Babcock, Richard F.

English

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Introduction to the Model Enabling Act for Planned Residential Development

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[Vol.114AN INTRODUCTION TO THEMODEL ENABLING ACT FOR PLANNEDRESIDENTIAL DEVELOPMENT *RIIlARD F. BABcocx tThe cookie-cutter pattern of residential development to which thecountry became accustomed during the decade after World War II isnow being challenged. The shift in the suburban house market froma seller's paradise to a hot contest for skeptical buyers has occurredsimultaneously with demands for new ideas in center city residentialdevelopment. These pressures have produced imaginative proposalsby planners and land developers for significant changes in the designof residential subdivisions. The heart of these new concepts is a re-jection of the homogeneous, single lot, single family subdivision. Theproponents of these new ideas urge that by every reasonable test-from the economic to the aesthetic-the development of open land andthe redevelopment of reclaimed land should not only provide a varietyof housing types but, to meet the needs of a new and more sophisticatedmarket, should offer a variety of amenities that seemed superfluous tenyears ago. Advocates of the new concepts also make a persuasiveargument that the planning of large scale developments cannot be sub-jected to a degree of preregulation which assumes that every tract ofland is fungible and can be controlled in advance by the same rulesthat govern all other tracts of land.The most serious obstacle in the path of these new ideas is theorthodox zoning and subdivision regulations that swept the countryin the twenties. These ordinances were-and in most instances stillare-bottomed on the assumptions that dwellings must be segregatedby type, that creation and maintenance of open space is solely a functionof government, and that the home building business is conducted bymaster craftsmen who merely construct a single house on a single lot.The disparity between the condition of the law and the realitiesof the market would not be quite so serious if adoption of the new* This introduction, while similar to the preface to the act as published in UrbanLand Institute Technical Bulletin 52, at 67-68 (1965), contains some observations bythe author which are not found in the original preface.t Partner, Ross, Hardies, O'Keefe, Babcock, McDugald & Parsons, Chicago,Illinois. Member, Illinois Bar. J.D. 1946, M.B.A. 1951, University of Chicago.Commissioner, Northeastern Illinois Planning Commission. Director, American So-ciety of Planning Officials. Affiliate Member, American Institute of Planners.(136)1965] SYMPOSIUM: INTRODUCTION TO MODEL STATUTE 137concepts were only a matter of municipal regulation. The rub is thatin nearly all jurisdictions the municipalities rely upon authority dele-gated from the state in order to regulate the use of private land, andthe statutes that enable municipalities to regulate land use reflect thesame antique assumptions about land development that are antitheticalto the new techniques.An observer of the dreary residential construction in the fiftiesmay regard with skepticism a piece of legislation cosponsored by agroup such as the National Association of Home Builders which repre-sents the interests of an important segment of the homebuilding indus-try. It has been the purpose of the sponsors of the statute, however,to combine substantive flexibility and administrative certainty for thedeveloper with necessary protection for the municipality.This model enabling act was drafted to provide a legal frameworkwithin which new ideas could be tested and new demands could bebetter satisfied. The fact that numerous municipalities were alreadyexperimenting with local regulations to accommodate the new con-cepts-in the absence of any clear authority from the state-wasconsidered an argument for proposing such legislation, not a reasonto ignore the situation. For example, the durability of devices em-ployed by municipalities to bind the developer to his representations onpermanent common open space is questionable in the absence of clearstatutory authority.Specifically, new enabling legislation is necessary because:1. The subdivision (platting and design) function and the zoningfunction (use and bulk) are treated separately in the statutes and inthe ordinances. This separation may be no more than a nuisance tothe developer under Euclidean zoning, but it is a serious obstacle tothe use of the Planned Residential Development. Density zoningcan function best when these two regulatory devices are treated as oneissue, at one time, by one agency.2. The legislative-administrative dichotomy in local regulation ofland use and platting raises unnecessary problems at the level ofjudicial review. The source of the difficulty is that the subdivisionfunction is frequently treated as an administrative responsibility, whilethe zoning function is considered legislative. This distinction isaccentuated in density zoning where preregulation to the degreecommon in orthodox zoning is unacceptable. Enabling legislationshould eliminate the distinction between administrative and legislativeaction at the municipal level in order to permit a local body both tooperate in an ad hoc manner, subject to standards, and to permit re-138 UNIVERSITY OF PENNSYLVANIA LAW REVIEWviewing courts to impose strict accountability on that local bodywhether it be regarded as legislative or administrative. By imposingmore stringent procedural safeguards on the increased discretion in-herent in any departure from orthodox zoning, a new statute can mini-mize, if not wholly eliminate, the abuses which uncontrolled densityzoning invites. Moreover, when the local legislature departs from itstraditional role of general rule making and, in effect, grants land usecertificates or licenses in particular cases, the courts should be in aposition to review that action to insure equal protection and pro-cedural due process in a manner similar to judicial treatment of ad-ministrative decisions of state or federal agencies.3. The enabling legislation presently in effect does not anticipatethe problems arising out of the creation of open space by densityzoning. Most current legislation is silent on the right (or nonright)of the municipality to take over the collection of assessments, or to en-force, or, indeed, to authorize the modification of private covenantspreviously required or approved by the municipality. The identityof the persons responsible for the continuing control of common openspace is also unclear under current law.4. There is doubt in some jurisdictions whether planned develop-ments are permissible under standard enabling acts that require "uni-formity" as the touchstone of zoning law. Even greater uncertaintywould result if any one jurisdiction were to hold that the standardzoning enabling act was incapable of supporting a planned development.There are municipalities which express a desire to enjoy the benefitsof density zoning but articulate a concern over their power to do so.This uncertainty is also of increasing concern to mortgagees and titlecompanies. The statute would eliminate the fears of all interestedparties by clearly making this power available on an optional basis.This proposed act is not intended to supplant the standard en-abling acts which, along with their dependent ordinances, are ap-propriate for the regulation of land use in neighborhoods that arealready substantially developed. Rather, this act, which may be con-sidered an amendment to the previous acts, is designed to authorizeunequivocally new techniques of land development in cases where thosetechniques are deemed appropriate by the municipality.The statute begins with (section 1) the constitutional generaliza-tion of the preamble; continues with (section 2) a delineation of theboundaries within which this technique shall be employed if the mu-[Vol.114:1361965] SYMPOSIUM: INTRODUCTION TO MODEL STATUTE 139nicipality so chooses, (section 3) an enumeration of the basic criteriarequired by the state in all cases, (section 4) the definition of the re-spective interests of the residents and the municipality in the enforce-ment and modification of the plan, (sections 5-10) a chronologicalaccount of the procedural steps which a prospective applicant musttake in the course of local administration and possible court review;and concludes with (section 11) the definitions.

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Introduction to the Model Enabling Act for Planned Residential Development

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