Limit PUDs Near Sensitive Natural Areas
Kyler Massner (author), Jonathan Rosenbloom & Christopher Duerksen (editors)INTRODUCTION
Planned Unit Developments (PUDs) are negotiated developments that allow more flexibility in design than what would be typically allowed in traditional Euclidean zoning. Due to rigid development standards and the complicated amendment and variance processes of traditional Euclidian zoning, PUDs are now commonly used to secure approval for large developments on urban fringes and rural areas.[1] However, due to nonexistent or substandard regulations and inattentive oversight in some PUDs, particularly in rural areas, their use in or near sensitive natural areas can have serious adverse impacts.[2] For example, approval and administration of PUDs in some jurisdictions allow developers to minimize or waive environmental design and protection standards in a way that significantly damages sensitive natural areas. Local governments can remedy this by revising development codes to effectively regulate, restrict, or prohibit the use of PUDs near these sensitive natural areas. Effective regulation of PUDs implements development standards that reflect environmental principles. Such principles could include requiring developers to incorporate construction techniques that mitigate risks to wildlife and require the reintroduction of native plant species upon completion of a development.[3] Local governments can also restrict the number of PUDs approved in a given year, or completely ban the construction of new PUDs near sensitive natural areas.[4]
EFFECTS
Land development that is not properly overseen can contribute to a variety of harm to wildlife including loss of critical habitat, disruption of migration corridors, and pollution.[5] Proper oversight and regulation of PUDs allows a local government to permit residential and commercial development but also protect sensitive natural areas by leveraging PUDs innovative, flexible, and comprehensive design qualities.[6] For areas of critical importance, a local government can prohibit all development and protect the area’s natural ecology. If the area is appropriate for development, a local government might regulate the amount of and manner which PUDs are constructed to protect and enhance wildlife areas. To permit development and protect local wildlife, local governments can require PUDs to preserve specified amounts of protected open greenspaces that maintain critical habitat and fauna movement corridors. Furthermore, local governments can require these open greenspaces to be landscaped with native flora species which can protect and enhance biodiversity by providing food and habitat for local fauna[7](for a specific ordinance addressing clustered development see Cluster/Conservation Subdivisions in Rural/Urban Transition Areas; for a specific ordinance encouraging open space development see Incentives for the Preservation of Open Spaces). To further reduce PUDs impact on wildlife, transitional zones and construction practices that mitigate environmental risks can be required.[8] For best results, local governments should produce clear criteria in which to judge a PUDs environmental impact, and work closely with developers in achieving these goals.[9]
EXAMPLES
Teton County, ID
Teton County permits PUDs in urban/rural transitional zones but restricts the use of PUDs to protect the rural character of the community and preserve critical wildlife areas.[10] PUDs are either regulated as Rural Reserves PUDs or Planned Community PUDs.[11] PUDs in Rural Reserves are required to provide a minimum of 50% of the gross area as open space, while Planned Community PUDs must preserve 70% open space, where both types of PUDs are prohibited from development on lands which include identified critical wildlife areas or floodplains.[12] PUDs are also required to be located in a manner that minimizes visibility from highways, that minimize chances of being adjacent to other developments, and that minimize impact on agricultural activities.[13] The County requires that the protected open space be large, intact, and contiguous parcels of open land, and prohibits the gerrymandering of thin strips to meet open space requirements.[14] The County permits restricting public access to open spaces, but in the event that the open space is used for public recreation activities, then only one-half (1/2) of the open space acreage which is used is allowed to be counted towards required minimums, in addition to the lot in which it sits being prohibited from exceeding 2% of the developed land area.[15] Commercial uses are permitted in Rural Reserve PUDs, but are restricted to only serving the needs of residents of the PUD, with locations of commercial uses being away from highways and well inside the PUD.[16] The County also prioritizes the type of land which must be included in open spaces, holding that critical wildlife areas must be preserved first before relying upon agricultural lands or existing non-conservation uses to meet the requirement.[17]
To view the provision, see Teton County, ID, Code of Ordinances § 9-5-1 (2018).
Coon Rapids, MN
Coon Rapids completely prohibits new PUDs in the following zones: Conservancy Districts, Low Density Residential 1 Districts, Port Districts, and the River Rapids Overlay.[18] Conservancy Districts are areas the City finds unsuitable for development due to the areas important environmental qualities which include natural flood plains, areas with high water tables or adverse soil conditions, and areas that are deemed to contain natural features that provide conservation and recreational opportunities.[19] The prohibition of PUDs in these areas is stated to alleviate the consequences of flooding, to conserve natural resources, to maintain the areas rural character, to protect groundwater recharge areas, and prevent and curtail pollution.[20]
To view the provision, see Coon Rapids, MN, Code of Ordinances § 11-902 (2018).
Kittitas County, WA
Kittitas County prohibits PUDs in sensitive natural areas and requires PUDs in non-critical natural areas to meet environmental protection criteria prior to approval.[21] The character of a permitted PUD is based on whether it is located inside or outside of a designated Urban Growth Area (UGA).[22] All PUD development is reviewed under criteria requiring the creation and preservation of open spaces, along with the presence of design features that mitigate environmental impacts.[23] While PUDs in these zones are permitted, the County restricts the degree to which the PUDs density can vary from the underlying development zone. PUDs inside UGAs have a density variance capped at three times the underlying zone, whereas a PUD outside a UGA is prohibited from any density variance.[24] PUDs are completely prohibited in critical natural areas known as Resource Lands and Rural Lands in the Rural Working Land Use Designation.[25] Pursuant to state law, Resource and Rural Lands are sensitive natural areas a County must identify and regulate such as wetlands, aquifers, flood plains, and geologically hazardous areas. While the state allows development within these areas with strict environmental protections, Kittitas County goes a step further and completely prohibits PUDs in these sensitive natural areas.[26]
To view the provision, see Kittitas County, WA, Kittitas County Code § 17.36 (2013).
Kane County, IL
Kane County permits PUDs that encourage conservation and efficient land use.[27] The County requires PUDs to submit an Endangered Species Consultation Action Report and Land Use Opinion with any rezoning or special use request.[28] Moreover, the County reserves the power to require a conservation easement or fifty-foot transitional zone on a PUD to protect natural areas such as wetlands, rivers, streams, and other sensitive natural areas.[29] Every proposed PUD must identify and mitigate risks to wildlife during construction, and restore or enhance wildlife ecology post construction.[30] Before construction begins, the County requires developers to file a copy of the proposed project with state and private agencies that identify potential risks to the natural environment, in addition to requiring soil and erosion analysis, the implementation of erosion control procedures, and plans to reestablish flora diversity to levels either greater than or equal to levels pre-construction.[31] Whether a proposed PUD is required to maintain or enhance ecological diversity is determined by criteria provided, while all other non-required landscape improvements on the PUD are permitted only if they are environmentally sound and include native plant varieties appropriate to the region.[32] Before final approval of a proposed PUD, the Regional Planning commission then conducts an on-site inspection and renders either approval, approval with conditions, or rejection of the developer’s proposal. All final approvals are made with consideration given to how well the proposed PUD protects or improves the quality of the natural environment.[33]
To view the provision, see Kane County, IL, Subdivision Regulations § 19-137 (2012); Kane County, IL, Appendix B Zoning § A.2 (1992).
ADDITIONAL EXAMPLES
Austin, TX, Code of Ordinances § 25-2(B)(2)(5) (2015) (requiring PUDs to meet the environmental objectives of the City Code and conform to local energy efficiency standards).
Longmont, CO, Code of Ordinances § 15.03.060 (2016) (requiring PUDs to be setback 150 feet around riparian areas and 100 feet set-back for wetlands).
Whiting, IN, Code of Ordinance § 3.14-06A (current through 2018) (requiring PUDs to have a minimum undeveloped “open space” of twenty percent to be approved for development).
Destin, FL, Land Development Code § 11.03.02 (2007) (only allowing PUD development on non-sensitive natural areas).
ADDITIONAL RESOURCES
Model Development Code & User’s Guide for Small Cities, Edition 3.1, Oregon Transportation and Growth Management Program (Nov. 2015), https://perma.cc/SL9V-7J25 (last visited June 21, 2018).
Daniel R. Mandelker, New Perspectives on Planned Unit Developments, 52 Real Property, Trust and Estate Law Journal (Fall 2017), https://perma.cc/257R-YCQH (last visited June 21, 2018).
Planning Implementation Tools: Planned Unit Development, Center for Land Use Education (November 2005), https://perma.cc/7ZGG-PV9L (last visited June 21, 2018).
Chuck Lesniak & Wendy Rhoades, Planned Unit Developments, Planning and Zoning Department, https://perma.cc/74EG-JEMB (last visited June 21, 2018).
Kevin Nelson, Essential Smart Growth Fixes for Rural Planning, Zoning, and Development Codes, EPA 13 (Feb. 2013), https://perma.cc/79NG-G2ES (last visited June 21, 2018).
Brian Ross, Planned Unit Development Ordinance: From Policy to Reality, Minnesota Pollution Control Agency 12 (2008), https://perma.cc/QML8-XDYL (last visited June 21, 2018).
Kathleen E. Semon, The Role of Planned Unit Developments in South Carolina’s Coastal Zone: Synthesis Report, South Carolina Dept. of Health and Environmental Control 1 (January 2007), https://perma.cc/4AJ8-KTFC (last visited June 21, 2018).
CITATIONS
[1] Kevin Nelson, Essential Smart Growth Fixes for Rural Planning, Zoning, and Development Codes, EPA 13 (Feb. 2013), https://perma.cc/79NG-G2ES (last visited June 21, 2018).
[2] Id. at 13-14.
[3] Id. at 14-15; see Brian Ross, Planned Unit Development Ordinance: From Policy to Reality, Minnesota Pollution Control Agency 12 (2008), https://perma.cc/QML8-XDYL (last visited June 21, 2018).
[4] Nelson, supra note 1, at 14-15; see Brian Ross, supra note 3, at 12.
[5] EPA’s Report on the Environment: Land Use, EPA, https://perma.cc/39TW-RAVJ (last visited June 21, 2018).
[6] Kathleen E. Semon, The Role of Planned Unit Developments in South Carolina’s Coastal Zone: Synthesis Report, South Carolina Dept. of Health and Environmental Control 1 (January 2007), https://perma.cc/4AJ8-KTFC (last visited June 21, 2018).
[7] See John Roach, First Evidence That Wildlife Corridors Boost Biodiversity, Study Says, (Sept. 1, 2006), https://perma.cc/674K-UNMW (last visited June 21, 2018).
[8] See Brian Ross, supra note 3, at 12.
[9] Id.; see Nelson, supra note 1, at 13.
[10] Teton County, Idaho, Code of Ordinances § 9-5-2(E) (2018).
[11] Id. § 9-5-1.
[12] Id. § 9-5-2(D); Id. § 9-5-3(D).
[13] Id. § 9-5-2(E); Id. § 9-5-3(E).
[14] Id. § 9-5-2(D); Id. § 9-5-3(D).
[15] Id. § 9-5-2(B); 9-5-3(B).
[16] Id. § 9-5-2(B).
[17] Id.
[18] Coon Rapids, Minn., Code of Ordinances § 11-902 (2018).
[19] Id. § 11-901.
[20] Id. § 11-901, 902, 602, 1001, 1003.
[21] Kittitas County, Wash., Ordinance No. 2013-001 (Feb. 11, 2013).
[22] Kittitas County, Wash., Kittitas County Code § 17.36.015 (2013).
[23] Id. § 17.36.045.
[24] Id. § 17.36.025.
[25] Id.
[26] Compare Wash. Rev. Code § 36.70A.170 (1990), and Wash. Rev. Code § 36.70A.172 (2010), with Kittitas County Code § 17.36.015.
[27] Kane County, Ill., Subdivision Regulations § 19-137(2012).
[28] Id. § 19-136, 138, 139, A.1.
[29] Id. § 19-72(c)(2)-(3).
[30] Id. § 19-31, 32, 33, 34, 35, 36, 127.
[31] Id. § 19-34(b)(2), (4), (5), (7); 19-127; 19-33(b).
[32] Id. § 19-127.
[33] Id.§ 19-33(e)-(f).