Your client came to you with a question. He is a housing developer with a 30-acre property on which he plans to build multi-family housing. He has a development plan that includes project density, building type and location, a circulation system, architectural design, and other project details. The property is zoned single-family, and your client asked the city how the zoning could be changed. The city told him that it must first rezone his property to a planned unit development zoning district, and then he must ask the city to approve the project and its development plan. Your client asked for an explanation of what the city requires. What should you tell him?
Planned unit development is the dominant method of development in many communities. It can be anything from a small-scale project to a master-planned community. Glenwood Park in Atlanta, Georgia, is a successful, moderately sized 28-acre retail, office, and residential mixed-use development. Development Principles, Glenwood Park, https://tinyurl.com/glpark. Lakewood Ranch outside Sarasota, Florida, is a mixed-use master-planned community built on 31,000 acres, including housing, retail shopping, offices, and entertainment opportunities. https://tinyurl.com/laflcom.
Planned unit development became a significant development method in the 1950s and 1960s because standard zoning and subdivision ordinances have severe design flaws. Conventional zoning establishes zoning districts with land uses and densities available by right. Residential and nonresidential development cannot be mixed because only one use is usually allowed in each zoning district. Mixed-use development is not possible.
Zoning districts also contain setbacks, site coverage, site development, and similar requirements that must be uniform in each district. Subdivision control deals principally with infrastructure and lot and block layout in new subdivisions. Providing usable open space is an inherent problem because most open space is devoted to private yards around residential dwellings.
Development built to satisfy these requirements often has a dull and uniform appearance, which has earned it the nickname “cookie-cutter” development. Planned unit development is an alternative that provides integrated, unified, and customized design.
Statutory authority can be a problem because the Standard State Zoning Enabling Act (SZEA) adopted by most states does not authorize planned unit development, but the courts have found implied authority. Campion v. Board of Aldermen of City of New Haven, 899 A.2d 542 (Conn. 2006), for example, held that a special state zoning act modeled on the SZEA provided the necessary authority for an ordinance that authorized planned unit developments as floating zones.
The Connecticut court held that statutory authority to zone should not be judged by the rigid standards of conventional zoning, which authorizes only zoning districts. Rutland Environmental Protection Ass’n v. Kane County, 334 N.E.2d 215 (Ill. App. Ct. 1975), held that the bargaining and negotiation in the planned unit development review process is not invalid as contract zoning.
Several states provide statutory authority that may simply authorize zoning for planned unit development. Other states, like Nevada, provide detailed standards, such as requiring a planned unit development ordinance to include “standards governing the density or intensity of land use.” Nev. Rev. Stat. § 278A.110. These standards can vary based on factors such as “The amount, location and proposed use of common open space” and “The location, design and type of dwelling units.” Id. The planned unit development ordinance must also have “standards and criteria by which the design, bulk, and location of buildings is evaluated.” Id. § 278A.220(1).
A municipality can select from several zoning alternatives for planned unit development. The floating zone approved by the Campion case is one alternative. A municipality first adopts a planned unit development zone in the text of its zoning ordinance. The zone “floats” in the text until a developer applies to have his property mapped for the zone. The municipality can then replace the existing zone with the floating planned unit development zone. The floating zone alternative allows a municipality to decide where planned unit developments will be located and specify the type of planned unit development it will approve.
Cluster zoning is residential planned unit development based on a plan approved by the planning commission. Cluster zoning does not increase residential density but clusters the residential housing allowed in part of the development on smaller lots. The area not occupied by housing is reserved as a shared open space. Cluster zoning provides an opportunity to provide good design, reduce infrastructure costs because less land is required for roads and other public services, and protect open space and other natural resources.
An overlay zone has zoning for planned unit development that overlays the existing zone, which continues to apply. An overlay zone provides some certainty to the public about the planned unit development because it applies only to the extent that it supplements the existing zone. To avoid ambiguity in the zoning that applies to the planned unit development, an overlay zone must indicate how it supplements the existing zone.
A planned unit development district can have development standards that allow planned unit development by right if it complies with the standards. By-right zoning creates certainty for developers and avoids the delay and potential opposition in a discretionary review and approval process. By-right zoning is especially effective when the built environment provides a basis for development standards. Infill development in downtown areas is an example. Tucson, Arizona, began its Downtown Infill Incentive District in 2006. See Ariz. Rev. Stat. § 9-499.10 (authorizing infill districts).
A zoning ordinance can provide for planned unit development by including a discretionary review and approval process that involves the legislative body and the planning commission. The process begins with the legislative body’s adoption of a concept plan. This plan, sometimes called a “bubble” or “sketch” plan, requires legislative approval and generally specifies the densities and the allowed development type.
The planning commission approves a preliminary development plan after the legislative body approves the concept plan. The ordinance specifies what the development plan should include and provides standards for the commission to apply when it approves the preliminary development plan. If the final development plan complies with the preliminary development plan, the commission will approve it.
In some communities, the legislative body approves the development plan when it adopts the planned unit development district or later, either with or without a previously approved concept plan. Some communities prefer this option because it allows the legislative body, not the planning commission, to make the essential policy decisions that determine the character of a planned unit development.
The ordinance provides standards for the planned unit development that will guide the planning commission when it reviews a development plan for approval. Standards can be nondiscretionary or authorize the planning commission to exercise its discretion. Discretionary standards must be clear and objective. Otherwise, the developer must negotiate with the planning commission for approval because the standards provide an ambiguous guide for decision-making. The following standards are typically included in planned unit development ordinances.
Size. The ordinance should include a minimum size requirement if a municipality wants planned unit development to be available only on sites with a minimum acreage.
Site Development, Dimensional, and Bulk Standards. These standards specify the building envelope for planned unit development, such as setback and height standards. They can be included in the planned unit development ordinance, or the ordinance can provide criteria that the planning commission will apply when it decides what standards should be included in the development plan.
Design. The planned unit development ordinance can specify the required design for planned unit developments. Design standards need to be clear and objective. For example, the ordinance may require “a development with a unified site design that has housing of different types and densities and compatible nonresidential uses.”
Sinkler v. County of Charleston, 690 S.E.2d 777 (S.C. 2010), considered a design standard in the South Carolina planned unit development statute similar to this standard. The county rezoned a property from an agricultural to a planned unit development district, reduced the minimum lot size to one acre, but left permitted uses and the maximum number of residential dwellings unchanged. The court held that this planned unit development did not comply with the statute. The only effect and reason for the rezoning was to avoid the restrictions in the agricultural district and increase density. See my book, Designing Planned Communities (2010), https://tinyurl.com/dgnplpc.
Circulation Systems. The planned unit development ordinance should require circulation systems for development plans. A traffic circulation system can provide standards for access points, separate pedestrian and vehicular traffic, and arrange safe and convenient parking areas. When walkability is an objective, a pedestrian circulation system can provide walkability standards for pedestrian movement between major origins and destinations within and adjacent to the project.
Common Open Space. This is an essential feature of cluster zoning and can be included as an amenity in other types of planned unit development. The ordinance should indicate what types of common open space are acceptable, how much is required, where, the minimum size, and what uses and structures are allowed.
A public agency can hold and manage common open space. The other alternative is to provide in the ordinance for forming a private homeowners association and the dedication of the common open space to the association. The ordinance should require association bylaws that make all homeowners members of the association, specify how the association should be organized, including representation and voting, authorize the association to maintain and manage the common open space, and allow the collection of necessary fees from homeowners.
Social Responsibilities. The ordinance can require the planned unit development to accept social responsibilities. For example, the ordinance could require a certain percentage of the housing in the planned unit development to be affordable. It could also include trip capture, which requires that a certain percentage of the vehicle trips in a planned unit development must be internalized to reduce carbon emissions. Requirements such as these may be possible only in large-scale, mixed-use developments that have a variety of housing and include office and retail developments that can capture trips.
Planned unit development is a significant change from traditional zoning. Getting the planned unit development ordinance right requires deciding what zoning method should be adopted and paying careful attention to the zoning structure, process, and standards that control project design and character.
See my report, Planned Unit Developments, Planning Advisory Serv. Rept. No, 545 (American Planning Association 2007), https://tinyurl.com/pudrep, and my article, New Perspectives on Planned Unit Developments, 52 Real Prop. Tr. & Est. L.J. 229 (2017), https://tinyurl.com/pdevper.
