NEW PERSPECTIVES ON PLANNED UNITDEVELOPMENTSDaniel R. Mandelker Author’s Synopsis: Planned unit developments, also called plannedcommunities, are a major development type. Originally cluster housingprojects with common open space, they can be planned today as infillin downtown areas or as a major master-planned community. Theyrequire discretionary review, are often dominant in the zoning process,and present a challenge to the zoning system. A threshold question ishow municipalities should zone for planned unit developments, and thisArticle discusses conditional use, base zone, and rezoning alternatives.This Article next discusses the zoning review process for these developments, which must operate fairly and produce acceptable decisions.Alternatives that can avoid or supplement discretionary review areconsidered next, and this Article concludes with a discussion of affordable housing as a social responsibility.I.II.INTRODUCTION . 230ZONING FOR PLANNED UNIT DEVELOPMENT . 235A. As a Conditional Use . 237B. The Base Zone Alternative . 2381. How It Is Done . 2382. Exceptions . 240C. The Rezoning Alternative . 2431. How It Is Done . 2432. Approval Standards. 247III. THE APPROVAL PROCESS . 256A. Concept and Development Plans . 257B. The Delay Problem . 260C. Neighbor Participation. 261IV. INFILL PROJECTS, FORM-BASED CODES, ANDDEVELOPMENT AGREEMENTS . 267A. Infill Development. 268 Stamper Professor of Law, Washington University in Saint Louis. I would like tothank Dean Nancy Staudt and the law school for their financial support. I would also liketo thank Sandra Hoffman, Aric Jensen, George M. Kramer, Robert Kuehn, Dee Joyner,Jim Mazzocco, Dwight Merriam, David L. Powell, Nancy Stroud, Ed Sullivan, DarcieWhite, Mark White, and Dan Tarlock for providing very helpful comments on all or partof this Article.
23052 REAL PROPERTY, TRUST AND ESTATE LAW JOURNALB. Form-Based Codes . 270C. Development Agreements . 273V. SOCIAL RESPONSIBILITIES: AFFORDABLE HOUSING. 275VI. CONCLUSION. 280APPENDIX A . 281APPENDIX B . 283I. INTRODUCTIONNorth of Atlanta, a major mixed-use development in the shape of anew town, rises on a new site.1 In Connecticut, a university town builds anew mixed-use town center.2 The first example is a master-planned community. The second example is infill development in town centers. Bothare contemporary examples of a zoning technique called planned unit1See URB. LAND INST., ULI Case Studies: Avalon, at 1 (Oct. 2016), s/98/2016/11/avalon 16pg v3.pdf. Avalon is an86-acre “mixed-use town center that, in its first phase, includes retail, restaurant, multifamily rental housing, single-family for-sale housing, and office uses surrounding a mainstreet and a central plaza.” Id. Avalon is twenty-five miles north of downtown Atlanta.See id. at 2; see also Marlene Cimons, The Most Sustainable Town in America, NEXUSMEDIA, (Mar. 10, 2017), wn-inamerica-a4330330700a#.te9beln4z (discussing Babcock Ranch, a major planned community in Florida planned as a sustainable project).2See URB. LAND INST., ULI Case Studies: Storrs Center (Aug. 2016) [hereinafterStorrs Center], es/98/2016/08/StorrsAUG2016 F.pdf; Wayne Senville, Building a New Downtown – Part I, PLANNERS WEB(Sept. 24, 2012), wn-parti/ (discussing the Storrs Center development); Wayne Senville, Building a New Downtown –Part II, PLANNERS WEB (Sept. 25, 2012), n-partii/ (continuing discussion of Storrs Center); see also Mansfield, Conn.,ZONING REGULATIONS OF THE TOWN OF MANSFIELD CONNECTICUT, art. 10, § 2/2036/20170620 zoning regs.pdf.Storrs Center created a new, mixed-use downtown for the town ofMansfield, Connecticut, replacing a small shopping center adjacent tothe University of Connecticut. Its 11 mixed-use buildings house 626rental apartments and 139,707 square feet of retail and office space; 42for-sale townhouses and condominiums are also on the site. Newretailers, such as a supermarket, restaurants, a medical center, and abookstore create an eclectic college-town atmosphere, while a halfacre town square and 20 acres of nature preserves provide places forgathering and recreation.Storrs Center, supra, at 1.
FALL 2017Planned Unit Developments 231development,3 a discretionary zoning process for approving developmentprojects also known as planned, or master-planned, communities.4 Thesevisionary projects are a major change from the original purpose ofplanned unit development.5 Planned unit development initially provided3Planned unit development (PUD) originated in the 1960s. See generally DANIEL R.MANDELKER, CONTROLLING PLANNED UNIT DEVELOPMENT (Am. Soc’y of PlanningOfficial, 1966) [hereinafter 1966 Report]. Planned development (PD) or planned areadevelopment (PAD) are examples of contemporary terminology sometimes included inzoning ordinances. Additional acronyms also appear such as PRD, for planned residentialdevelopment; PCD, for planned commercial development; or PDO, for planneddevelopment overlay district. They may also be called planned development districts(PDD) and special development districts (SDD). See, e.g., SAN CARLOS, CAL., MUNICIPALCODE ch. 18.10, anCarlos18/SanCarlos1810.html (establishing a PDD); NEWTOWN, CONN., CODE §§ 595-158 to 595-163,http://ecode360.com/15304088 (providing for a SDD). This Article uses the term“planned unit development” to describe these development forms. This Article only considers the use of planned unit development for residential or mixed-use developments,though planned unit development is also used for industrial and commercial projects.4Whether zoning legislation provided authority for PUD was an initial concern andcreated an interest in model legislation:The first model PUD law was drafted in 1965 by the late Chicagoland-use lawyer Richard Babcock and other attorneys for a joint projectof the Urban Land Institute (ULI) and the National Association ofHome Builders. The model was proposed as a means to use “recentplanning innovations” to better serve the general objectives of theStandard Zoning Enabling Act and to meet new demands for housing.DANIEL R. MANDELKER, PLANNED UNIT DEVELOPMENTS, PLANNING ADVISORY SERV. REP.No. 545, 118 (Am. Planning Ass’n 2007) [hereinafter 2007 Report]. I spoke at a conference in Washington, D.C., in 1966, that introduced the model PUD law. Since thattime, PUD law has evolved, and a lack of statutory authority may not necessarily be aproblem. See generally Campion v. Bd. of Aldermen of the City of New Haven, 899 A.2d542 (Conn. 2006) (approving a PUD district under Standard Zoning Enabling Act andanalogizing it to floating zones). Indeed, Connecticut enacted planned unit developmentenabling legislation and later repealed it as unnecessary. See CONN. GEN. STAT. §§ 8-13bto 8-13K (repealed 1985); see also id. § 8-2d (providing under current statutory law thatPUD and PRD regulations promulgated pursuant to the previous statutes “shall continueto be valid,” and that any PUD or PRD that was in compliance under those provisions“shall continue to be governed by the provisions of such regulations”). For discussion ofplanned unit development legislation, see Daniel R. Mandelker, Legislation for PlannedUnit Developments and Master-Planned Communities, 40 URB. LAW. 419 (2008)[hereinafter Legislation].5See Mahlon Apgar, IV, Placemaking: Innovations in New Communities, URB.LAND INST. (2014), NOVATIONSIN-NEW-COMMUNITIES final.pdf (detailing a survey of New Communities in theUnited States and the United Kingdom); see also Camilla McLaughlin, New Keys for
23252 REAL PROPERTY, TRUST AND ESTATE LAW JOURNALflexibility in a rigid zoning system and was first used for single-familyresidential projects, known as cluster housing. Residential densities donot usually increase with clustering because designers lay out homescompactly at higher densities in return for dedicated common, openspace elsewhere in the project.6 This type of development is not possibleunder traditional regulations.Practice has moved beyond this limited purpose.7 Master-plannedcommunities are common, infill projects are done in urban areas, mixeduse has become a project objective, and projects include new objectivessuch as natural resource preservation and sustainability.8 Planned unitdevelopment is a major and sometimes dominant method by whichcommunities manage new projects. Instead of an add-on option whenModern Master-Planned Communities, URBAN LAND (July 15, 2015), -modern-master-planned-communities/ (discussing changesin development concepts and an increase in urban projects; noting that golf course andlarge clubhouse projects are becoming outdated).6Zoning and subdivision regulation did not allow this kind of development as theyrequired standardized “cookie cutter” lots, and there was no provision for common openspace. Preservation of open space was an important motivation, and William Whyte’sbook provided important momentum. See William H. Whyte, CLUSTER DEVELOPMENT(1964); see also NEW APPROACHES TO RESIDENTIAL LAND DEVELOPMENT: A STUDY OFCONCEPTS AND INNOVATIONS, ULI Technical Bulletin No. 40 (1961). ProfessorWhittemore views cluster development as the reason for adopting planned unitdevelopment as a zoning process, and he claims it has failed; he discusses a case studydone in Los Angeles in the 1960s about neighborhood opposition to and rejection of thistype of development. See generally Andrew H. Whittemore, The New Communalism: TheUnrealized Mid-Twentieth Century Vision of Planned Unit Development, 14 J. PLAN.HIST. 244 (2015). This view of planned unit development is too restricted. Clusterdevelopment has been successful elsewhere, and planned unit development has takenother forms. See supra notes 1 and 2.7Other types of planned unit development include (1) single-use development, suchas residential or nonresidential development, with an increase in density; (2) mixed-usedevelopment with or without an increase in density; and (3) a master-plannedcommunity. See VT. LAND USE EDUC. & TRAINING COLLABORATIVE, PLANNED UNITDEVELOPMENT (2007), on/PlannedUnitDevelopment.pdf. But see Whittemore, supra note 6. These are mixed-use communities,often of substantial size, that contain one or more residential villages and town centers.Planned unit developments may occur on open greenfield sites in suburban areas or oninfill sites where the planned unit development will be surrounded by existing urbandevelopment.8See generally RICHARD FRANKO ET AL., DEVELOPING SUSTAINABLE PLANNEDCOMMUNITIES (2007); KALVIN PLATT, MASTER-PLANNED COMMUNITIES: LESSONS FROMTHE DEVELOPMENTS OF CHUCK COBB 184–86 (2011).
FALL 2017Planned Unit Developments 233traditional zoning does not produce optimal results, planned unitdevelopment has become an instrumentality for improvements in sitedesign and development.Planned unit development today presents challenges to the zoningsystem that have not been fully resolved. An important concern is theelimination of by-right conventional zoning. Under by-right zoning, anordinance contains the rules that apply to new development, and a developer can build under them without further review.9 The developer hasan entitlement. There is no need for discretionary approval, and there isno public participation in an approval process. Planned unit developmentrequires a discretionary review that eliminates this entitlement.10This shift to discretionary review is a major and critical change. Byright zoning provides certainty, and planned unit development reviewremoves certainty. This change creates problems for developers whoinvest in new projects, neighbors affected by project proposals, and municipalities that control project outcomes. The process must be managedso that developers enter with minimal risk, and municipal and citizenconcerns are considered. There must be decisions about when and howmunicipalities review planned unit developments and under whatstandards. The system must maintain public control while providingopportunities for flexibility and design. Public participation must be constructive, not destructive.This Article explores the primary issues raised by planned unitdevelopment. My reports on planned unit development11 and my book on9However, a land use attorney with forty years of experience stated that he veryrarely had a zoning project that his client could develop by right