8-303 Planned Unit Development; Traditional Neighborhood Development

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

(2) The purposes of a planned unit development ordinance are to:

(a) permit flexibility in the application of land development regulations that will encourage innovative development and redevelopment for residential and nonresidential purposes so that a growing demand for other housing and other development and land use may be met by variety in type, design, and layout of dwellings and other buildings and structures, including traditional neighborhood development;

(b) provide flexibility in architectural design, placement, and clustering of buildings, use of open areas, provision of circulation facilities, including pedestrian facilities and parking; and related site and design considerations;

(c) encourage the conservation of natural features, preservation of open space and critical and sensitive areas, and protection from natural hazards;

(d) provide for efficient use of public facilities;

(e) encourage and preserve opportunities for energy-efficient development and redevelopment; and

(f) promote attractive and functional environments for nonresidential areas that are compatible with surrounding land use.

(3) As used in this Section and in all other Sections of this Act, "Planned Unit Development" means one or more lots, tracts, or parcels of land to be developed as a single entity, the plan for which may propose density or intensity transfers, density or intensity increases, mixing of land uses, or any combination thereof, and which may not correspond in lot size, bulk, or type of dwelling or building, use, density, intensity, lot coverage, parking, required common open space, or other standards to zoning use district requirements that are otherwise applicable to the area in which it is located.

(4) The legislative body of a local government may adopt a planned unit development ordinance only after it has adopted a local comprehensive plan.

(5) The application of a planned unit development ordinance to a proposed development:

(a) shall not depend upon whether the development has one owner or multiple owners;

(b) may be limited to development that is equal to or greater in area than a minimum area specified in the planned development ordinance; and

(c) may be mandatory for land contained in specified zoning use districts as provided in the planned unit development ordinance.

&#149 Subparagraph (c) authorizes local governments to mandate clustering and similar PUD tools in selected zoning use districts (for example, residential), rather than making PUD voluntary.

(6) A planned unit development ordinance adopted pursuant to this Section shall include the following minimum provisions:

(a) a citation to enabling authority to adopt and amend the planned unit development 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 that is based on findings made pursuant to Section [8-104];

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

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

(f) site planning standards for the review of proposed planned unit developments. Such standards may vary the density or intensity of land use otherwise applicable to the land under the provisions of the zoning ordinance in consideration of and with respect to all of the following:

1. the amount, location, and proposed use of common open space;

2. the location and physical characteristics of the proposed planned unit development;

3. the location, design, type, and use of structures proposed;[209] and

4. [other];

(g) where the planned unit development is also proposed as a subdivision, procedures for the joint review of the proposed planned unit development as a subdivision; and

(h) 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].

(7) A planned unit development ordinance may provide for, as part of the site planning standards described in subparagraph (6)(f) above, the authorization of uses, densities, and intensities that do not correspond with or are not expressly permitted by the zoning use district regulations for the area in which a planned unit development is located, provided that the local comprehensive plan contains a policy in written and/or mapped form encouraging mixed use development and/or development at higher overall densities or intensities if such development is subject to planned unit development requirements. The ordinance may provide that:

(a) the local legislative body shall review any application that proposes uses, densities, or intensities that do not correspond with or are not expressly permitted by the applicable zoning regulations, and

(b) no planned unit development shall vary from the uses, densities, and intensities of the applicable zoning regulations without a review and approval by the local legislative body.

— The language in paragraph (7) permits the local government to designate areas in which mixed use and/or higher-density development is to be allowed, provided it is undertaken as a planned unit development, even if the underlying zoning is more restrictive in terms of uses. Therefore, even though any change in use or density is authorized by an administrative agency, it can be done only if the legislative body has adopted an express policy through the local comprehensive plan. Additionally, the local legislative body, in adopting the ordinance, can require that all planned unit development applications containing such exceptions be submitted to itself for its review.

(8) A planned unit development ordinance may also contain site planning standards, as described in subparagraph (6)(f) above, for traditional neighborhood development that are intended to ensure:

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

(b) a variety of housing types, jobs, shopping, services, and public facilities;

(c) residences, shops, workplaces, and public buildings interwoven within the neighborhood, all within close proximity;

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

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

(f) natural features and undisturbed areas that are incorporated into the open space of the neighborhood;

(g) well-configured squares, greens, landscaped streets, and parks woven into the pattern of the neighborhood;

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

(i) 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

(j) 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.

(9) Where a planned unit development ordinance contains site planning standards for a traditional neighborhood development, the legislative body of a local government may also adopt by ordinance a manual of graphic and written design guidelines to assist applicants in the preparation of proposals for a traditional neighborhood development.

• The language in paragraphs (8) and (9) 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.[210] Note that traditional neighborhood development may also be authorized in the context of zoning use districts pursuant to Section 8-201(5)(a).

(10) The site planning standards shall require that any common open space resulting from the application of such standards on the basis of density or intensity of use be set aside for the use and benefit of the residents of the proposed planned unit development and shall include provisions by which the amount and location of any common open space shall be determined and its improvement and maintenance as common open space be secured.

(a) A planned unit development ordinance may provide that the local government may, at any time and from time to time, accept the dedication of land or any interest thereon for public use and maintenance [but the ordinance shall not require, as a condition of approval of a planned unit development, that land proposed to be set aside for common open space be dedicated or made available to public use].

• If local governments make the dedication of open space effectively created by PUD a routine condition of development approval, then developers may be wary (at best) of entering into PUD knowing they will lose land that they may be able to use outside PUD. On the other hand, there may be cases where public ownership of the open spaces created by PUD is desirable but the blanket prohibition on open space dedication as a condition of approval would prevent it. Each adopting state legislature must decide which consideration is more important and therefore whether to include or delete the bracketed provision.

(b) The ordinance may require that the applicant or landowner provide for and establish an organization or trust for the ownership and maintenance of any common open space, and that such organization or trust shall not be dissolved or revoked nor shall it dispose of any common open space, by sale or otherwise, except to an organization or trust conceived and established to own and maintain the common open space, without first offering to dedicate the same to the local government or other governmental agency.[211]

(11) The approval of a proposed planned unit development pursuant to this Section shall constitute a development permit, which shall be based on findings by the local government that the proposed planned unit development:

(a) is consistent with the local comprehensive plan pursuant to Section [8-104];

(b) 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;

(c) will not significantly interfere with the enjoyment of other land in the vicinity;[212] and

(d) satisfies any other requirements of the planned unit development ordinance.

(12) A proposed planned unit development shall be reviewed and approved:

(a) in the manner of a preliminary plan and final plat of subdivision pursuant to [Section 8-301] if its total area is [10] or more acres, or less than [10] acres if subdivision is also proposed to occur, except that a planned unit development need not be recorded pursuant to Section [8-301(4)(a)] unless it is also a subdivision; and

(b) as a conditional use pursuant to Section [10-502] if its total area is less than [10] acres and no subdivision is also proposed to occur.

(13) The director of the local planning agency shall record the approval of a planned unit development on the zoning map or map series as required by Section [8-201(3)(n)] by reference to the number of the development permit, but such a recordation shall not constitute an amendment to the zoning map or map series.

(14) The planned unit development ordinance may contain provisions for the preliminary plan of the proposed planned unit development to be divided into reasonable phases, and thereafter the review of final plats by the local government according to the phases in the preliminary plan, if the total area is [10] or more acres pursuant to paragraph (12) above.

Uniform Development Standards


Commentary: Uniform Development Standards

[213]

In theory, each local government formulates land development regulations that express its character and advance the goals and policies contained in the local comprehensive plan. Many larger jurisdictions may indeed have the capability to do just that. However, the practical reality is that local governments often adopt model language from various sources or borrow from other local governments' codes. There are numerous models to choose from, and local governments can, in adopting such ordinances, adapt them to local circumstances.

Individually prepared and differing regulations may have the most significant negative impact in the area of development standards. Development standards are the provisions in subdivision, planned-unit development, and site plan review ordinances that prescribe the engineering specifications and technical standards for improvements, such as streets, sidewalks, sewer and water lines, drainage, and placement of utilities.[214] (Detailed development standards are in contrast to the broader policy determinations in subdivision, planned-unit development, and site plan ordinances as to the type, density or intensity, and placement of the land uses themselves.) The standards can be very precise, which has several consequences: (1) smaller local governments may not have the resources to formulate effective standards, or even to adequately modify model or borrowed standards;[215] (2) local governments often apply inappropriate or excessively burdensome ("gold-plated") standards, a common example being state highway department standards, intended for high-use roadways, being applied to local streets;[216] (3) smaller local governments may not have the resources to undertake a detailed technical and legal analysis or review of the standards before adoption; (4) the standards are often drafted by local government engineers and adopted by the local government with little or no critical public commentary at either the preparation or adoption stage; and (5) developers facing different specifications for improvements on projects in various jurisdictions may have to become familiar with very technical differences in standards in order to comply with the law.[217] This can add unnecessarily to the cost of development.

Therefore, there is a need for a uniform set of development standards. The local government with a small population or scarce resources can enact comprehensive standards equivalent to those drafted by the largest jurisdictions with extensive resources. The uniform standards will have undergone a detailed review and analysis by state engineers, attorneys, and other experts that many smaller local governments could not afford, so that the legality and effectiveness of the standards is more predictable. Public hearings on the uniform standards provide a forum for public debate and comment on the standards, which would otherwise be the technical province of municipal engineers. And owners and developers can rely on the fact that standards are consistent and uniform across the many jurisdictions in which they do business.

Model Uniform Development Standards and Enabling Legislation

Various groups have recognized the need for uniform development standards. For example, the National Commission on Urban Problems (the Douglas Commission) in 1968 recommended a national framework for "the development and maintenance of technically valid standards for controlling all types of development activity."[218] Similarly, the U.S. Advisory Commission on Regulatory Barriers to Affordable Housing, in its 1991 report, recommended that states either formulate mandatory standards or publish such standards as models for local governments. [219]

The U.S. Department of Housing and Urban Development, working with the National Association of Home Builders, has produced proposed model land development standards for adoption by local governments.[220] The standards include specifications for streets, pedestrian and bicycle ways, public signage, lighting, water and sewer lines, utility easements, and drainage.

The publication also contains three model state enabling acts, authorizing the preparation of such standards. One provides for standards both formulated and directly imposed by the state, the second provides for state-prepared standards to be voluntarily adopted by the local governments, and the third is a model ordinance for local creation and adoption of development standards. All three model provisions include an advisory board, representing local governments, architects and engineers, and developers, that prepares the uniform development standards.[221] However, the commissioner of the appropriate state department, or local planning board under the model ordinance, actually adopts the standards into law.[222] Annual review of the standards, including recommendation of necessary changes, is required.[223]

State Experience with Uniform Development Standards — New Jersey

One state has committed itself to creating uniform development standards — New Jersey. Under the New Jersey Site Improvement Law,[224] uniform site improvement standards are to be prepared by a Site Improvement Advisory Board, consisting of members representing county and municipal government, engineers, and developers.[225] The proposed standards are submitted as recommendations to the Commissioner of the Department of Community Affairs, who actually adopts the site improvement standards as state regulations. However, the Commissioner cannot reject any standard proposed by the Advisory Board without a finding that it either places an unfair economic burden on some local governments or would result in a danger to public health or safety. Also, the Advisory Board can, with a two-thirds vote, override any rejection by the Commissioner of a particular proposed standard.[226]

Development Standard: An Example

What does a uniform development standard look like? Here is an example of a standard for a water supply system.

The water system shall be designed to provide satisfactory pressure at fixtures during the peak hourly demand. For residential buildings less than four stories, a minimum design pressure of 30 psi at the service connections shall be provided during the period of peak hourly demand.... Alternatively, the system shall be designed to provide adequate pressure during the period of peak hourly demand at the most remote fixture in a dwelling.

SOURCE: U.S. Dep't of Housing and Urban Development, Office of Policy Development and Research (HUD), Proposed Model Land Development Standards and Accompanying Model State Enabling Legislation, 1993 ed. (Washington D.C.: U.S. GPO, 1993), 117 (Water Supply Standard 1.2).

The Advisory Board must conduct an annual review of the site improvement standards and make any recommendations for changes in writing to the Commissioner.[227] Local site improvement standards are superseded by the state's uniform standards, though a local government may obtain from the Commissioner a waiver of particular standards if adherence to the standard "would jeopardize the public health or safety."[228]

The Advisory Board released its first set of proposed uniform site improvement standards, applicable to residential development only, in June 1996.[229] The proposed standards were adopted in June 1997, after the necessary public hearings.[230] Minor amendments, mainly to resolve issues of interpretation, have arisen from the annual review mandated by the Site Improvement Law.[231] No waivers have been issued under the law, but there have been approximately 20 "agreements to exceed" (agreements between a local government and the owners or developers of a particular development project to be bound by standards that exceed the uniform site improvement standards) and 60 de minimis exceptions (granted by the local governments to allow minor variations from the uniform standards by particular development projects).[232]

A member of the Advisory Board who is also a municipal planning official expressed her dissatisfaction with the provision of the Site Improvement Law that requires standards to be "based on recommended site improvement standards promulgated under the authoritative auspices of any academic or professional institution or organization."[233] In other words, no standard can be proposed by the Advisory Board which is not already either a model or actual standard. The criticism is that such a requirement unnecessarily limits the ability of the Advisory Board to formulate the best standards and makes no use of the engineering and planning experience that arises from the Board's composition.[234]

There has been some reluctance on the part of local governments toward enforcing the state-imposed uniform standards, though some local governments are now accepting the standards as less onerous than they first believed them to be.[235] A major criticism by local governments has been that the street widths in the uniform standards are allegedly too narrow for the passage of fire engines and other emergency vehicles when vehicles are parked on the side of the road.[236] There is a pending (as of April 1999) lawsuit by the New Jersey State League of Municipalities, challenging the site improvement standards enacted under the Site Improvement Law as a violation of the local zoning power. The Appellate Division of the Superior Court (in New Jersey, challenges to state statutes proceed directly to the Appellate Division) upheld the law[237], and the League of Municipalities appealed to the state Supreme Court. That court also upheld the Site Improvement Law, stating that "zoning is an exercise of the state's police power" and that "...while our Constitution authorizes legislative delegation of the zoning power to municipalities, it reserves the legislative right to repeal or modify that delegation."[238]

On the other hand, the New Jersey Builders Association is generally pleased with the uniform development standards — the organization filed an amicus curiae brief in the League of Municipalities suit supporting the site standards — although one association official believes that the Site Improvement Law should include a body with the power to provide a uniform interpretation of the site improvement standards and to settle disputes under the standards.[239]

Provisions of the Model Statute

The model statute below, Section 8-401, creates procedures for the preparation, adoption, and implementation of uniform development standards. Development standards are the technical standards and specifications for on-site improvements that are required by subdivision, site plan, and planned-unit development ordinances. While the local governments still make the policy decisions about the type, density, and location of development on a parcel or in a development project, development standards provide the details of the dimensions, composition, and design of the improvements required to serve the development. These include streets, pedestrian ways, water and sewer lines, and utility easements.

There may be a concern about the effect of uniform development standards on local discretion to regulate development. Even though the standards are intended to be technical specifications that merely clarify and supplement the local government's power to determine the type, density or intensity, and placement of land uses, it can be argued that uniform standards can have a significant substantive effect on development. For example, prescribing wide streets (ample parking for multiple-auto households) while not requiring sidewalks or street lamps promotes low-density "sprawl" development. On the other hand, narrow streets and mandatory sidewalks and street lamps encourages higher-density "neo-traditional" development. To address this concern, and to give the uniform standards the flexibility that will make it more likely that local governments will adopt them, the model Section requires that the standards must be formulated in classes that are related to and compatible with various types and densities or intensities of land use. For example, one classification system for standards could be low-density, medium-density, or high density residential, each with different requirements for street width, sidewalks, sewer and water lines, etc. Another potential system could be rural subdivisions, with no mandate for sewers or water service, suburban subdivisions, with water and sewer mains but no sidewalks, and urban subdivisions with sidewalks.

Since the goal is to formulate development standards that are uniform across the state, the most appropriate body to adopt such standards is the state planning agency. However, since it will be local governments that choose to adopt, modify, or even reject the uniform development standards, the state planning agency should be advised in its preparation of the standards by an advisory board consisting of representatives of local government and the development community. To ensure that the standards it adopts are appropriate to the state, the state planning agency must also consult directly with the local governments and hold public hearings. Once the state planning agency has adopted uniform development standards, these standards are provided to regional planning agencies and all local governments.

To ensure that the uniform development standards are effective and responsive to current conditions, a five- or ten-year review of the standards is required. The review, by the advisory board, results in a report that is to be adopted by the state planning agency, either in whole or with changes. If no report is adopted within five or ten years of the last adoption of a report, the uniform development standards are no longer presumed to be reasonable. The standards do not thereby become ineffective, but they do have to be defended against legal challenges individually and on their own merit.

There are two alternative approaches to the effect of the uniform development standards. The first option is to permit local governments that adopt the uniform development standards without substantive changes to obtain a certificate of uniformity from the state planning agency. This certificate is not required in any way, but it puts owners, developers, neighborhood groups, residents, and any other interested parties on notice that the local government has land development regulations that can be relied upon to be the same as the familiar state standards. A local government granted a certificate of uniformity can enlist the assistance of the state in defending legal challenges to the uniform development standards. They can also publicize the certificate and its significance in efforts to encourage development.

The second option is to mandate the local adoption of the standards. If the uniform development standards are mandatory, then there must also be a uniform interpretation of those standards. The Section therefore provides that all issues of interpretation of the uniform development standards are to be referred to the Advisory Board for its binding (and appealable) decision.

If the mandatory option is adopted, waivers from particular development standards are provided, but may be granted only by the Advisory Board and only when adherence to the standards would create an imminent threat to public health or safety or the environment.


8-401 Uniform Development Standards

(1) The [state planning agency] shall adopt uniform development standards within [one] year from the effective date of this Act, and may adopt amendments to the uniform development standards as reasonably necessary.

(2) "Uniform Development Standards" mean standards and technical specifications for improvements to land required by subdivision, site plan review, and planned-unit development ordinances and, in order to be considered complete for purposes of paragraph (1) above, shall include specifications for the placement, dimension, composition, and capacity of:

(a) streets and roadways;

(b) sidewalks, pedestrian ways, and bicycle paths;

(c) signage for traffic control and other governmental purposes, including street name signs, and other traffic control devices on streets, roadways, pedestrian ways, and bicycle paths;

(d) lighting of streets, pedestrian ways, and bicycle paths;

(e) water mains and connections thereto, including connections for the suppression of fires;

(f) sanitary sewers and storm-drainage sewer mains and connections thereto;

(g) utility lines and poles, conduits, and connections thereto;

(h) off-street parking and access thereto, except that local governments retain the power to prescribe minimum and maximum number of parking spaces for given types, locations, and densities or intensities of land use; and

(i) landscaping and contouring of land, and other provisions for drainage, sedimentation, and erosion control.

(3) Uniform development standards:

(a) shall be divided into classes that are defined by and appropriate to types and densities or intensities of land use; and

(b) shall not encompass standards for open space, parks, or playgrounds. Any provision of this Section to the contrary notwithstanding, local governments retain the power to formulate and adopt standards regarding exactions of open space, parks, and playgrounds.

(4) There is hereby created a Uniform Development Standards Advisory Board, hereinafter the "Advisory Board," consisting of [seven] persons appointed by the [state planning agency] for a term of [two] years.

(a) The membership of the Advisory Board shall be as follows: [describe composition of Board].

• The composition of the Board is an issue best left to each state. However, since the purpose of the uniform development standards is to provide a resource to local governments and certainty to developers and the public, the board should have representatives of regional planning agencies, county and municipal planning bodies, and home builders and developers, and at least one engineer to ensure the standards are feasible.

(b) All members of the Advisory Board shall serve as such without compensation. However, members may be reimbursed by the [state planning agency] for any expenses incurred in the performance of their duties.

(c) The Advisory Board shall prepare proposed uniform development standards and amendments thereto, and shall present the proposed standards or amendment to the [state planning agency] for adoption.

(d) Before adopting uniform development standards or amendments thereto, the [state planning agency] shall send copies of the proposed standards or amendment to all relevant state agencies[, regional planning agencies] and local governments, which may send written comments thereon within [30] days of receiving the proposed standards or amendment.

(e) Before adopting uniform development standards or amendments thereto, the [state planning agency] shall hold a public hearing thereon. The [state planning agency] shall give notice by publication in newspapers having general circulation within the state [and may also give notice by publication on a computer-accessible information network or by other appropriate means, such notice being accompanied by a computer-accessible copy of the proposed standards or amendment,] at least [30] days before the public hearing. The form of the notice of the public hearing shall include:

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

2. a description of the substance of the proposed standards or amendment;

3. the officer(s) or employee(s) of the [state planning agency] from whom additional information may be obtained;

4. the time and place where the proposed standards or amendment may be inspected by any interested person prior to the hearing; and

5. the location where copies of the proposed standards or amendment may be obtained or purchased.

(f) At the public hearing, the [state planning agency] shall permit interested persons to present their views orally or in writing on the proposed uniform development standards or amendment, and the hearing may be continued from time to time.

(g) After the public hearing and the receipt of all written comments, the [state planning agency] may revise the proposed standards or amendment, giving appropriate consideration to all written and oral comments received. The [state planning agency] must state in writing all revisions from the proposed standards or amendment presented by the Advisory Board and the reasons for such revisions.

(5) Uniform development standards and amendment thereto:

(a) shall be considered rules of the [state planning agency] for purposes of Section [4-103] of this Act, and their preparation and adoption shall be governed by the [Administrative Procedure Act], except as otherwise provided in this Section; and

• This provision requires that the uniform development standards be entered into the state administrative code or similar codification of state-agency regulations.

(b) shall be sent to all [regional planning agencies] and local governments within [30] days after adoption.

(6) [Alternative A—Voluntary adoption of standards
Any local government that voluntarily adopts the uniform development standards and all amendments thereto without substantive amendment may apply to the [state planning agency] for, and shall receive, a certificate of uniformity. The state planning agency shall revoke a certificate of uniformity if a local government with such a certificate does not adopt, without substantive amendment, an amendment to the uniform development standards within [90] days of receipt.

(a) The [Attorney General] shall have the duty to defend all legal actions brought against any local government that has a valid certificate of uniformity in which the validity or constitutionality of the uniform development standards is challenged.

• Since the local government is effectively acting as the state's agent by adopting and enforcing the state's uniform development standards, the state and not the local government should bear the cost of defending the standards against legal attack.

(b) A local government that has a valid certificate of uniformity may disclose, publicize, and advertise the receipt and significance of the certificate of uniformity.]

[Alternative B—Mandatory adoption of standards
Upon receipt of the uniform development standards and amendments thereto, all local governments shall, by ordinance, adopt the uniform development standards.

(a) If a local government does not adopt the uniform development standards within [90] days of receipt, or makes any substantive alterations or amendments thereto, then the [state planning agency] shall in writing declare the uniform development standards to be enacted, and the local government shall enforce the uniform development standards in the same manner as any other local land development regulation.

(b) No local government may adopt development standards other than the uniform development standards and all amendments thereto, and any purported adoption of other development standards shall be void.

(c) All disputes over the interpretation or meaning of the uniform development standards shall be referred by the hearing board, officer, or examiner to the Advisory Board, whose interpretation shall be binding. An interpretation by the Advisory Board shall be appealable to the [trial-level] court for the county in which the property in question is located, pursuant to the procedures set forth in this Act for judicial review of land-use decisions at Sections [10-601 et seq.].]

(7) The Advisory Board shall, at least once every [5 or 10] years, conduct a general review of the uniform development standards. The general review shall result in a written report to the [state planning agency] that contains:

(a) an analysis of changes in, or alternatives to, existing uniform development standards that would increase their effectiveness or reduce any identified adverse impacts; and/or

(b) an analysis of why such changes or alternatives are less effective or would result in more adverse effects than the existing uniform development standards.

The [state planning agency] 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 [state planning agency] fails to adopt, in whole or with revisions, such a written report within [5 or 10] years of the adoption of the first uniform development standards pursuant to this Act or of the last adoption of a written report, the uniform development standards shall not enjoy a presumption of reasonableness, and the [state planning agency] shall bear the burden of demonstrating such reasonableness. The removal of the presumption of reasonableness does not by itself affect any presumption of validity, nor does it affect the validity or reasonableness of development permits already issued under the uniform development standards. Paragraph (6)(b) of this Section notwithstanding, if the uniform development standards as amended do not enjoy a presumption of reasonableness, local governments may adopt development standards other than the uniform development standards.

• Without the last sentence, a local government would be in a dilemma: faced with uniform standards that have to justify their reasonableness but unable to adopt its own reasonable development standards.

[(8) A local government, or owner of property upon which a development project is planned or proceeding, may apply to the Advisory Board for a waiver of one or more particular uniform development standards, and the Advisory Board shall approve such application, waiving the application of the standard or standards to that development project on that particular property, only if the Advisory Board finds that application of the standard or standards to the particular development project on that particular property:

(a) constitutes an imminent threat to public health or safety or the environment; or

(b) would deprive the owner of all reasonable use of the property.

The Advisory Board shall render a written decision on the application within [60] days of receipt, including in the decision the bases. Such written decision shall be sent to the applicant and to the local government in which the property is located within [10] days of the decision. The decision of the Advisory Board shall be appealable to the [trial-level] court for the county in which the property in question is located, pursuant to the procedures set forth in this Act for judicial review of administrative decisions at Sections [10-601 et seq.].]

Development Rights and Privileges


Commentary: Vested Right to Develop


What is a Vested Right to Develop?

Several states have "vesting" statutes intended to protect the legal status of rights obtained at various points in the development review process. Vesting statutes are laws that create criteria for determining when a landowner has achieved or acquired a right to develop his or her property in a particular manner, which cannot be abolished or restricted by regulatory provisions subsequently enacted. This is called a vested right because it is a right that has become fixed ("vested") and cannot be eliminated or amended. Such laws are not the same as "takings" or "property rights" statutes, which either provide for review of regulatory statutes for potential taking effects or lower the threshold amount by which property must be diminished in value by enforcement of a regulation for there to be a compensable taking.[241]

Vesting statutes are also not the same as development agreement statutes. Though the effect of a development agreement is to fix the government's right to regulate the property in question, the method used is an agreement in which the landowner typically agrees to at least some restrictions that the government could not generally obtain in exchange for his or her obligations becoming fixed (and for other favorable variances from land development regulations). Vesting statutes, in contrast, apply to the generally applicable regulations of land use, and no agreement is needed for the landowner to be able to assert a vested right to develop.

There is a common thread through most existing vesting statutes. For the development rights to be vested, the government must have made a decision and the landowner must have, in good faith, relied, to his or her detriment, on that decision by making some improvement to the land or some other commitment of resources. It is not surprising that these elements are found so frequently, either expressly or implicitly, for the common law has for hundreds of years included the doctrine of estoppel. Estoppel means that when someone does something with the intent that you will rely on their action or statement, and you indeed rely in good faith on that action or statement and demonstrate that reliance by some action to your detriment (not a mere statement that you will rely on it), the original party is legally bound by that action or statement.[242]

While the doctrine of estoppel is most commonly applied in private disputes, it has also been used by some courts in land-use cases to create a vested right to develop which is protected by the Federal and state constitutions.[243] However, some state courts have restricted or denied the applicability of the estoppel doctrine to land-use cases. In some cases, these courts have stated that granting vested rights at all would be an improper restriction on the police power.[244] In other cases, they have ruled that the landowner must demonstrate that the local official upon whose statement or decision he or she relied was within authority to make the statement or decision, as the government is not bound by an official's unauthorized acts.[245] Even where estoppel is applied to land-use decisions and a vested right was recognized, there is a difference of opinion on what sort of government acts and what level of reliance triggers estoppel. It is almost universal across the case law that the reliance must be in the form of "substantial" or "extensive" expenditures or actual construction, but these terms are rarely defined, instead being left to a case-by-case analysis. Also decided on an ad-hoc basis is the more fundamental issue of what sort of government statement, action, or decision could be the basis of estoppel. Is a statement by an official that one will receive approval sufficient?[246] Preliminary approval of a site plan?[247] Final approval of a site plan?[248] Issuance of a building permit?[249]

Further confusing an examination of the case law is the issue of "last-minute" amendments to land development regulations.[250] Some state courts have decided that a development permit application may be subject to an ordinance that was pending in the local legislative process at the time the application was submitted.[251] Courts in some other states have applied estoppel to such pending ordinances, and have not allowed a new or amended regulation to apply to a development permit application where the applicant had made a substantial investment in good-faith reliance on the ordinances in place at the time of application.[252] And some state courts have found that an applicant who was entitled to a development permit under the regulations in place at the time of application could not be denied a permit based on amended regulations even where there was no substantial investment or reliance by the applicant landowner.[253]"Where a project is caught in a change in the law due to denials of successive applications or delays in processing, the court might look askance at a denial based exclusively on the new law."[254] In such states, courts are especially willing to ignore post-application amendments where the court finds that the local government amended its regulations after the application, or delayed the application until the ordinance became effective, with the intent of barring the application.[255]

Statutory Approaches to Vested Rights

To clarify the issues raised in the case law, a number of states have enacted vesting statutes that specify what sort of government decision, and what detrimental landowner actions made in reliance on that decision, trigger estoppel, as well as other issues concerning vesting of development rights.
Arizona grants vested rights in a "protected development right plan," which can be a planned unit development plan, subdivision plat, site plan, or a general or final development plan, but which must be identified as a protected development right plan at the time it is approved by the local government.[256] However, it is up to the local government adopting a protected development right ordinance to identify exactly what constitutes a protected development right plan. Such a plan must describe "with a reasonable degree of certainty" the boundaries, natural features, intended use, and the intended locations of buildings and structures, roads, and utilities.[257] The duration of the protected development right is to be determined at the time the protected development right plan is approved, and a phased development plan, with less information than a final protected development right plan, can be vested if the local government so provides.[258] A protected development right can be granted conditionally, but demanding that the owner waive his or her protected development rights is not a valid condition. If the condition is that a variance be obtained, then the right does not vest until the variance is obtained.[259]

Under the Arizona statute, a protected development right lasts for up to three years, except for phased developments, which are protected for five years. An extension of up to two additional years can be obtained at the discretion of the local government "if a longer time period is warranted by all relevant circumstances."[260] If a protected development right terminates, but a building permit was issued before termination and the footings or foundations of the buildings have been completed, the protected right extends to the expiration of the building permit, but not more than one year from termination.[261] The protected development right is a right to develop pursuant to the protected development right plan, regardless of later amendments in land-use regulation by the local government. There are exceptions when the owner consents in writing to be subject to new regulations, the plan approval was based on an intentional material misrepresentation, or the local government finds, by ordinance after a public hearing, "that natural or man-made hazards on ... the property would pose a serious threat to the public health, safety, and welfare if the project were to proceed as approved."[262] The protected development right does not include federal or state laws or regulations, to generally applicable codes such as building, fire, plumbing, electrical, or mechanical codes, or to overlay zones that do not affect type of use or density.[263] The protected development right does not preclude the formation of development agreements, nor is it exclusive — common-law vesting still applies, in addition to the statute.[264]

In California, the developer of a subdivision can file, in place of a tentative map, a vesting tentative map.[265] The approval or conditional approval of a vesting tentative map confers a vested right to develop "in substantial compliance with the ordinances, policies, and standards" of the local government, with that right expiring if a final map is not approved before the vesting tentative map expires.[266]The vested right includes the right to amend the vesting tentative map in response to amendments to the ordinances, policies, and standards, and the right to seek approvals or permits that depart from the ordinances, policies, and standards[267] — in effect, the right to opt into favorable changes in local land-use policy while not being bound by unfavorable changes, and the right to seek variances and similar exceptions. A developer may submit a vested tentative map that is inconsistent with the existing zoning of the property, and the local government may deny approval or condition approval of the map upon obtaining the necessary rezoning. If the map is approved or approved conditionally and the rezoning is later obtained, then the vested right includes the right to develop at the new zoning, not the prior zoning that was in effect when the map was approved.[268] On the other hand, the local government may condition or deny a later permit or approval, though this may be contrary to the vested development right, if this is necessary to comply with state or federal law or if "a failure to do so would place residents ... in a condition dangerous to their health or safety...."

Colorado focuses on the "site-specific development plan" — a document submitted to the local government for approval, be it a subdivision plat, planned unit development plan, development agreement, or other instrument (but not a variance, sketch plan, or preliminary plan), that describes "with reasonable certainty the type and intensity of use for a specific parcel or parcels of property."[270] What constitutes a site-specific development plan is to be defined by local ordinance, but if a local government does not adopt a vesting ordinance by January 1, 2000 and define in that ordinance what constitutes a site-specific development plan, then a vested right to develop will arise from any plat or plan that satisfies the statutory definition of a site-specific development plan.[271]

An application for approval of a site-specific development plan is to be reviewed under the laws and regulations in effect on the date of application, except that new or amended laws and regulations "necessary for the immediate preservation of public health or safety" are immediately applicable.[272] When a site-specific development plan is approved or approved with conditions, after due notice and public hearing, a vested property right to develop pursuant to the plan is created.[273] The right extends for three years, which can be extended through development agreements approved by the local legislature or through amendments to the site-specific development plan that are expressly approved by the local government.[274] A vested right created under one local government is binding on any other local government that may later assert jurisdiction over the property.[275] The vested right does not apply to building, electrical, mechanical, and plumbing codes, and the local government may act contrary to the vested right if the landowner consents, if just compensation is paid for all expenditures made in reliance on the right (but not for the diminution in value of the land itself), or if there are natural or man-made hazards on or near the property, that were not reasonably discoverable at the time of the approval, posing a "serious threat to the public health, safety, and welfare".[276]

The Florida law on vested rights is very succinct: a development approved as a development of regional impact that has been commenced and is presently proceeding in good faith is not affected by an amendment to the state statute authorizing local land-use planning and regulation.[277] This statute is little more than a restatement of the general definition of estoppel.

The vested-rights statute in Kansas provides that development rights in single-family residential property vest upon the recording of a plat and that such a right extends for five years, during which construction must commence or the right expires.[278] For other property, the right vests only when all permits required by city and county regulations are issued and construction has begun with substantial amount of work completed.[279] In either instance, local governments can provide by ordinance for earlier vesting of development rights, as long as the vesting event is the same for all land within a particular land-use classification.[280]

In Massachusetts, the usual nonconforming uses statute is broadened, so that a zoning ordinance or by-law does not apply to a structure or other use that is "lawfully in existence or lawfully begun, or to a building or special permit issued" before the first notice of the public hearing on the adoption of the ordinance or by-law.[281] However, this provision does not apply to billboards or to various adult uses, and amendments to a zoning ordinance or by-law can apply if the use or construction is not commenced within six months after the permit is issued and the construction is "continued through to completion as continuously and expeditiously as is reasonable."[282] Massachusetts also has a more typical vesting provision, which grants vesting rights in the context of subdivisions to "a definitive plan, or a preliminary plan followed within seven months by a definitive plan" if notice is given to the local government that the plan was submitted, and the plan is approved.[283] Such vested right is a right to develop according to the ordinances and by-laws in place at the time of the submission of the first plan and lasts eight years, with any moratorium on construction, permits, or utility connections, whether imposed by the state, a federal agency, or a court, staying that time limit.[284] The owner of land subject to a vested right may waive that right in a writing properly recorded in the manner of a deed, in which case the ordinances and by-laws in place apply in full.[285] This gives the owner the option to take advantage of favorable changes in local land use policy.

In New Jersey, the preliminary approval of a subdivision plat or site plan grants the owner, for three years, the right to develop pursuant to the plat or plan "except that nothing herein shall be construed to prevent the municipality from modifying by ordinance such general terms and conditions of preliminary approval as relate to public health or safety."[286] If a subdivision or site covers an area of 50 acres or more, the vested right may exist, by consent of the local government, for longer than three years, taking into consideration such factors as the number of dwelling units, economic conditions, and the comprehensiveness of the development.[287] Extensions of the vested right for up to one year, with an absolute limit of two years total, can be obtained, but if, in the interim, design standards have been revised, such revised standards may govern.[288] An extension of preliminary approval for up to one year, which does not make the project subject to amendments to the design standards, may be granted if the developer proves that he or she "was barred or prevented, directly or indirectly, from proceeding with the development because of delays in obtaining legally required approvals from other governmental entities and that the developer applied promptly for and diligently pursued the required approvals."[289]

The final approval of a site plan or major subdivision extends the rights from preliminary approval for two years unless the plat has not been duly recorded within the time period provided by New Jersey law.[290] For subdivisions or site plans of 50 acres or more, conventional subdivisions or site plans for 150 acres or more, or site plans for development of a nonresidential use with a floor area of 200,000 square feet or more, the local government may grant vested rights for more than two years, taking into consideration the same factors as were applicable with preliminary approval of large subdivisions or sites.[291] The same extensions are available, including the extension for delays in obtaining permits that were diligently sought.[292]

North Carolina's vested rights statute is similar to that of Arizona and Colorado. The two foundations of the statute are the site-specific development plan and the phased development plan. The site-specific development plan is defined in almost precisely the same manner as Colorado: a plan submitted by the landowner, "describing with reasonable certainty the type and intensity of use for a specific parcel or parcels of property," with variances and sketch plans not eligible.[293] As in Colorado, it is in the hands of the local government to define by ordinance exactly what constitutes a site-specific development plan, but that definition must "designate a vesting point earlier than the issuance of a building permit."[294] If no such ordinance is enacted, the issuance of a zoning permit is the vesting point.[295] A phased development plan is a plan that contemplates development in phases and is not as specific as a site-specific development plan.[296] The approval of a site-specific development plan or phased development plan, after public notice and hearing, creates a vested right to develop pursuant to the plan, which lasts for two years but can be extended by the local government for a maximum duration of five years for phased development plans.[297]

In North Carolina, a local government may also place conditions on the approval of a site-specific development plan or phased development plan, but cannot require the landowner to waive his or her vested development right as a condition of plan approval.[298] For phased development plans, a local government may require the landowner to submit a site-specific development plan for each phase of the project in order for the right to develop that phase to become vested.[299] The vested right may be amended or abolished if the owner approves, is compensated for expenditures in reliance on the vested right but not for diminution in value of the land, if the owner made misrepresentations that were material to the plan approval, if the development would be in violation of a state or federal law or regulation enacted afterwards, or if it is found in a hearing after proper notice that a hazard exists on or near the property that would endanger the "public health, safety, or welfare" if the project proceeded as approved.[300] There is no vested right in relation to overlay zoning districts nor as to building, plumbing, electrical, or mechanical codes.[301]

The Oregon statute [302] provides that applications for development permits and related land-use decisions are to be reviewed pursuant to the standards and criteria in place at the time of application, so long as the application was complete when filed or made complete within 180 days of application.

Pennsylvania has a fairly simple statute. It states that, after application for approval of a subdivision plat, amendments to local land-use regulations do not affect the decision on the plat, and that approval of the preliminary application entitles the owner to approval of the final plat.[303] Once a plat has been approved, no further amendment to local land-use regulations may adversely affect the right to develop in accord with the approved plat for five years, which can be extended at the discretion of the local government.[304] A preliminary plat may propose development of the project for more than five years if it includes a schedule of development in stages with deadlines for the completion of each stage.[305] Modification of the schedule requires approval by the local government, and failure to adhere to the schedule revokes the vested right and leaves the owner subject to local land-use law amendments enacted since preliminary plat approval.[306]

The Texas statute provides that, both for the state and for local governments, "the approval, disapproval or conditional approval of an application for a permit [shall be considered] solely on the basis of any ... properly adopted requirements in effect at the time the original application for the permit is filed."[307] A permit is any approval required by law in order to perform an action or initiate a project. All permits required for a project are considered a single series of permits, and when a series of permits is required for a project, then the requirements in effect at the time the original application for the first permit is filed are the sole basis for consideration of all subsequent permits required for the completion of the project.[308] Once an application for a project is filed, the duration of any permit required for the project cannot be shortened.[309] A permit holder has the right to "take advantage of ... a change to the laws, rules, regulations, or ordinances of a regulatory agency which enhance or protect the project including, without limitation, changes that lengthen the effective life of the permit after the date on which application for the permit was made, without forfeiting any rights."[310] However, the statute does not apply to permits required for "sexually oriented businesses," nor to uniform building, fire, electrical, plumbing, or mechanical codes or local amendments thereto, zoning regulations not affecting lot or building size or dimensions, regulations of annexation or of utility connections, or any other regulation "to prevent imminent destruction of property or injury to persons." Also, it does not affect the ability to amend fees imposed in connection with development permits.[311]

Virginia has a law that creates a vested right when a landowner "is the beneficiary of a significant affirmative government act allowing development of a specific project, relies on the significant affirmative government act, and incurs substantial expenses in diligent pursuit of the specific project in reliance on the significant affirmative government act."[312] The statute gives examples, but not an exhaustive list, of significant affirmative government acts: issuance of special exception or use permits, granting of variances, approval of a preliminary subdivision plat or site plan if the owner "diligently pursues approval of the final plat or plan within a reasonable period of time," or approval of a final plat or plan.[313] This statute, like Florida's law, is in essence a restatement of the common-law vesting standard based upon estoppel.

Common Elements of the Vested Right Statutes

There are several common elements that run through the vesting statutes. Generally applicable regulations, such as building, fire safety, plumbing, electrical, and mechanical codes, are not subject to the vested development right and apply as amended.[314] There is no vested right from a permit, permission, or approval issued in reliance on an intentional material misrepresentation.[315] If development of the property pursuant to the vested right is found to create a hazard to the public health, or safety, the vested right may be terminated.[316]

The owner can typically opt into amendments that are favorable to development. Some states allow the owner to do this by consenting to submit to the new regulation or amendment,[317] while others require that the owner specifically apply for amendment of the instrument creating the vested right, thus necessitating approval by the local planning agency or commission.[318] In the statutes that address the question, the vested right can be terminated by the payment of just compensation.[319] While a permit or approval that creates a vested right can be conditional, it is not a valid condition to require the owner to waive the vested right.[320]

As to the key issue in vested right statutes — what permit or approval triggers the right — there are various approaches. Arizona, Colorado, and North Carolina statutes create a vested right from a development plan that is "site specific;" that is, a plan must have sufficient specific detail on the proposed development of the property, such as a subdivision plat, planned unit development, or development agreement, though the amount of necessary specificity is up to the individual local government.[321] California relies upon the "tentative vesting map," while Massachusetts creates a vested right from approval of "a definitive plan or a preliminary plan followed within seven months by a definitive plan," and Pennsylvania vests the right to develop pursuant to an approved subdivision plat.[322] Florida grants a right to complete a development of regional impact pursuant to a final development order if development is proceeding in good faith.[323] Kansas vests upon the recording of a plat for single-family residential development, and for all other development upon the issuance of all necessary permits if "substantial amounts of work have been completed" pursuant to the permits.[324] Virginia grants a vested right when there is a significant affirmative governmental act, such as a rezoning, special use permit, variance, or plat or site plan approval, and the owner in good faith reliance on that affirmative act makes significant expenditures or incurs significant obligations. [325]

Elements of the Model Vested Right to Develop Section

In the model Section 8-501 below, the Legislative Guidebook has adopted the above common elements, some intact and some with modification. In the Section below, the basis for the vested right is the development permit application. When a land owner applies for a development permit, the owner has the right to rely on the land development regulations that were in effect on the day the application was filed. Once a permit application is filed, subsequent amendments to the relevant ordinances underlying the desired permit do not apply to that permit application. And, of course, if the application is approved and the permit is granted, development may proceed to the extent of the permit, amendments to land development regulations notwithstanding.

Some people contend that the "substantial investment" rule is the only appropriate vesting rule, that only a landowner who has made a substantial investment in reliance on a permit approval has a right that supersedes the local government's right to regulate land use at all times. As explained above, the statutory trend is to adopt a "bright line" permit vesting rule for its certainty and predictability. However, if an adopting state legislature strongly wishes to employ a "substantial investment" rule, we have provided an alternative Section 8-501 in which a vested right to develop is created by "significant and ascertainable development" pursuant to a validly-issued development permit. This variation on the substantial investment rule, based on Maine and Maryland case law,[326] is somewhat less problematic than typical "substantial investment" in that it is based upon some concrete physical improvement rather than the amount of money spent.

It should be noted that, as with any other important policy issue, there are many types and varieties of vesting rules, both statutory and in case law. It may be desirable for a state with a strong preference for a particular vesting rule other than the ones provided here to substitute that rule for the alternatives in this Section, or even adopt no vesting statute and rely on existing case law precedent.


8-501 Vested Right to Develop (Two Alternatives)

Alternative 1 — "Bright-Line" Vesting Rule

(1) Except as provided in this Section:

(a) when an owner submits an application for a development permit, and the application is complete when submitted or deemed to be complete pursuant to Section [10-203] within [90] days of submission, no enactment or amendment of the relevant land development regulations after the date of application shall apply to the consideration of that application.

• This language freezes the development regulations at the time of application, and any subsequent change in the land development regulations will not affect the consideration of the application. The requirement for this right that the application be made complete within 90 days if it is not complete as filed arises because, under Section 10-203, the local government has 28 days from application to inform the applicant that their application is incomplete, and another 28 days from the submission of requested additional materials to deem the application complete. The 90 days leave the applicant at least 34 days to assemble and submit the additional information, which is a reasonable and not excessive deadline.

(b) the issuance of a development permit pursuant to Section [10-201] shall grant the owner of the property subject to the development permit the right to develop the property pursuant to the terms and conditions of the development permit for the duration of the development permit, including any extensions.

• Local land development regulations must specify the duration of development permits, but may specify different durations for different types of permit or different scales of development. Generally, more complex development should be allotted more time for completion and thus a longer vesting period.

These rights shall be collectively termed the "vested right to develop."

(2) The vested right to develop does not apply to enactment of or amendments to:

(a) ordinances of general application, such as building, fire safety, electrical, mechanical, plumbing, and property maintenance or housing codes; or

(b) state or federal statutes or regulations.

(3) The enactment or amendment of land development regulations by the local government after the date of submission of an application for a development permit shall apply to the development of the property for which the development permit was issued under the following circumstances:

(a) if the owner of the property in question agrees through a development agreement pursuant to Section [8-701] to be subject to subsequent enactments or amendments.

(b) if the [legislative body or hearing examiner or Land-Use Review Board] finds in writing, after a hearing with proper notice, that a development permit was issued in reasonable reliance upon a material misrepresentation by the owner, or by the representative or agent of the owner:

1. in any application, plat, plan, map, or other document filed with the local government in order to obtain the development permit, or

2. in any hearing held in order to obtain the development permit;

(c) if the local government makes just compensation to the owner for the termination of the vested right to develop; or

(d) if the [legislative body or hearing examiner or Land-Use Review Board][327] finds in writing, after a hearing with proper notice, that a hazard, unknown to the local government at the time the development permit was issued, exists on or near the property for which a development permit was issued that would endanger the public health or safety if development were to commence or proceed pursuant to the terms and conditions of the development permit.

(4) It shall not be a condition for the issuance or continuing validity of any development permit that the owner waive his or her vested right to develop pursuant to the terms and conditions of the development permit. Any such purported condition on the issuance or maintenance of a development permit shall be void.

(5) The vested right to develop may be extended only by:

(a) an extension of the duration of the development permit, granted pursuant to Section [10-201];

(b) a development agreement pursuant to Section [8-701]; or

(c) a period of time equal to the length of any and all moratoria imposed by any governmental entity, including the state and federal governments.

Alternative 2 — Vested Right Upon Significant and Ascertainable Development

(1) Except as provided in this Section, the issuance of a development permit shall grant the owner of the property subject to the development permit the right to develop the property pursuant to the terms and conditions of the development permit and the development permits prerequisite to that permit, notwithstanding new or amended land development regulations to the contrary, when the owner has engaged in significant and ascertainable development pursuant to the development permit with the intention in good faith to complete the development authorized by the development permit and prerequisite development permits. This right shall be termed the vested right to develop.

• Under Section 10-208, the local government may issue, for a large-scale development, a master permit that subsumes all the component development permits and allows the entire project to be vested with reasonable certainty.

(2) The vested right to develop shall not apply to state or federal statutes or regulations, and the enactment or amendment of land development regulations by the local government shall apply, any vested right to develop notwithstanding, under the following circumstances:

(a) if the owner of the property in question agrees through a development agreement pursuant to Section [8-701] to be subject to subsequent enactments or amendments;

(b) if the [legislative body or hearing examiner or Land-Use Review Board] finds in writing, after a hearing with proper notice, that the development permit, or any prerequisite development permit, was issued in reasonable reliance upon a material misrepresentation by the owner, or by the representative or agent of the owner:

1. in any application, plat, plan, map, or other document filed with the local government in order to obtain the development permit, or

2. in any hearing held in order to obtain the development permit;

(c) if the local government makes just compensation to the owner for the termination of the vested right to develop; or

(d) if the [legislative body or hearing examiner or Land-Use Review Board][328] finds in writing, after a hearing with proper notice, that a hazard, unknown to the local government at the time the development permit was issued, exists on or near the property for which the permit was issued that would endanger the public health or safety if development were to commence or proceed pursuant to the terms and conditions of the development permit and prerequisite development permits.

(4) It shall not be a condition for the issuance or continuing validity of any development permit that the owner waive his or her vested right to develop. Any such purported condition on the issuance or maintenance of a development permit shall be void.

(5) A local government shall define or clarify what constitutes significant and ascertainable development in its land development regulations.


Commentary: Regulation of Nonconforming Uses

[329]

What is a nonconforming use?

A nonconforming use is a land use, or a structure, which was allowed under local land development regulations when established, but would not be permitted under current development regulations.[330] In deciding how to treat nonconforming uses, local governments must strike a balance between two competing principles:

(1) The intended outcome, when a local government changes its planning goals and policies and then enacts revised land development regulations, is to have all development and land use ultimately conform to those regulations.

(2) It is unfair to require termination of a use or demolition of a structure that was constructed or commenced in compliance with the law when the owner, relying on the legality of the land use or structure at the time, presumptively incurred expenses in maintaining the structure or continuing the use.

The protection of nonconforming uses is thus the "mirror image" of vesting. Vesting deals with the right to complete a development despite changes in land development regulations to the contrary. Nonconforming uses are about the right to maintain a structure or land use despite changes in land development regulations to the contrary.

General Approaches to Nonconforming Uses

Programs for the removal of nonconforming uses are affected by the type of nonconforming use that is involved. At one end of the nonconforming use spectrum are nonconforming uses that are noxious, nuisance-like uses, often located in high-value, nonconforming buildings. An industrial plant in a residential areas is an example. These nonconforming uses present difficult removal problems. So do conforming uses in nonconforming buildings.

At the other end of the spectrum are nonconforming uses located on open land, such as billboards or signs. Some of these uses, such as junkyards, are also nuisance-like. Nonconforming uses in conforming buildings also belong at this end of the nonconforming use spectrum. Nonconforming uses that have a minimal capital investment are the easiest to deal with, particularly because they can be amortized over short periods of time.

Most states extend some degree of legal protection to nonconforming uses. The usual approach of local governments is to "grandfather" nonconforming uses — to state that the land use may continue, so long as it was legal at the time it commenced. When a nonconforming use is terminated or a nonconforming structure is vacant for a certain period, typically six months or more, then the protection of grandfathering is lost. Resumption of the nonconforming use or occupancy is not allowed. The grandfather protection also does not apply to major renovations or expansions of a nonconforming structure, though it does typically protect routine maintenance and repair. A controversial issue is what to do if a nonconforming structure is destroyed or severely damaged by force majeure ("act of God"): should the owner be bound by the law as it now stands and not be allowed to restore the nonconforming structure, or should the grandfather protection extend to a reconstructed nonconforming building as long as it is built with all due diligence within a specific period after the destruction?

Another method of dealing with nonconforming uses is amortization, which requires the termination of a nonconforming use after a period of time. Amortization has long been a controversial land use regulation technique, as owners of nonconforming uses can claim that the removal of a nonconforming use at the end of an amortization period, without compensation, is unconstitutional.

Other techniques for the removal of nonconforming uses often appear in sign ordinances. Some ordinances authorize the removal of nonconforming signs when a vacant lot with nonconforming signs is developed, or when there is a change in the use of a lot on which a nonconforming sign is located.[331] Other sign ordinances require the elimination of a nonconforming sign when there is a change in the sign, such as the sign structure.

Nonconforming Use Statutes

The Standard Zoning Enabling Act (SZEA)[332], the model act produced in the 1920s by the U.S. Commerce Department and the basis of many states' zoning enabling statutes, did not expressly address the issue of nonconforming uses. Nevertheless, most states, even those whose zoning statute is based directly on the SZEA, provide some protection for nonconforming uses in their zoning enabling act.

The American Law Institute's (ALI) Model Land Development Code addressed nonconforming uses. Commentary to the ALI Code was skeptical about the ability of local governments to eliminate nonconforming uses, and provided limited authority for their removal.[333] The ALI Code authorizes local governments to require the discontinuance of nonconformities if there is a local comprehensive or area plan in place and the nonconformity is inconsistent with that plan and with the neighboring land uses.[334] If development similar to the use or structure proposed to be discontinued could be undertaken in the same area under existing regulations, the local government cannot compel discontinuance.[335]

Alaska[336] regulates the height of structures and uses near airports, and provides generally that nonconforming structures cannot "become a greater hazard to air navigation than ... when the applicable regulation was adopted." But if a structure or tree is abandoned or more than 80 percent "destroyed, deteriorated, or decayed," under the Alaska statutes, then the height cannot exceed present regulations and the structure or use may be removed at the owner's expense. Arizona does not expressly authorize the protection of nonconforming uses. However, it does, in its statute authorizing the purchase or condemnation of property with a nonconforming use,[337] state that such power does not affect "the right to ... continued use for the purpose used at the time the ordinance or regulation takes effect, nor to any reasonable repairs or alterations in buildings ... used for such existing purpose." Under the Arizona statute, a local government cannot make the termination of a nonconforming use or structure a condition for the issuance of any permit unless it also pays just compensation.

Connecticut's general zoning enabling statute provides that zoning ordinances "shall not prohibit the continuance of any nonconforming use ... [and] shall not provide for the termination of any nonconforming use solely as a result of nonuse for a specified period of time without regard to the intent of the property owner to maintain that use."[338] Delaware protects nonconforming uses as long as "no structural alteration of [the] building is proposed or made."[339] Indiana has only a general authorization that zoning ordinances may include "provisions for the treatment of uses, structures, or conditions that are in existence when the zoning ordinance takes effect."[340]

Kansas[341] protects nonconforming uses and buildings if they are not altered, and a nonconforming building or use in a building is not protected if the building is damaged by more than half its fair market value. Kentucky[342] states that that uses lawful at the time any zoning regulation is adopted may continue despite being in violation of that regulation.[343] Also, uses that have existed illegally for a continuous ten years or more but have never been the subject of any enforcement action are subject to a provision that prohibits enlargements or extensions of the use and changes from one nonconforming use to another, more intense use.[344]

Louisiana[345] protects only "premises which have been continuously used for commercial purposes since January 1, 1929 without interruption for more than six consecutive months at any one time." Billboards may be removed pursuant to a "reasonable amortization time." Michigan[346] extends general protection to nonconforming uses, and grants local legislatures broad authority to regulate the "resumption, restoration, reconstruction, extension, or substitution" of nonconforming uses, with the express authority to treat different classes of nonconforming use differently.

Massachusetts provides that "uses lawfully in existence or lawfully begun" are not subject to new zoning ordinances or bylaws, except for "any change or substantial extension of a use," "any reconstruction, extension, or structural change of such structure," and "alteration of a structure ... to provide for its use for a substantially different purpose ... except where alteration, reconstruction, extension, or structural change to a single or two-family residential structure does not increase the nonconforming nature of said structure." If an extension or alteration of a nonconforming use or structure "shall not be substantially more detrimental" than the existing use or structure, the local government may approve a permit for such extension or alteration. Zoning ordinances may regulate nonconforming uses or structures abandoned for two years or more.

Nebraska[347] protects existing lawful uses of land, except when the use is abandoned or the structure it is located in is structurally altered. If no structural alteration is needed, a nonconforming use may become more intense, but if a nonconforming use is made less intense or becomes conforming, then it may not revert to a more intense nonconforming use. Nevada[348] has an airport zoning enabling act that requires a permit for structures to be built or altered in the vicinity of an airport, but does not require a permit for the maintenance of an existing structure or for alterations that will not increase the height of the structure. Under the statute, no nonconforming structure may become higher than it was when the relevant airport zoning ordinance was adopted or amended.

New Hampshire[349] states that zoning ordinances do not apply to structures or uses existing at their adoption unless a building is altered for a use "substantially different" than the one in place at the time of adoption. New Jersey law[350] states that nonconforming uses may continue, and may be restored or repaired in event of their partial destruction. A certificate of nonconforming use or structure, affirming that the use or structure was lawful when the ordinance rendering it nonconforming was adopted, can be obtained from the local government by owners and prospective purchasers and mortgagees. New York[351] protects subdivision plats, once approved, from changes in local zoning law that would increase lot dimensions or setback restrictions from those in effect when the plat was filed.

North Dakota generally provides that existing nonconforming uses are protected as long as they are not discontinued for more than two years.[352] However, the county commission may enact reasonable regulations to "regulate and control" nonconforming uses,[353] so that the local government may be able to adopt an amortization ordinance. Ohio[354] protects nonconforming uses unless voluntarily discontinued for more than two years, and municipalities (but not counties or townships) may by ordinance set a discontinuance period of more than six months but less than the statutory two years. Both municipal legislatures and county and township boards are authorized to regulate "completion, restoration, reconstruction, extension, or substitution of nonconforming uses upon ... reasonable terms."

Oregon[355] protects nonconforming uses, except when they are interrupted or abandoned. Alterations in a nonconforming use may be approved in the same circumstances as a variance, but local governments may not prevent or place conditions on an alteration necessary to comply with safety laws or keep the property in good repair. Nonconforming structures destroyed by fire or "other casualty or natural disaster" may be rebuilt within one year of destruction. Pennsylvania authorizes local zoning ordinances to "identify and register" nonconformities.[356]

Rhode Island provides for nonconforming uses, but expressly provides that this does not restrict the local power to abate nuisances, and authorizes the local government to treat nonconformities of dimension differently than nonconformities of use.[357] Abandonment terminates the protection, but abandonment must be an overt act demonstrating the owner's intent to abandon the nonconforming use; involuntary non-use as from a disaster does not constitute abandonment. To ease enforcement, non-use for one year creates a rebuttable presumption of abandonment.[358] Local governments are authorized to approve alteration of a nonconforming use and to impose conditions on that approval.[359]

South Carolina[360] provides a general protection of nonconforming uses and structures and a general authorization for the local government to enact ordinances for the "continuance, restoration, reconstruction, extension, or substitution of nonconformities." Tennessee[361] has a very broad amortization protection: a nonconforming use may be expanded, and the local government shall not deny a permit to such expansion, so long as "there is a reasonable amount of space for such expansion on the property" (meaning the existing property, not including any additional acquisition of land) and the expansion does not change the zoning classification of the property under the zoning ordinance applicable to the property (as opposed to the present ordinance).

Texas protects only "property...used in a public service business" under its nonconformity statute.[362] Vermont[363] does not expressly protect nonconforming uses, but authorizes local ordinances controlling changes in nonconforming uses, extension or enlargement of uses, resumption of discontinued uses, or enlargement of a structure containing a nonconforming use. Virginia[364] treats nonconforming uses as an extension of vesting, and protects them unless they are altered, expanded, or discontinued for more than two years.

In West Virginia[365], the nonconforming use protection has the usual limitations that the use cannot be altered or abandoned. However, agricultural uses are expressly protected even if they are abandoned, and alteration or replacement of agricultural, industrial, or manufacturing uses does not terminate the protection. Wyoming[366] protects nonconforming uses except when abandoned, and authorizes local ordinances to regulate or prohibit expansion or alteration of an nonconformity. Wisconsin's provision on nonconforming uses[367] does not protect the expansion of uses, nor uses discontinued for a 12 month period, and alterations on a nonconforming structure cannot cumulatively exceed 50 percent of the property's assessed value or the property must be permanently converted to a conforming use.

Regulation of Nonconforming Uses

There is considerable case law on nonconforming uses from the state courts.[368] Some states approach nonconforming uses differently than other states, and some things that are upheld in one state may be rejected by the courts in another state. The following summarizes the law of nonconforming uses from the various state courts.

When a use is added to or substituted for the existing nonconforming use, there is a split on whether the state courts consider the use still subject to protection. Clearly, a use unrelated to the protected use is not itself protected. (If it were otherwise, the land development regulations would be rendered ineffective because any nonconforming use could be the legal basis to commence any otherwise-illegal use.) However, while some courts take a strict position that any new or additional use is not protected,[369] others extend protection to related uses, such as ones essential or integral to the existing use,[370] uses with the same nature or purpose as the existing nonconforming use,[371] or uses with the same quality or character.[372] The expansion of a nonconforming structure is not covered by the nonconforming use protection and is subject to present land development regulations.[373] Abandonment as a basis for ending protection has been upheld, including ordinances that presumed intent to abandon if the property was unused for a particular period,[374] but some states have held that "abandonment" compelled by circumstances outside the owner's control does not terminate protection.[375] On the other hand, statutes and ordinances prescribing that nonconforming use protection terminates if more than a certain percentage of a structure is destroyed have survived judicial review.[376]

Amortization

Amortization is an important but not always successful technique for the removal of nonconforming uses. The removal of nonconforming buildings is usually delayed for substantial periods of time because amortization periods for such buildings are quite long. Enforcement of the termination required at the end of the amortization period may be difficult. Amortization has had its greatest success in the removal of nonconforming signs. Amortization may be essential in a local sign program when a local government adopts an improved sign ordinance because landowners who erect new signs will be reluctant to comply with the new ordinance if more prominent nonconforming larger signs are allowed to remain.

The amortization of billboards by local governments is affected by the federal Highway Beautification Act, which requires states to regulate billboards along federally-aided highways. A provision in the act effectively prohibits the use of amortization by local governments to remove nonconforming signs along these highways,[377] and many states have adopted statutes that incorporate the federal prohibition. These statutes may also prohibit any amortization of signs or billboards by municipalities. Although the federal law does not make a local ordinance that amortizes billboards invalid, a state can lose federal highway assistance if a local government violates the federal prohibition on amortization.

Most amortization provisions in zoning ordinances fall into two categories. In the first category, an ordinance adopts a fixed time period for the amortization of particular nonconforming uses, such as billboards. At the end of the time period, all nonconforming uses in existence at the time the amortization ordinance was adopted must terminate.

The second type of amortization provision applies amortization on a case-by-case basis. The ordinance contains criteria that the legislative body or another official applies on a case-by-case basis to set an amortization period for nonconforming uses. If a nonconforming user does not agree with the decision on the amortization time period, it can challenge the decision in court.

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