoning ordinance[136]. Ordinances or regulations more restrictive than the statute may be adopted.[137]

Vermont[138] prohibits all signs "visible to the travelling public" except as expressly permitted by the state. The enforcement of the statute, including the adoption of regulations, is delegated to the Travel Information Council (TIC), consisting of seven members representing the state Department of Commerce and Community Development, the lodging industry, restaurant industry, recreation industry, transportation, agriculture, and the general public.[139] Off-premise signs directing the public to a business require a license from the TIC.[140] With limited exceptions, they must be located in the same community as the business they advertise and near the place where one must exit or change highways to reach that business, and the TIC may restrict the number of such signs at any one location and for any one business. On-premises signs are limited to 150 square feet (except for real estate sales or lease signs, which may not exceed 6 square feet) and cannot be more than 1500 feet from the nearest highway entrance nor exceed 25 feet above the ground or 10 feet above the roof of the building to which it is attached.[141] No sign may resemble an official traffic control sign, block the clear view of traffic, employ lights or moving parts, be attached to a tree or rock, or advertise an out-of-state or terminated business or product.[142] Noncompliant signs, except for those lawfully existing on March 23, 1968, may be removed by the TIC or state transportation agency,[143] and violators may be fined or imprisoned.[144] The statute and the regulations of the TIC expressly do not preclude stricter regulation of signs by local governments.[145]

Other states with billboard regulations more stringent than required by the Federal Highway Beautification Act include Missouri[146] and Oregon[147]

The Growing Smart Legislative Guidebook expressly authorizes local governments to regulate the "location, period of display, size, height, spacing, movement, and aesthetic features of signs, including the locations at which signs may and may not be placed."[148] However, it does not authorize regulation of content. The regulation of signs and billboards is also effectively authorized by the provision enabling local governments to control "development and land use that may affect access to air, light, views and scenic resources, and solar energy."[149] The amortization of nonconforming signs (and other uses) is expressly authorized[150] by the Guidebook as well. The local government may plan and coordinate its regulation of signs and billboards either as part of the land-use element of the local comprehensive plan[151], or, if the issue of sign control is considered to be of particular importance, through an optional agriculture, forest, and scenic preservation element[152].


8-201 Zoning Ordinance

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

(2) A zoning ordinance may regulate the following:

 

(a) types and classes of development and land use;

(b) density, intensity, and scale of development and land use, including minimum and maximum densities and intensities;

(c) area and dimensions of parcels or lots of land;

(d) area, height, number of stories, floor area ratio, size, and aesthetic aspects of buildings and other structures;

(e) architectural and design features of buildings and other structures that are located in designated historic or design districts, or that are designated historic landmarks, pursuant to Section [9—301];

(f) placement of buildings and other structures upon parcels or lots of land, including but not limited to maximum or minimum setbacks from the borders of parcels or lots and provisions for yards, plazas, or other open space;

(g) access of parcels or lots of land to adequate streets, roads, and other thoroughfares, including but not limited to trails dedicated to use by pedestrians and/or bicycles and similar conveyances, and to adequate public utilities, including but not limited to easements for and connections to the wires, pipes, antennae, or other equipment used to provide the public utility service;

(h) location, period of display, size, height, spacing, movement, and aesthetic features of signs, including the locations at which signs may and may not be placed;

(i) provision of parking facilities for vehicles and parking and storage facilities for bicycles or similar conveyances;

(j) buffering, landscaping, and screening of development and land use;

(k) development and land use that may affect access to air, light, views and scenic resources, and solar energy;

(l) development and land use that may affect drainage and stormwater runoff,

(m) development and land use that may affect soil erosion or sedimentation;

(n) development and land use that may affect the quality of air, water, and groundwater and/or the quantity of water and groundwater;

(o) development and land use that may affect critical and sensitive areas, or natural hazards areas, including floodplains, pursuant to Section [9-101].

(3) A zoning ordinance adopted pursuant to this Section shall consist of the ordinance text, together with all charts, tables, graphs, and other explanatory matter, and the zoning map with any explanatory matter shown thereon. A zoning ordinance shall include the following minimum provisions:

 

(a) a citation to enabling authority to adopt and amend the zoning 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[, if one exists,] that is based on findings made pursuant to Section [8-104];

• If a local comprehensive plan is mandatory, the bracketed language is unnecessary.

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

(e) division into zoning use districts. The zoning ordinance shall divide the area of the local government into zoning use districts of such number, kind, type, shape, and area as may be deemed suitable to carry out the purposes of land development regulations pursuant to Section [8-102(2)]. Within such districts, the zoning ordinance may regulate development and land use. All such regulations shall be uniform for each class or kind of development or land use throughout each district, but the regulations in one district may differ from those in other districts;

(f) provisions for interpreting the boundaries of zoning use districts;

(g) a listing of all land uses and/or performance standards for uses that shall be permitted within the zoning use districts;

(h) provisions for nonconformities pursuant to Section [8-502];

(i) provisions for a hearing examiner pursuant to Sections [10-301] to [10-307] and/or for a Land-Use Board of Review pursuant to Sections [10-401] to [10-405];

(j) provisions for conditional uses and variances, pursuant to Sections [10-501] to [10-503], inclusive, and Sections [10-505] to [10-507], inclusive;

(k) a unified development permit review process pursuant to Sections [10-201] to [10-207], inclusive, and [10-209] to [10-211], inclusive;

(l) provisions for adoption and amendment of the zoning ordinance pursuant to Section [8-103];

(m) provisions for enforcement pursuant to Chapter [11]; and

(n) a reproducible zoning map or map series at a suitable scale that shows at a minimum:

  1. the names of and symbols for the zoning use districts and any overlay districts;
 
  1. the boundaries of the zoning use districts overlaid onto a base map of the local government. Where the local government has adopted a historic preservation ordinance, a design review ordinance, a critical and sensitive areas ordinance, a natural hazards ordinance, or any other land development regulation that employs an overlay district, the zoning map shall show the boundaries of the overlay district. The zoning map shall also show the location of historic landmarks, where they have been designated;
 
  1. a map scale;
 
  1. a table that lists any amendments to the zoning map by reference to an ordinance number and date of enactment and that includes a certification of such amendments by the clerk of the legislative body and the director of the local planning agency. The table shall list any ordinances delineating any overlay districts as well as ordinances designating historic landmarks. If there is a discrepancy between the legal description of property that is the subject of an ordinance amending the zoning map and the graphic representation of the boundaries of zoning use districts or overlay districts affecting that property on the zoning map, the legal description shall control; and
 
  1. a table that lists any changes to the base map of the local government that includes a summary of the change, the date it was made, and the certification of such change by the director of the local planning agency. For the purposes of this Section, a change to the base map shall be considered a ministerial act, and shall not constitute an amendment to the zoning map.

     

(4) A zoning ordinance shall:

(a) provide a reasonable use as of right for every lot or parcel;

• This provision requires that every property have a zoned land use as of right. While a zoning ordinance may provide for conditional uses for a lot or parcel pursuant to Section 10-502, the approval of which is discretionary, that property must also have an underlying use permitted as of right.

(b) not contain a minimum floor area requirement for residential units, or for any class or type of residential unit, except for a minimum floor area requirement expressed in terms of a minimum floor area per occupant, or given number of occupants, per unit. The minimum floor area requirement may provide for smaller or declining increments of floor area per occupant in excess of the first occupant; and

• In other words, a requirement that a residence have a minimum of 2500 square feet is not permissible, but a provision requiring 300 square feet for each person dwelling in a residence is proper. The last sentence authorizes a regulatory system where, for example, the first occupant must have 300 square feet but an additional occupant entails an additional 100 square feet only.

(c) not prohibit, or restrict the location of, a permanently-sited manufactured home in any zoning use district in which single family residences are permitted as of right. A local government, however, may require that all permanently-sited manufactured homes comply with all zoning requirements that are uniformly imposed on all single family residences in the relevant zoning use district except for:

1. requirements that do not comply with the standards established pursuant to the Federal Manufactured Housing Construction and Safety Standards Act of 1974 as amended, codified at 42 U.S.C. 5401 et seq.; and

2. requirements that specify a minimum roof pitch, except that such requirements in a historic preservation ordinance pursuant to Section [9-301] may be applied.

—This provision on manufactured housing is adapted from Ohio Rev. Code 303.212, 519.212, and 3781.06. It is intended to ensure that manufactured housing is treated the same as site-built housing and that manufactured single-family housing may be placed in any single-family residential use district.

(5) A zoning ordinance may authorize or require:

(a) traditional neighborhood development zoning use districts or overlay districts, in which development is governed by site planning standards intended to ensure:

1. the creation of compact neighborhoods oriented toward pedestrian activity and including an identifiable neighborhood center, commons, or square;

2. a variety of housing types, jobs, shopping, services, and public facilities;

3. residences, shops, workplaces, and public buildings interwoven within the neighborhood, all within close proximity;

4. a pattern of interconnecting streets and blocks, preferably in a rectilinear or grid pattern, that encourages multiple routes from origins to destinations;

5. a coordinated transportation system with a hierarchy of appropriately designed facilities for pedestrians, bicycles, public transit, and automotive vehicles;

6. natural features and undisturbed areas that are incorporated into the open space of the neighborhood;

7. well-configured squares, greens, landscaped streets, and parks woven into the pattern of the neighborhood;

8. public buildings, open spaces, and other visual features that act as landmarks, symbols, and focal points for community identity;

9. compatibility of buildings and other improvements as determined by their arrangement, bulk, form, character, and landscaping to establish a livable, harmonious, and diverse environment; and

10. public and private buildings that form a consistent, distinct edge, are oriented toward streets, and define the border between the public street space and the private block interior.

The site planning standards may be supplemented by the adoption, by ordinance, of a manual of graphic and written design guidelines to assist applicants in the preparation of proposals for a traditional neighborhood development.

• This language is intended to encourage local governments to formulate design standards that will encourage traditional neighborhood development through mixing of land uses, increased density, walkability, and urban design elements such as front porches, rear alleys, grid streets, zero-lot lines, ground level retail areas, and town squares. Such development, which has also been termed "new urbanism" or "neotraditional development," has gained, or regained, increasing acceptance in the U.S. beginning in the early 1990s. Note that Section 8-303(8) and (9) also authorize traditional neighborhood development in the context of planned unit development, or PUD.

(b) [other].


Review of Plats and Plans

Commentary: Subdivision Ordinances and Subdivision Review

A subdivision ordinance is a land development regulation that governs the division of land into two or more lots, parcels, and sites for building.[154] Such an ordinance includes procedures and standards that affect the design and layout of lots, streets, utilities, and other public improvements. The ordinance usually contains or makes reference to minimum engineering specifications or development standards, requires improvement guarantees, or performance bonds, to ensure that the public improvements are built by the developer as approved and within a certain period, and may provide for fees-in-lieu for facilities such as parks that are built off-site. It protects purchasers of land by ensuring that public improvements are available when it is time to build on the lots and by providing a mechanism for the official recording of lots with the appropriate governmental agency. Because a subdivision ordinance affects the lot configuration and street pattern, it is often thought to have more influence on urban form and is more permanent (or less easily changed) than zoning.

All states have statutes[155] authorizing subdivision regulation, although municipal charters may also provide for such controls. State and local legislation may also exempt certain types of land subdivision from detailed local review, or any review at all. This typically occurs when no public improvements or land dedication is required, and only a few lots are created. These are called minor subdivisions or lot splits. Also, legislation may provide for resubdivision, which occurs when lot lines are changed (for example, if a street is widened), or when lots are combined to form larger lots (for example, when a larger lot is required to meet minimum requirements for a different use). This latter type of resubdivision is often called lot consolidation.

The Subdivision Review Process

Typically subdivision regulation is a two to three-part process.[156] In some communities, there is an informal, nonbinding review of a sketch plan showing a proposed lot configuration and street location. If there is no sketch plan review, the process really begins when the developer submits a preliminary plan for the initial planning and layout of streets and lots, and type, size, and placement of utilities. The preliminary plan shows topographic contour lines — the result of a survey of the site — and other site features such as streams and ponds, large trees, and other vegetation, flood hazard areas, and existing buildings. Often the preliminary plan will cover an area that is larger than the portion that will be initially developed. A developer may wish to improve only that portion of the site that may be sold as lots within one to two years. Consequently, the preliminary plan may show the phases in which the subdivision will be built.

After the local government has approved the preliminary plan, with or without conditions, the developer goes ahead with the preparation of the final plat, prepared by a surveyor. The final plat is a precise drawing that contains the necessary information that will fix the location of lots and streets with reference to survey markers or monuments, such as iron pins driven deep into the ground or concrete monuments. The drawing will be the means by which streets and other proposed public improvements are conveyed to and accepted by the local government after the developer constructs them to the government's standards. The final plat is accompanied by engineering drawings and supporting technical analyses, such as those dealing with stormwater or water pressure. These drawings describe the construction of public and private improvements, and other site development modifications such as site grading. Some plats may be accompanied by plans to control erosion and sedimentation during site development, or to address specialized issues such as impact on existing wetlands. The engineering drawings will show proposed vertical and horizontal profiles of streets, water and sewer lines, location of street lights and fire hydrants, sidewalks, design of detention and retention basins, and construction specifications, such as type of concrete or asphalt used and depth of pavement and aggregate base.

After the local government reviews and approves the final plat, along with the engineering drawings, and the developer makes any additional changes that may be required, the plat is almost ready for recording. But before that occurs, the developer must first construct the required improvements or post a bond that will ensure that the improvements will be constructed as approved within a certain period. Should the developer fail to complete the improvements, the local government may used the bond to pay for the installation of the improvements. If the developer completes the improvements or posts the bond, the plat is recorded in the county land records, usually in the form of a reproducible mylar or linen drawing and, sometimes, in electronic form. When site development work is completed, the developer requests a release of the performance bond and, if the improvements have been installed properly (as determined through an inspection by the local government's engineer), the local government releases the bond and accepts responsibility for the improvements as public improvements. Some communities may also require a maintenance bond to ensure that the infrastructure will survive one to two years.

Who Reviews Subdivisions?

In some states and communities, the review of subdivisions is the purview of the local planner and planning commission. For example, in Rhode Island and New Jersey, the review and approval process is chiefly handled by the city or town planning board.[157] In others the legislative body may be involved. In California, the legislative body approves the final plat, but may be advised by the local planning commission or some other advisory agency.[158] In Kentucky, a planning commission or the county fiscal court may have authority to approve subdivisions.[159] In Ohio, county or regional planning commissions are responsible for subdivision approvals in unincorporated areas, but if there is no planning commission, then the board of county commissioners assume responsibility.[160]

Model Acts for Subdivision Control

The Standard City Planning Enabling Act (SCPEA), published in 1928, authorized subdivision regulation.[161] Under the SCPEA, the municipal planning commission was given the power to review and approve subdivisions both within the municipality's jurisdiction and within a five-mile radius of the municipality's boundaries.[162] This power was conditioned upon the commission first adopting a major street plan and then adopting regulations. (Note that the regulations need not be adopted by the local legislative body.) The SCPEA allowed the commission to give "tentative" and "final" approval of the plat, to accept a bond with surety, and to enforce the bond.[163] The tentative approval was just that, and could be revoked. The commission was required to approve or disapprove a plat within 30 days after it was submitted; if the commission did not take action, the plat was deemed to have been approved and a certificate so attesting was to be issued by the commission on demand.

The SCPEA required the planning commission to hold a public hearing on any plat submitted to it and to provide notice of the hearing to adjoining property owners as well as the applicant. Approved plats were treated as amendments to the municipal plan. The planning commission was also give the power to "agree with the applicant upon use, height, area or bulk requirements or restrictions governing buildings, provided such requirements or restrictions do not authorize the violation of the then-effective zoning ordinance of the municipality."[164] The SCPEA established penalties for transferring lots in unapproved subdivisions and gave the municipality the power to enjoin such transfers and to recover penalties by civil action. A county recorder who filed or recorded a subdivision without the approval of the planning commission was to be guilty of a misdemeanor and could be fined from $100 to $500.

A 1935 model act drafted by attorneys Edward M. Bassett and Frank B. Williams was similar to the SCPEA, but also included general standards that a planning commission was to apply in approving a plat where the standards were relevant to the public improvements contained in the plat.[165] The standards related to such topics as street width, access for fire-fighting equipment to buildings, and size of neighborhood playgrounds or other recreation uses. Attorney Alfred Bettman also drafted in 1935 a model subdivision statute similar to the SCPEA.[166] Bettman emphasized that in his model the platting jurisdiction was given to the planning commission, with the power left in the legislative body of finally determining the location of public streets or other public lands, a two-thirds vote being required to overrule the planning commission's disapproval of the location.[167]

The American Law Institute's Model Land Development Code did not contain detailed subdivision provisions. Instead, it treated the division of land into parcels as "general development," authorized as of right under the development regulations, or "special development permits," issued after notice and hearing of a type similar to that required for variances and special exceptions.[168] The Code also contained a provision that required the recorder to refuse to record any map unless he has a statement from the local government that the approval of recordation is not required or a statement that approval has been given.[169]

A model statute published by the now-defunct U.S. Advisory Commission on Intergovernmental Relations in 1975 authorized county subdivision regulation, but, other than providing a list of purposes that such regulation should serve, did not detail the contents of an ordinance or the manner in which it was to be administered.[170]

Growing Smart Model Statute for Subdivision Control

The model statute in Section 8-301 below is drawn in part from the SCPEA, and state statutes from Kentucky, New Jersey, and Rhode Island.[171] The model requires the adoption of a subdivision ordinance and describes minimum and optional contents of such an ordinance. It follows the general categories of subdivisions outlined in the commentary above. However, it does not describe the exact procedures for approval or the bodies who would approve subdivisions (the exception being the final plat, which is the responsibility of the legislative body to approve). The procedures for issuance of development permits are covered as part of the unified development permit review process in Sections 10-201 et seq. of the Legislative Guidebook. Nor does the model describe in detail the contents of a plat, as do some state statutes.[172] This is more appropriate for the subdivision ordinance itself, or for an administrative rule by a state agency or county recording agency that accepts the plats and that is under the supervision of the state.

Note that all forms of subdivision are subject to local government review under this model by virtue of the definition of "subdivision." There are no exemptions in the definition to bypass the subdivision review process, although review is abbreviated for minor subdivisions and resubdivisions. The intent is that subdivision review is an important local government function and is not to be dodged through exemptions that evade public scrutiny.


8-301 Subdivision Ordinance; Review and Approval of Subdivision by Local Government

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

(2) The purposes of a subdivision ordinance, in addition to the purposes of land development regulations as stated in Section [8-102(2)], are to:

(a) establish reasonable standards of design and procedures for the division and redivision of land into lots, parcels, or sites for building;

(b) further the design of subdivisions that are well-integrated with surrounding neighborhoods and areas with regard to natural and built features;

(c) ensure proper legal descriptions and monumentation of land that has been subdivided;

(d) provide for the fair, orderly, thorough, and expeditious public review of subdivisions;

(e) secure safety from fire, flood, and other danger;

(f) ensure compliance of proposed subdivisions with the zoning ordinance, where such an ordinance exists; and

[(g) implement the corridor map pursuant to Section [7-501];]

[(3) The legislative body of a local government shall adopt and amend a subdivision ordinance only after it has adopted a local comprehensive plan.]

• The bracketed language in paragraph (3) should be omitted if there is no requirement to adopt a comprehensive plan. See also subparagraph (5)(c) below, where the bracketed language should also be omitted.

(4) No person or his or her agent shall subdivide any land until the minor subdivision, resubdivision, or final plat designating the areas to be subdivided has been approved pursuant to this Section by the local government having jurisdiction over the land.

(a) No minor subdivision, resubdivision, or final plat shall be recorded by the county [recorder of deeds] until it has been approved by the local government and the approval entered in writing thereon by a duly authorized officer of the local government as designated in the subdivision ordinance.[173]

(b) Any purported subdivision of land or plat recordation of a minor subdivision, resubdivision, or final plat that has not been so approved is void.

(5) A subdivision ordinance adopted pursuant to this Section shall include the following minimum provisions:

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

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

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

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

(e) procedures for review of minor subdivisions and resubdivisions, including specification of all application documents and other documents to be submitted;

(f) procedures for review of preliminary plans, including specification of all application documents and other documents to be submitted, and procedures for review by affected public utilities and those agencies of local[,] [and] state [, and federal] government having a substantial interest in the proposed subdivision, provided however that a utility or agency may not delay the local government's action on the preliminary plan beyond the time limits specified in this Act. The failure of any agency to complete a review of the preliminary plan shall not be a basis for disapproval of the preliminary plan by the local government;

The language in subparagraph (5)(f) assumes that the major coordination with agencies external to the local government would be done in the preliminary plan stage. For example, it is in this stage that the public utility would indicate its preference for where easements are to be located in the subdivision. This language is drawn from Montana statutes.[174]

(g) procedures for review of final plats, including specification of all application documents and other documents to be submitted and requirements for format [as prescribed by the state planning agency, the county recorder, or other official or agency];

(h) criteria and standards to be applied in review of minor subdivisions and resubdivisions, preliminary plans, and final plats, including requirement for compliance with the zoning ordinance, if one exists.[175] Such standards shall require that:

1. all lots and parcels in a subdivision shall have frontage on and access to either an existing public road or highway or to a road or street in the subdivision required by the local government through an improvements and exactions ordinance pursuant to Section [8-601];

• Section 8-601 authorizes local governments to require the construction of streets as a condition of subdivision approval. The streets may be dedicated to the local government or may be privately owned, but in either case must be built to local government standards.

2. a preliminary subdivision shall identify any natural hazard areas, and any flood-prone or special flood hazard areas and the base flood elevation, as applicable; and

3. a minor subdivision, resubdivision, or final plat shall provide the minimum elevation of proposed structures and pads in the event that the plat includes any land in a flood-prone or special flood hazard area. The minimum elevations specified may exceed those necessary to place structures and pads outside the identified flood-prone or special flood hazard areas as is necessary to protect the public health, safety, environment, or general welfare;

• Language in subparagraph (5)(h)(2) and (3) regarding flood hazards is intended to ensure that the statute is consistent with the Federal National Flood Insurance Program (NFIP). The performance standards for subdivision regulations for NFIP appear at 44 C.F.R. 60.3 (a)(4), (b)(3), and (c)(11).[176] Note that the provision above authorizes standards stricter than those mandated by the NFIP.

(i) provisions requiring public and/or nonpublic improvements, and/or the payment of impact fees, incorporating by reference the improvements and exactions ordinance pursuant to Section [8-601] and/or the development impact fee ordinance pursuant to Section [8-602];

(j) procedures for recording of minor subdivisions, resubdivisions, and final plats, including the designation of an administrative officer of the local government to enter in writing the approval of the local government upon minor subdivisions, resubdivisions, and final plats;

(k) procedures for enforcement and penalties that are consistent with the provisions of Chapter 11 of this Act;

(l) requirements for monumentation of the boundary lines of lots and parcels and of the subdivision;

(m) where a corridor map has been adopted pursuant to Section [7-501], provisions for reviewing minor subdivisions, resubdivisions, preliminary plans, and final plats as they relate to land reserved for transportation facilities on the corridor map.

(n) procedures for vacation of subdivisions, pursuant to paragraph (12).

(6) A subdivision ordinance adopted pursuant to this Section may include the following provisions:

(a) procedures for preapplication meetings to allow the applicant for a subdivision to meet with appropriate officials of the local government, including members of the local planning commission, if one exists, and, where appropriate, officials of state [and federal] agencies, for advice and guidance as to the required steps in the subdivision approval and land development process, pertinent local plans, the subdivision ordinance, and other land development regulations that may bear upon the subdivision. Such meetings shall aim to encourage information sharing among the participants, but shall not be considered to be approval of a subdivision, in whole or in part;

(b) provisions for a preliminary plan to be divided into reasonable phases, and thereafter the review of final plats by the local government according to the phases designated in the preliminary plan;

(c) provisions that require that minor subdivisions, resubdivisions, and final plats are submitted in an electronic, computer-readable format;

(d) procedures and standards for extending or oversizing water lines, storm sewers, stormwater retention and detention facilities, and other public improvements that serve or will serve property other than the property contained in a subdivision and for reimbursing the subdivider for the additional cost involved in constructing such public improvements;

[(e) provision for dedication of land or fees-in-lieu for parks, recreation, and open space and for school sites, pursuant to Section [8-601];]

[(f) for local governments that are municipalities, provision for review and approval of subdivisions within [5] miles of the corporate limits of the municipality and not located in any other municipality, except, in the case of any such [nonmunicipal or unincorporated] land lying within [5] miles of more than one municipality, the jurisdiction of each such municipality shall terminate at a boundary line equidistant from the respective corporate limits of such municipalities; and][1177]

• The intent of extraterritorial review is to ensure that subdivided lands that may eventually be annexed by a municipality meet its development standards and related requirements. The bracketed subparagraph (5)(f) may be omitted if it is desired that municipalities not have extraterritorial review authority. Alternately, the language may be modified to provided for a joint review between a county planning agency, with review authority over plats in unincorporated areas, and a municipality.

 

(g) [other].

(7) The approval of a minor subdivision, resubdivision, or a final plat pursuant to this Section shall constitute a development permit. An application for a preliminary plan shall constitute an application for both the preliminary plan and the final plat solely for purposes of vesting pursuant to Section [8-501], unless and until the preliminary plan is no longer valid pursuant to subparagraph (7)(b) below.

• Thus, for a subdivision that must have both a preliminary plan and a final plat, the vested right to have a development permit application evaluated under existing regulations only is created by the application for the preliminary plan and lasts through the review of the final plat as long as the owner applies for final plat approval within two years of the approval of the preliminary plan.

 

(a) The denial or approval, with or without conditions, of a preliminary plan shall not constitute a development permit, but a preliminary plan shall be reviewed in the manner prescribed in Section [10-201] et seq. as if it were an application for a development permit. However, the denial of a preliminary plan shall be reviewable as a land-use decision pursuant to Chapter [10] of this Act, as shall conditions to the approval of a preliminary plan that are conditions precedent to approval of a final plat.

(b) The approval of a preliminary plan shall expire [2] years from the date of approval by the local government, shall include all general and specific conditions shown on the approved preliminary plan drawings and supporting material, and may only be extended in the manner described in Section [8-501(5)].

(c) An approved minor subdivision, resubdivision, or final plat shall be recorded within [1] year from the date of approval by the local government after which such approval shall expire and may only be extended in the manner described in Section [8-501(5)].

• Paragraph (7) makes it clear which categories of subdivision are actually to be the subject of a development permit that would authorize development to commence. A preliminary plan, however, does not result in subdivision development and is simply a step, albeit an important one, in the process leading to the review of a final plat.[178] Nonetheless, because the denial of a preliminary plan or an approval that contains conditions precedent to the approval of a final plat can affect whether or not an application for a final plat can even be submitted, this paragraph allows the review of a preliminary plan as a land-use decision under Chapter 10 of the Guidebook.

 

(8) The subdivision ordinance shall provide for an administrative review, pursuant to Section [10-204], on development permits for minor subdivisions and resubdivisions. The subdivision ordinance may designate the legislative body, local planning agency, the local planning commission, or a hearing examiner to review, and approve or deny, minor subdivisions and resubdivisions.

(9) The subdivision ordinance shall provide for either an administrative review pursuant to Section [10-204] or a record hearing pursuant to Section [10-207] on preliminary plans, and shall designate the legislative body, local planning agency, local planning commission, a hearing examiner, or some combination thereof, to conduct the administrative review or hearing. The subdivision ordinance shall designate one of these bodies to approve or deny preliminary plans.

(10) The subdivision ordinance shall provide for a record hearing, pursuant to Section [10-207], by the local planning agency, a hearing examiner, the local planning commission, or the legislative body on development permits for final plats. The subdivision ordinance shall provide that approval of a final plat must be by ordinance of the legislative body after such hearing.

(11) A subdivision may be vacated, in part or in full.

(a) Vacation shall occur when:

1. the owners of all lots or parcels in the subdivision consent in writing to the vacation, and the local government approves the vacation in the same manner as a resubdivision;

2. the legislative body finds in writing, after a hearing with proper notice, that a hazard, unknown to the local government at the time the subdivision was approved, exists on or near the property that would endanger the public health or safety if development were to commence or proceed pursuant to the terms and conditions of the subdivision approval;

3. the legislative body finds in writing, after a hearing with proper notice, that there is an error in the subdivision or the plat thereof; or

4. the legislative body by ordinance declares that a public improvement in a subdivision is no longer needed by the local government, but such a vacation shall apply only to the extent of the public improvement so declared.

• This provision is based upon N.H. Rev. Stat. 676:4-a (1999).

(b) For a vacation pursuant to subparagraphs (12)(a)2., 3., or 4. above, the legislative body must also find in writing that the vacation will not adversely affect the interests or rights of persons in the subdivision being vacated.

(c) When vacation is approved, an instrument of vacation, including the legal description of the subdivision and a copy of the plat to be vacated, shall be prepared and recorded with the county [recorder of deeds].


Commentary: Site Plan Review

[179]

A site plan is a scaled drawing that shows the layout and arrangement of buildings and open space, including parking and yard areas, the provision for access to and from the public street system, and, often, the location of facilities such as water and sewer lines and storm drainage systems. In the administration of land development regulations, site plan requirements appear in several forms. A site plan of some type is usually required for issuance of zoning permits that involve new construction or expansion of existing uses in order to check for compliance with the zoning regulations and to ensure that it is clear that the applicant knows which lot or parcel is being built upon. When an area variance (e.g., a variance requiring a departure from front, rear, or side lot line requirements) is needed, a site plan is necessary to show the relationship of the proposed building or use to the lot lines or other features, such as easements. Discretionary permitting procedures such as planned unit development and conditional uses, where the approving authority has the latitude to decide whether the proposed use is appropriate in the context of the surrounding area, require site plan review.

As used here, site plan review is limited to the examination of proposals for development of nonresidential and multifamily residential uses that are permitted as of right by the zoning ordinance, but where there is a limited degree of discretion in evaluating how well the proposal fits the characteristics of the site itself. Site plan review, for the purposes of this Section alone, does not involve determination of whether the particular use is appropriate in a specific location or area, since the zoning ordinance will have (or should have) already resolved that as a matter of legislative policy.[180]

In many communities, site plan review of this type is a function that is the responsibility of the local planning commission or board, although it could also be assigned as an administrative responsibility, either to the planning staff or a hearing officer. Indeed, where there is a planning staff that is capable of undertaking a review of proposed site plans as a matter of course of reviewing development permits, the site plan review procedure, as an extra step in the development process, will be unnecessary.

The late Professor Norman Williams, Jr., observed that the legal authorization for site plan review "originally came from the local governing body's statutory power to refer matters to the planning board for comment."[181] Some state courts have found the authority to conduct site plan review to be implied, absent express statutory authority.[182] Others found the power to require site plan review as part of the process to approve special exceptions (i.e., conditional uses) or zoning map amendments.[183]

A number of states have statutes that expressly authorize site plan review. Connecticut[184] allows local zoning regulations to require that a site plan be filed with the zoning commission or another municipal agency or officials to aid in determining the conformity of a proposed building, use or structure with specific provisions of such regulations. A site plan may be modified or denied only if it fails to comply with requirements already set forth in the zoning or inlands wetland regulations. Approval is presumed unless a decision to deny or modify the site plan is rendered within 65 days after receipt of the site plan, although an applicant may consent to extensions. A decision to deny or modify a site plan must set forth the reasons for such denial or modification and must be sent by certified mail to the applicant within 15 days after the decision is rendered.

Michigan allows a zoning ordinance to contain procedures and requirements for the submission and approval of site plans, which it defines as "the documents and drawings required by the zoning ordinance to ensure that a proposed land use or activity is in compliance with local ordinances and state and federal statutes."[185] The statute requires that the site plan be approved if it contains the information required by the zoning ordinance and is in compliance with the zoning ordinance, and the conditions imposed by it, other applicable ordinances, and state and federal statutes.[186]

New Hampshire allows a municipality that has adopted a zoning ordinance and subdivision regulations to adopt an ordinance or resolution to further authorize the planning board to "review and approve or disapprove site plans for the development or change or expansion of use of tracts of nonresidential uses or multifamily dwelling units, defined as any structures containing more than two dwelling units, whether or not such development includes a subdivision or resubdivision of the site."[187] Before it can conduct site plan review, the planning board must adopt site plan review regulations, the scope of which is described in general terms in the statute.[188]

New Jersey's site plan review requirements are lengthy and complex, in contrast to other states, and are grouped with the subdivision enabling legislation. Consequently, they provide for a two-step approval process, with preliminary site plan approval[189], and a final site plan approval[190]. The statute allows an abbreviated review for a "minor site plan,"[191] which means a "development plan for one or more lots which (1) proposes new development within the scope of development specifically permitted by ordinance as a minor site plan; (2) does not involve any new street or extension of any off-tract improvement, and (3) contains the information required in order to make an informed determination [that it meets the requirements established in the ordinance for approval as a minor site plan.]."[192] The statute includes a list of standards and requirements that may be included in a site plan ordinance.[193]

The New York statutes[194] are similar in approach to New Hampshire's in authorizing the local planning board or other administrative body as the entity to review the site plan. The local government may require a hearing, but the statutes do not mandate one. The New York statutes give the planning board or other authorized body the ability to impose such reasonable conditions and restrictions as are "directly related to and incidental" to a proposed site plan. These conditions must be met in connection with permit issuance.

Rhode Island authorizes:

development plan review of applications for uses that are permitted by right under the zoning ordinance, but the review must be based on specific and objective guidelines which mut be set forth in the zoning ordinance. The review body shall also be set forth in the zoning ordinance. A rejection of the application shall be considered an appealable decision pursuant to [state statute].[195]

The Rhode Island statute bars waivers of any regulations unless approved by the permitting authority pursuant to the local ordinance and the act itself.[196]

In contrast to variances and conditional uses, site plan review is limited to onsite conditions, unless the enabling legislation provides otherwise.[197] In one decision construing the New Jersey legislation, the court interpreted the site plan review statute to bar the denial of a site plan because of off-site traffic congestion. A site plan could be denied, said the court, only if the ingress and egress proposed by the plan creates "unsafe and inefficient vehicular circulation."[198] Other state court decisions have reached similar conclusions regarding the scope of site plan review.[199]

Model Statute

The model statute in Section 8-302 below gives the local government the authority to allow site plan review for nonresidential and multifamily residential uses that are permitted as of right, whether or not they require subdivision. However, the local government can elect to determine which nonresidential and multifamily residential uses should be the subject of site plan review and in which zoning use districts site plan review is to occur. Site plan review is to be incorporated into the unified development review process established under Section 10-201. Under that Section, the local government can assign review functions to the planning staff, the local planning commission, a hearing officer, or some other official. Review can occur either with a record hearing or an administrative review. The model statute describes the contents of a site plan review ordinance and identifies the types of standards that may be included in such an ordinance. It allows the approving authority to impose conditions that are directly related to the standards contained in the ordinance. Again, it is important to emphasize that where the planning staff is capable of checking site plans as a matter of course in the review of development permits, and the land development regulations are specific in terms of their requirements, a special separate site plan review procedure of the type described below will not be necessary. Instead, site plan review will occur as a matter of course, without the very narrow discretion authorized in this model.


8-302 Site Plan Review

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

(2) As used in this Section:

(a) "Site Plan" means a scaled drawing that shows the development of lots, tracts, or parcels, whether or not such development constitutes a subdivision or resubdivision of the site. A site plan may include elevations, sections, and other architectural, landscape, and engineering drawings as may be necessary to explain elements of the development subject to review; and

(b) "Multifamily Residential Use" means a land use employing any structures that contain more than [2] dwelling units.

(3) Site plan review shall be limited to those nonresidential uses and multifamily residential uses as may be listed in the site plan review ordinance.

[(4) The legislative body of a local government shall adopt and amend a site plan review ordinance only after it has adopted a local comprehensive plan.]

(5) A site plan review ordinance adopted pursuant to this Section shall include the following minimum provisions:

(a) a citation to enabling authority to adopt and amend the site plan 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 site plan review ordinance. Where this Act defines words or terms, the site plan review ordinance shall incorporate those definitions, either directly or by reference;

(e) a list of the nonresidential and multifamily uses that require site plan review, provided that the site plan review ordinance may only apply to those uses that are permitted as of right by the zoning ordinance in a particular zoning use district;

(f) specifications, or reference to specifications, for all application documents and plan drawings;

(g) provisions describing the manner of review pursuant to paragraph (6) below; and

(h) provisions requiring public and/or nonpublic improvements, and/or the payment of impact fees, incorporating by reference the improvements and exactions ordinance pursuant to Section [8-601] and/or the development impact fee ordinance pursuant to Section [8-602];

(i) standards limited to:

1. preservation of natural resources existing on the site, including topography, vegetation, floodplains, marshes, and watercourses;

2. minimizing exposure of buildings, structures, and other improvements to the effects of natural hazards;

3. safe and efficient vehicular and pedestrian circulation, parking, and loading on the site;

4. screening, landscaping, and location of structures on the site;

5. adequacy and location of water lines, sewer lines, storm drainage, and other utilities on the site

6. type and location of exterior lighting on the site in addition to any requirements for street lighting;[200] and

7. [other].

(6) The approval of a site plan shall constitute a development permit. The site plan review shall be part of the unified development permit review process established pursuant to Section [10-201]. The site plan review ordinance shall state whether or not a record hearing is required as a condition precedent to the approval of the development permit.

(7) When an officer or body of the local government approves a site plan pursuant to this Section, it may adopt such conditions which, in its opinion, are directly related to standards described in subparagraph (5)(i), provided such conditions do not conflict with or waive any other applicable requirement of the zoning ordinance. The officer or body shall base any conditions it adopts on competent, credible evidence it shall incorporate into the record and its decision. A failure to comply with an approved condition is a violation of the land development regulations. A site plan shall be approved if it contains the information required by the site plan review ordinance and complies with the applicable zoning ordinance requirements. If the officer or body approving the site plan adopts conditions pursuant to this paragraph, the site plan shall be revised to include such conditions before the development permit is issued.

(8) This Section does not allow an officer or body of a local government, in a decision on a development permit for a site plan, to prohibit or deny a use that is permitted as of right by the applicable zoning use district. The enactment of a site plan review ordinance pursuant to this Section shall not preclude any discretionary review of any site plan in conjunction with a planned unit development pursuant to Section [8-303] or with a conditional use pursuant to Section [10-502].


Commentary: Planned Unit Development

Traditional zoning codes adopted by local governments under the Standard Zoning Enabling Act were intended to regulate development and land use on a lot-by-lot basis. When large-scale residential and commercial developments began to appear in the 1950s and 1960s, zoning fell short of meeting the need to mix land uses, provide transitions between zones, preserve open space, and provide standards for improvements and amenities such as roads, parks, and utilities. Rigid zoning controls also squelched creativity in land planning, site design, and protection of environmentally sensitive lands.

In the 1950s, cluster developments constituted a response to the proliferation of monotonous subdivisions of identical single-family detached houses.[201] These newer developments featured transfers of density from one part of the site to another where dwelling units were grouped or concentrated, common open space that was often managed by a community or homeowners association, and curvilinear and circular street patterns.

With prototypes of large developments emerging everywhere in the late 1950s and 1960s, the only thing lacking was a legal construct in which local governments could manage the desired flexibility and innovation. Enter planned unit developments (PUD). The intent of the PUD zoning provisions, and later, state enabling legislation adopted in the 1960s, was to give a legal basis to an emerging innovative design technique.[202]

Merging zoning and subdivision control, PUD provisions allow developers to mix land uses, housing types, and densities, and to get development approval on large developments that will be built in phases over a number of years. The benefits of PUDs to local governments are in the amenities and infrastructure improvements that developers provide in exchange for flexibility and, ideally, in better-planned neighborhoods, office parks, and other developments than may result with traditional zoning. The potential drawbacks of PUDs lie in the level of discretion afforded the agency or board charged with review and approval. Local governments, through PUD ordinances and with authority granted by the state, must provide sufficiently detailed criteria upon which decisions are made so as to avoid abuse of discretion on the part of the reviewing body. The trick, however, is to do so while also encouraging and allowing innovation in land-use planning.

Legislation for PUDs

Local governments began incorporating PUD provisions into zoning ordinances in the 1950s and 1960s, sometimes before states had adopted enabling legislation expressly permitting the local governments to do so. The rationale of the early drafters of PUD ordinances was that it was simply an extension of the use of the traditional police power to protect the health, safety, and general welfare.

The first model PUD statute was drafted by the late Chicago land use lawyer Richard Babcock and several other attorneys for a joint project of the Urban Land Institute and the National Association of Home Builders in 1965.[203] The model was touted as a means to use "recent planning innovations" to better serve the general objectives of the Standard Zoning Enabling Act and to meet new demands for housing.[204] Under the act, local governments were granted authority to enact a PUD ordinance that must: refer to the state act, include a statement of objectives for PUDs, designate a local agency to review PUDs, and provide development standards and procedures for their review and approval.

The act required local governments to include density standards but, to meet the purpose of flexibility, suggested that local governments allow density to vary among different parts of the PUD site. The model also paid particular attention to assignment of responsibility for maintenance and upkeep of the common open space, noting that this issue had frightened off some municipalities from allowing PUDs prior to that time. The model permitted dedication of the open space to the local government, but also gave it the authority to require a private organization, such as a home owners association, to maintain the space. An added measure allowed the local government to assume responsibility for the open space on a year-to-year basis if it was not adequately maintained and further stated that assuming responsibility does not constitute a taking. Finally, the model dealt with the issue of rights and responsibilities of the public and private land owners in the carrying out the plan for the PUD and in modifications to the plan.

The ULI/Babcock model was enacted almost in its entirety in New Jersey and Pennsylvania.[205] Other states have that have adopted PUD legislation of varying detail include Arkansas, Colorado, Connecticut, Idaho, Kentucky, Massachusetts, Montana, Nevada, New York, and Ohio.[206]

The American Law Institute also promulgated a model statute for PUDs in 1975 in A Model Land Development Code[207]. The ALI Code authorized PUDs through a "special development permit," which is akin to a conditional use. The Code provided far less prescriptive detail than the ULI /Babcock model, opting instead to grant local governments the authority to devise their own PUD regulations based on individual needs, and thus maximizing the flexibility that is at the heart of the PUD concept.[208] One significant addition in the ALI model was the requirement that the plan for the PUD be consistent with the comprehensive plan of the local government (termed the "land development plan" in the Code's words).

A Model Statute

The model statute in Section 8-303 below authorizes the adoption of a planned unit development ordinance but only if the local government has first adopted a local comprehensive plan. Though planned unit development is inherently concerned with land being developed as a single entity, PUD ordinances under the Section apply equally to property with one owner and land with multiple owners. The submission of an application for PUD may be made mandatory at the local government's option, essentially allowing the local government to create PUD zones where PUD is the normal land use method. The statute, in paragraph (6), describes the minimum contents of a PUD ordinance. Subparagraph (6)(f) requires that the ordinance contains site planning standards against which any proposed PUD is to be reviewed. Two alternatives for PUD review and approval are provided, in the manner of a subdivision (for projects of 10 or more acres or, if subdivision is also proposed, under 10 acres as well), or in the manner of a conditional use (for projects less than 10 acres if no subdivision is proposed).

Approval of a PUD constitutes a development permit. In approving the development permit for a PUD, the local government must find that the PUD is consistent with the local comprehensive plan, is likely to be compatible with development and land use permitted as of right by the zoning ordinance on substantially all land in the vicinity of the proposed planned unit development, will not significantly interfere with the enjoyment of other land in its vicinity, and satisfies other ordinance requirements.

The model statute contains an option that the site planning standards may also encourage traditional neighborhood development. Paragraph (8) contains a description of the characteristics of such development.

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