|
development, development regulations
<br />addressing community association respon-
<br />sibilities are where the rubber hits the road.
<br />A review of a subdivision proposal based on
<br />aesthetics, compliance with existing zoning,
<br />traffic, the availability of public utilities to
<br />service it, and similar
<br />criteria is typical.
<br />With a large sub-
<br />division, a street and
<br />trail plan, open space
<br />management, parks,
<br />schools, and similar
<br />facilities add challenges
<br />that are nothing unusual.
<br />If a community asso-
<br />ciation with "normal"
<br />improvements —streets,
<br />parks, tot lots, and open
<br />space —fails in its job
<br />or its funding, the place
<br />will look bad but won't
<br />threaten someone's
<br />health orwell-being.
<br />When you add to
<br />that mix critical flood
<br />or stormwater control
<br />facilities, the planner
<br />must question owner
<br />capability. If the development includes engi-
<br />neered improvements —dams, levees, land-
<br />slide mitigation measures such as debris
<br />fences or large retaining walls, recreational
<br />lakes that are part of a regional stormwater
<br />management system, or any similar im-
<br />provement —which, if they fail, will endanger
<br />other property or human life, the planner
<br />should carefully analyze the situation before
<br />responsibility is delegated to lay owners for
<br />maintenance and repair.
<br />If the planner cannot with confidence say
<br />that the future owners of a proposed subdivi-
<br />sion can fund the proper
<br />maintenance and repair
<br />of a critical piece of
<br />infrastructure, serious
<br />consideration should
<br />be given to rejecting the
<br />project outright, recom-
<br />mending that the mitiga-
<br />tion facilities be publicly
<br />owned and maintained
<br />using broad -based tax
<br />revenues, or requiring
<br />the developer to post a
<br />financial performance
<br />guarantee calculated to
<br />underwrite at least half
<br />of the cost of failure,
<br />while bearing interest to
<br />guard against inflation.
<br />In manyjuris-
<br />dictions, any of the
<br />foregoing options will
<br />elicit objections from
<br />the developer, the planning commission, or
<br />both. But unless we realistically evaluate the
<br />capability of the eventual owner to properly
<br />care for critical facilities, the planner will leave
<br />too much to chance and the local government
<br />may inherit it anyway, but at a much less op-
<br />portune time.
<br />If the planner cannot
<br />with confidence
<br />say that the future
<br />owners of a proposed
<br />subdivision can
<br />fund the proper
<br />maintenance and
<br />repair of a critical
<br />piece of infrastructure,
<br />serious consideration
<br />should be given to
<br />rejecting the project
<br />outright ...
<br />REFERENCE AND RESOURCES
<br />Feiden, Wayne, and Burby, Raymond. 2002. Performance Guarantees for Government Per-
<br />mit -Granting Authorities. PAS Report No. 508. Chicago: American Planning Association.
<br />Available at planning.org/publications/report/9117596.
<br />Gadsen (Alabama), City of. 2013. Code of Ordinances. Chapter io8: Stormwater Manage-
<br />ment Regulations. Section 108.5: Stormwater system design and management stan-
<br />dards. Part g: Maintenance Agreement. Available at: tinyurl.com/hlbabkt.
<br />Lake (Illinois) Stormwater Management Commission, County of. 2015. Watershed Develop-
<br />ment Ordinance. Available at lakecountyil.gov/DocumentCenter/Home/View/.3445-
<br />Rafter, Dan. 2000. "The Messy Business of Maintaining BMPs." Stormwater, March 16.
<br />Available at tinyurl.com/gsm8lss.
<br />Roanoke (Virginia) Stormwater Advisory Committee, County of. 2014. "StormwaterAdvi-
<br />sory Committee." Available at roanokecountyva.gov/index.aspx?NID=1412.
<br />Roanoke (Virginia), County of. 2016. Code of Ordinances. Chapter 23: StormwaterManage-
<br />ment. Available attinyurt.corn/zyjpa77.
<br />ABOUT THE AUTHORS
<br />Tyler Berding is an attorney and founding
<br />partner of BerdingWeil, LLP, located in Walnut
<br />Creek, California. Berding and his firm have
<br />represented more than 1,00o community
<br />associations over the past4o years. He holds
<br />a JD from the University of California, Davis;
<br />and an MA and PhD in Government from
<br />Claremont Graduate University. He writes
<br />extensively about community associations
<br />and their role in modern real estate
<br />development.
<br />Joseph DeAngelis is a planner and researcher
<br />with the American Planning Association
<br />in Chicago. Previously, he was a resiliency,
<br />planner for the New York City Department
<br />of City Planning, where he worked on long-
<br />term planning and zoning solutions for
<br />communities impacted by Hurricane Sandy.
<br />Cover: Photo by Dean Terry (A large
<br />community in Plano, Texas, near Dallas,
<br />Flickr CC-BY-NC-ND-2.o)
<br />Vol. 34, No. 3
<br />Zoning Practice is a monthly publication of the
<br />American Planning Association. Subscriptions
<br />are available for $95 (U.S.) and $12o (foreign).
<br />James M. Drinan, JD, Chief Executive Officer;
<br />David Rouse, FAICP, Managing Director of
<br />Research and Advisory Services. Zoning Practice
<br />(ISSN 1548-0135) is produced at APA.
<br />Jim Schwab, FAICP, and David Morley, AICP,
<br />Editors; Julie Von Bergen, Senior Editor.
<br />Missing and damaged print issues: Contact
<br />Customer Service, American Planning
<br />Association, 2o5 N. Michigan Ave., Suite
<br />1200, Chicago, IL 6o6oi (312-431-910o or
<br />customerservice@planning.org) within 90 days
<br />of the publication date. Include the name of the
<br />publication, year, volume and issue number or
<br />month, and your name, mailing address, and
<br />membership number if applicable.
<br />Copyright ©2017 by the American Planning
<br />Association, 2o5 N. Michigan Ave., Suite 1zoo,
<br />Chicago, IL 60601-5927. The American Planning
<br />Association also has offices at 103015th St., NW,
<br />Suite 75o West, Washington, DC 20005-1503;
<br />planning.org.
<br />All rights reserved. No part of this publication
<br />may be reproduced or utilized in any form or by
<br />any means, electronic or mechanical, including
<br />photocopying, recording, or by any information
<br />storage and retrieval system, without permission
<br />in writing from the American Planning
<br />Association.
<br />Printed on recycled paper, including 50-7o%
<br />recycled fiber and 1o% postconsumer waste.
<br />ZONINGPRACTICE 3.17
<br />AMERICAN PLANNING ASSOCIATION i page 7
<br />
|