Installation of Physical Improvements as Required in Subdivision Regulations

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Installation of Physical Improvements as Required in Subdivision Regulations

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The story of excessive and premature subdivision in the United States, particularly in the 1920s, is well known. The problems caused by this speculative real estate activity are still not solved. Tax delinquency, special assessment, delinquency, abandoned lots, all are symptoms of the areas of "dead land" that we find inside or on the outskirts of nearly every major city in the country. Most of our state tax forfeiture laws have proved inadequate to bring these dead lands back to life. There is some hope that our urban redevelopment laws will eventually furnish a method for solving the problem, but the current status of those laws in most states makes this solution questionable at present.

It takes only a cursory examination of excessive subdivision to determine that it was possible only because it was easy and cheap to subdivide land. All the speculator needed to "develop" a subdivision was enough money to survey the land, drive a few stakes, and prepare a publicity map. In some cases he might go so far as to erect a pair of ornamental gate posts at the entrance of the plat. The subdivider assumed no responsibility for actual development of the area — for transforming raw acreage into usable city lots served by streets, sidewalks, sewers, public water supply or any of the other physical improvements that differentiate urban from rural areas.

If a major cause for excessive subdivision is the fact that subdividing can be done with a very small investment, then an effective method for combatting excessive subdivision is to require that the subdivider invest a considerable sum of money in the subdivision before he is allowed to sell it. This has led to the requirement in modern subdivision control regulations calling for construction of improvements before the subdivider is permitted to record and sell his lots. Because there is such a wide range in the type and quality of improvements so required, any sort of a statistical analysis of the proportion of regulations that include such requirements would not have a great deal of meaning. It can be said, however, that any subdivision regulations that do not include such a requirement, will fall short of accomplishing as much as should be expected from them.

Without doubt, a most influential force in favor of improvement requirements has been the insistence of the Federal Housing Administration that their age insurance commitments be limited to developments that are economically sound. In order to be sure that they are sound, FHA has insisted that new subdivisions, if they are to be considered eligible for FHA insured mortgages, must be supplied with sewerage, graded and surfaced streets, and adequate water supply. It would be difficult to measure the extent of FHA influence on recent subdivisions, but it cannot be denied that FHA has established a worthwhile precedent, particularly in the thousands of communities in the United States that are still without subdivision control regulation.

Simply requiring the construction of improvements prior to recording, however, should not be looked upon as guaranteeing a healthy subdivision. It is also important that standards of design and construction be established for the improvements. FHA has established such standards for its subdivisions, but it cannot be said that these are always satisfactory or as high as a city might wish. For example, FHA permits a roll curb and gutter with a 4 1/2 foot sidewalk adjacent to the curb. This type of construction has found disfavor in many communities, particularly in the north where it has been found impractical because of the impossibility of plowing snow from the streets without plowing it onto the sidewalks. The National Committee for Traffic Safety also, in its pamphlet "Building Traffic Safety into Residential Developments," strongly recommends that a sidewalk should never be placed adjacent to a rolled curb, that a sidewalk should be set back from the curb at least three feet, and preferably seven feet. Likewise, FHA has approved subdivisions without sidewalks in developments where the density is high, and where children have no other place for velocipedes and similar wheel toys except in the streets. It should also be remembered that it is not necessary to have any subdivision approved by FHA. It is possible to finance housing without an FHA insured mortgage. Any community that wishes to assure itself of modern standards in all its subdivisions must establish its own regulations.

Still another aspect of physical improvements in new subdivisions is that of adequate and competent inspection. This is a matter that cannot be left to chance or to the Federal Housing Administration or, frequently, even to the normal operations of a city or county engineer's office. In most cities it will be found that the public engineer's office is understaffed. If there is any considerable amount of subdivision development taking place, the engineering staff is so busy during construction season that it is unable to give the inspection to the new improvements that it should. The purchasers of "improved" lots may find after only a few years that they are faced with the replacement of a street that has gone to pieces because there was insufficient inspection during the original construction.

This PLANNING ADVISORY SERVICE report makes no attempt to study standards set up by the various subdivision regulations. These standards are principally a matter of engineering design, and are in a constant state of evolution. On the whole, standards that were satisfactory ten years ago are likely to be inadequate today. It should be noted in passing, however, that there is ample justification for higher standards in new subdivisions than obtain in the average construction of improvements in most cities. This is based on this same idea of the constant evolution of construction methods in engineering design. If it were possible to rebuild all of the improvements of any city, they would be rebuilt to higher standards than were used in their original construction. Any additions to the city's physical plant should be constructed to the most recent standards.

Some fifteen years ago, a comprehensive survey of subdivision regulations in the United States was made, and the results were published in a book which remains the main source of information on the subject. In Harold W. Lautner's Subdivision Regulations — An Analysis of Land Subdivision Control Practices* 284 regulations were analyzed to determine their content and the frequency of the various provisions. This study — which unfortunately is out of print — is a statistical survey, and lends itself to generalizations about the current practices in cities regarding newly-platted lands.

For this PLANNING ADVISORY SERVICE Information Report on improvement installations, some 200 communities in the population range of 10,000 to 1,000,000 and over, whose regulations had been adopted or amended in 1940 or later, were examined. The number of regulations analyzed in detail was 97, and the results of this analysis are shown in both qualitative and quantitative form.

The qualitative analysis consists of actual provisions selected to show the current practice and typical wording in subdivision regulations requiring improvements. Only those practices that are directly involved in the process of transforming raw land into usable lots are described. They include street and roadway improvements, sanitary sewers, and facilities, water supply, sidewalks, and street trees.

The quantitative analysis consists of a tabulation of all improvements (with the exception of monuments) generally required and their incidence in the 97 communities. Although not a statistical enumeration, this tabulation may be used as a source of information as to which communities possess comprehensive improvement requirements. The final section of this bulletin discusses the prevalent methods of enforcing the installation of required improvements.

Street and Roadway Improvements

Two fundamental aspects of improvement requirements in subdivision regulations are (1) that the improvements be installed, and (2) that they be installed in a certain way and in accordance with certain specifications. The requirements of the second aspect — how it shall be done — are particularly varied in the case of street improvements. Traffic ways may be only graded, or they may be surfaced or paved, and furnished with curbs, gutters, and drainage structures. Grading is an unconditional requirement and may be required singly or in combination with any one or several of the other improvements. Further, the description of requirements for each of these improvements may encompass a great variety of specifications. The number of possible combinations of requirements for street and roadway improvements is therefore very great. The examples presented here are chosen because they are considered to be both typical and, within each category, fairly comprehensive.

An unusually concise and inclusive statement on street improvements is contained in the Manitowoc, Wisconsin, ordinance:

"Streets shall be graded to full width and fully constructed with sidewalks, permanent curbs and a type of roadway approved by the City Engineer, or other proper city officials, and in accordance with city specifications.'' (IV a)

The regulations for Palo Alto and Redwood City, California, contain similar wording, but approval rests in part with the planning commission:

"Streets and Highways. All streets and highways shall be graded, rocked, and surfaced to widths and grades approved by the City Engineer, and Planning Commission. The subdivider shall improve the extension of all subdivision streets, highways, or public ways to the interception paving line of any County road, City Street, or State Highway.

Curbs and Gutters. Curbs and gutters shall be installed to grades and design approved by the City Engineer." (Taken from Redwood City Ordinance, 6.21 and 6.23.)

As indicated above, many cities do not require installation of all types of improvements. The following are selected as illustrations of the combinations of improvements often required.

Grading, Surfacing, Storm Sewers or Drainage

1. "Streets shall be graded to full width, in accordance with Section D of the Appendix, [this reference contains standards] and fully constructed with gravel or stone surface as approved by the City Engineer. This work shall include storm sewers sufficient to serve the area being platted." (Midland, Michigan, V.3.)
2. "Streets shall be graded to full width and fully constructed with a type of roadway and sidewalks approved by the City Engineer and in accordance with his specifications. A serviceable and properly drained roadway surface, and sidewalks on at least one side of the street, shall be provided in every case." (South Charleston, West Virginia, VIII.1.)
3. "Street Grading. The streets and other open ways shall be brought to a grade as shown on the plans and profiles approved by the Director of Public Works. All watercourses crossed by a street or other open way shall be provided with permanent culverts of adequate size as approved by the Director of Public Works and so constructed that the entire width of the street or other open space shall be available at the top of the hill."
4. "Street Surfacing. The Commission may require that not less than fifty ( 50) per cent, by lineal feet, of the streets within the subdivision be surfaced to the established grade with not less than six (6) inches of compacted depth of approved road gravel or other equally suitable material approved by the Director of Public Works, and to a minimum width of not less than nine (9) feet on each side of the center line of the street. . . ." (Flint, Michigan, p. 6.)
5. "All streets shall be graded and the roadway improved by surfacing in a manner satisfactory to the City Engineer. . . . Roadway improvements, drainage and surfacing shall be in accordance with the City or County of Greenville standard specifications. In order to avoid steep banks, grading for roads shall be carried on to lots fronting thereon to produce a pleasing natural effect." (Greenville, South Carolina, 17.16.a.)

Grading, Paving and Drainage

". . . all subdivisions within the city limits shall have culverts or other storm drains installed as required and streets graded by the owner or subdivider to the full width of the right-of-way except where a lesser width is approved by the City Council. All grading and drainage improvements shall be done to plans and specifications inspected and approved by the Department of Public Works. . . . Street paving or other improvements to be installed within proposed public rights-of-way and all storm drains regardless of location, shall be subject to prior approval of the Department of Public Works." (Greensboro, North Carolina, 37.6.1.)

Grading, Surfacing, Curbs and Gutters

"1. Grade and surface the streets.

4. Construct sidewalks, curbs, and gutters."

(Oceanside, California, 7.1.4.)

Grading, Surfacing, (Sidewalks)

"All streets must be graded, the roadway improved by surfacing, and sidewalks installed. Roadway surfacing and sidewalk construction shall be in accordance with standard specifications of the City of New Orleans. . . . The type of surfacing shall be determined by the City Engineer." (New Orleans, Louisiana, 5.b.)

Street Improvement Requirements as Related to Type of Street

The growing recognition that the construction demands and safety needs of streets vary with the type of neighborhood in which the street is located and the amount and type of traffic it carries, has led to a corresponding schedule of requirements. The Housing and Home Finance Agency's Suggested Land Subdivision Regulations** classifies residential developments according to the following types:

1. Apartment, row house, and similar multi-family residential types.
2. One-family, detached dwelling, with typical lot widths of a certain specified number of feet or less.
3. Country homes with typical lot widths greater than "b" above.
4. Commercial, industrial and other types.

Each of these types of residential developments has its own set of standards for improvements. Further, traffic ways are broken down into:

1. Arterial streets.
2. Collector streets.
3. Minor streets.
4. Marginal access streets.
5. Streets along development boundaries, and streets connecting development with existing improved street system.
6. Alleys.

For collector, minor and marginal access streets, dimensional standards are specified for the width of right-of-way, width of pavement and width of sidewalk. (Arterial streets and connecting streets must conform to general city plans and engineering standards.) Although the details of the following standards depend upon type of development, definite dimensions and materials in each case are specified for: curb and gutter; pavement base (gravel, crushed stone or cement concrete); wearing surface (asphaltic concrete or double bituminous surface); and pavement. In other words, construction requirements are related to type of street and type of development.

A number of communities have incorporated similar classifications in their subdivision regulations. Usually, however, the classification of street types and the standards for right-of-way and pavement widths, etc., are contained in the section of the regulations which deals with design requirements. Typical of such design standards is the set of regulations for Racine, Wisconsin, which specifies that:

"The minimum width of right-of-way for the various types of streets as designated by the Master Plan of Thoroughfares shall be as follows:

1. Major streets as shown on the Master Plan.
2. Secondary main thoroughfares — 80 feet
3. Neighborhood residential streets — 60 feet.
4. Minor residential streets — 50 feet.

The apportioning of the street between roadway, sidewalks, and possible grass strips shall be in accordance with standards as promulgated by the Commission." (B.12.)

Likewise the Village of Indian Hill, Ohio, under a section entitled "General Principles of Design and the Minimum Requirements for the Layout of Subdivisions," specifies minimum widths of pavement for principal village roads, secondary village roads, local service streets, and service drives. The clause in the improvement section then merely requires that "streets shall be graded to full width and improved with a type of pavement . . . as required by the standards and specifications of the Village." (6.1.)

The Tiffin, Ohio, subdivision code under "Improvements" states that "the minimum widths of pavement required shall be as follows:

County roads — 20'

Primary streets — 40'

Secondary streets — 30'

Minor streets — 26' (II. C.1.b.)

Sanitary Sewers and Facilities***

The requirements for the installation of sanitary sewage structures are usually related to location of the areas being subdivided with respect to the municipal system. In highly urbanized areas where the population density necessitates an extensive public sewage disposal system, the sewage disposal clause may simply require the provision of sanitary sewer facilities and connections. Or, if the subdivided area is in a part of the country not supplied by tapping of ground water so that there is no danger of contamination of water supply., the requirements for sewage disposal in lieu of connections to public systems may be less strict. Soil and natural drainage conditions also affect the extent to which requirements are made elaborate.

In regulations for urban areas whose requirements concerning sewage disposal are minimal, i.e., those which simply require connection with public systems, the wording and conditions are similar enough to be fairly standardized. Typical of these is the Davenport, Iowa, ordinance:

"Where a public sanitary sewer is reasonably accessible, the subdivider shall connect or provide for the connection with such sanitary sewer, and shall provide within the subdivision the sanitary sewer system required to make the sewer accessible to each lot in his subdivision. Sewer systems shall be approved by either the Superintendent of Construction and the Board of Health of the city of Davenport or the Township Board of Health, depending upon whether or not the subdivision is located within the corporate limits of Davenport." (IV.I.3(a).)

Even more brief is the sewer clause in the ordinance of Palo Alto California.

"Sanitary sewer facilities connecting with the existing City sewer system shall be installed to serve each lot and to grades and sizes approved by the City Engineer. No septic tank or cess pools will be permitted . . . ." (6.25.)

Similar statements are found in numerous regulations, among them those for Waterloo, Iowa; Santa Monica, California; and Redwood City, California.

Many regulations offer an alternative in case public mains are not reasonably accessible. A typical statement is the following taken from the Ft. Thomas, Kentucky, regulations.

"Wherever, in the opinion of the City Engineer, there is within a reasonable distance sanitary sewer trunks or storm drains, the subdivision shall be provided with a complete sewerage system which shall connect with such mains. Where connections with existing mains cannot reasonably be made, the disposal of sanitary waste by approved methods shall be provided." (IV (b) 3.)

Similar general wording such as this may be seen in the regulations for Riverside, California: Flint, Michigan; University City, Missouri; Mason City, Iowa; and Manitowoc, Wisconsin.

Where the situation is complicated by public facilities which are limited in geographical extent there are three different types of relationships which the new subdivision may bear to the existing sanitary sewer system. These relationships, together with the action to be taken in each case, are outlined in the regulations of Stamford, Connecticut.

"1. Where a public sanitary sewer main is reasonably accessible, the subdivider shall connect with each sanitary sewer and provide mains reasonably accessible to each lot.

2. Where a public sanitary sewer main is not reasonably accessible, proper provision shall be made for the disposal of sanitary sewage by a method to be approved by the Health Department.

3. Where a public sanitary sewer main is not reasonably accessible, but where the plans for the sanitary sewer system of the district in which the subdivision is located, have been prepared by the City Engineer and funds appropriated for construction the subdivider shall install sewers in conformity with such plans, although a connection with an existing main may not be immediately practicable. In such cases, and until such connection is made with the sewer system of the district, the subdivider shall provide for the disposal of sanitary sewage by a method to be approved by the Health Department." (VI.B)

In the regulations for Hamilton County, Ohio, more elaborate instructions and specifications are set forth for the same possible situations. In this case, square foot and front footage minimums are established for unsewered lots. If the acreage is located outside the "Metropolitan Areas for Sewage Service" as proposed by the Cincinnati Department of Public Works, each lot must have an area of 20,000 square feet and an average width of at least 100 feet. If the new subdivision is within the Metropolitan Areas for Sewage Service, each lot is to be provided with access to a public sanitary sewer, except as follows:

"(1) Where, in the opinion of the County Engineer, a public sanitary sewer is not reasonably accessible, but where plans have been prepared for the sanitary sewer system of the district, the subdivider may choose one of the following alternatives:

1. Install permanent sewers in conformity with such plans, even though a connection with an existing main is not immediately practicable, and provide for the interim disposal of sanitary sewage in a manner approved by County Engineer and County Health Commissioner, either by means of:

aa. Group disposal plant, the maintenance cost to be assessed by the County Auditor against each property benefited, or

bb. Individual septic tanks, provided every lot has an area of at least 10,000 square feet, and a width of at least 60 feet at the building line.

2. Omit installation of permanent sewers, and install a group disposal plant or individual septic tanks, provided that every lot has an area of at least 20,000 square feet and an average width of at least 100 feet.

(2) Where plans have not been prepared for a sanitary sewer system of the district, a plat will be disapproved unless every lot has an area of at least 20,000 square feet and an average width of at least 100 feet. The County Engineer will specify either:

(a) Installation of a group disposal plant by the developer, the maintenance cost to be assessed by the County Auditor against each property benefited, or

(b) Installation of individual septic tanks.

In the case of individual septic tanks, a greater area and frontage may be required by the Planning Commission if, in the opinion of the County Engineer or County Health Commissioner, soil, topography, or other conditions indicate the necessity therefor." (C.7)

Regulations for Baltimore County, Maryland, and Oklahoma City, Oklahoma, are almost identical with those of Hamilton County. Both of the latter regulations contain an "exception clause" for subdivisions outside the district whose lots contain the 20,000 minimum number of square feet. The more explicit Baltimore County proviso reads:

"Regardless of size, however, a plat so located will be disapproved by the Planning Commission if in the opinion of the County Health Officer or the State Department of Health there are factors inherent in drainage, soil character, or other conditions that would tend to produce public health problems in connection with permanently unsewered occupancy." (I.C.5.a)

At the other extreme of minimum size requirements for unsewered lots are the regulations for Lexington and Fayette County, Kentucky. Here the average size of lot shall be 8,000 square feet or more in area in order to receive approval for individual sewage disposal systems: lots less than 9,000 square feet shall be serviced by a community sewage disposal plant which meets the approval of the officials having jurisdiction. In these regulations, however, lots in the class of 9,000 or more square feet, to qualify for individual systems, must also be inspected for soil conditions and percolation characteristics. Minimum lot width is 60 feet.

Similar to the Lexington standards are the regulations for Greenville, South Carolina. Lots remaining permanently unsewered shall contain an average area of more than 10,000 square feet, and a minimum width of 100 feet. For lots in areas awaiting public sewage disposal service, the regulations also provide that ". . . until such connection is made with the sewer system of the district, the use of Imhoff or Septic tanks and absorption tile or other approved method of disposal will be permitted to dispose of the sewage provided that such disposal facilities are constructed in accordance with plans and specifications approved by the City and County Health Departments." (17.16(d)2)

Water Supply

The provision of water to newly platted lands is of unquestioned necessity to habitability. Although historically, the supply of water for domestic purposes has been the chief concern, the fact that water mains also must be large enough to accommodate flow for fire hydrants has led to the practice of providing for both needs in the same clause. The nature and extent of provisions dealing with water supply facilities, like those dealing with sewage disposal, depend upon the proximity to public sources.

A frequent requirement is simply that "adequate domestic water supply be furnished." (Santa Monica, California, Section 9307 C.) Actually, what subdivision requirements are concerned with is that the installation of mains, etc., be such that adequate supply is assured. Thus, the Pasadena, California, ordinance, (Section 6.10) specifies that a "water system with mains of sufficient size and having a sufficient number of outlets to furnish adequate domestic water supply for each lot of the subdivision and to provide adequate fire protection to meet local neighborhood needs" be provided in each subdivision. In areas of the country not served exclusively by public water supply, allowance is made for the two sets of conditions., as exemplified in the Oklahoma City regulations.

"Water Lines:

1. Where an approved public water supply is reasonably accessible or procurable, the subdivider shall connect with such water supply and make it available for each lot within the subdivided area. All such construction must conform to the standard specifications of the City of Oklahoma City and must be approved by the City Water Department. Fire hydrants shall also be installed by the subdivider in accordance with the requirements acceptable to the Fire Underwriters.
2. Pending availability of a public water supply, the subdivider shall construct wells or a private water supply system in such a manner that an adequate supply of potable water will be available to every lot within the subdivision. The information furnished and the approval of same shall comply with the requirements of the State Board of Health. The water supply system shall be constructed in accordance with City specifications and under the supervision of the City Water Department, and the plat shall not be recorded until the regulations of the State Board of Health are complied with." (V.11.e.)

Very similar requirements are set forth in the regulations for New Orleans, Louisiana, and Wichita, Kansas.

The subdivision ordinance of Palo Alto, California, includes connection for gas supply. It states that "water mains, water hydrants and gas mains connecting to the City systems shall be installed as required by the City Engineer." (Section 6.26)

An unusual contingency clause is included in the Redwood City, California, regulations to allow for future development.

"Adequate water supply and distribution system, water mains and fire hydrants connecting to the water system serving the City of Redwood City shall be installed by the subdivider, subject to approval of the City Engineer. Where further development appears probable beyond the proposed subdivision, the subdivider may be required to install larger water mains to handle such additional development." (6.26)

In many jurisdictions, detailed standards for public water supply installation are omitted, because it is assumed that a municipal water department will make the installation. The municipal water department will, of course, make the installation according to the current standards prevailing in the city.

Sidewalks

In the past, the determination of whether or not sidewalks should be required in new subdivisions has rested on the tradition in the particular city regarding sidewalks and the nearness of newly-platted lands to the built-up, sidewalk- furnished areas. In the case of the current Flint, Michigan, regulations, for example, adjacency to areas already having sidewalks is the sole objective determinant.

"Whenever a proposed subdivision lies adjacent to or between other subdivisions which have been provided with sidewalks, the Commission may require connecting sidewalks, to be constructed in accordance with City of Flint specifications, on one or both sides of the streets which are the extensions of the streets having the aforementioned sidewalks." (p. 6)

Lautner, writing in 1938–1939, cites the regulations of Pontiac, Michigan; Englewood, New Jersey; and Scranton, Pennsylvania, as having similar provisions.

Cities whose policy holds that all residential property should be made properly accessible by foot require that sidewalks be installed in all new areas. Thus, the Palo Alto, California, ordinance simply requires that: "Sidewalks shall be installed to locations and grades approved by the City Engineer." (6.24) Similar statements are contained in the regulations for Port Huron, Michigan, and Redlands, California. To this type of statement an exception clause may be added to provide for difficult topographical conditions as exemplified in the Redwood City, California, regulations.

Previously the main justification for requiring sidewalks has been conformity to the existing patterns or a belief in the desirability of sidewalks per se. Although frequently the sidewalk section of improvement requirements contain a discretionary clause, there was no clear standard on which to base the exercise of discretion. Because of the fact that sidewalks provide safety as well as convenience and neatness, the current tendency is for subdivision regulations to require sidewalks in areas in which a certain density of population is anticipated. Thus, there is emerging a recognition of the relationship between sidewalks and public safety.

Because the requirement of sidewalks for reasons of safety is a relatively new trend****, these examples are chosen to illustrate the various ways in which this requirement is handled and the several standards used.

Families Per Acre

"Sidewalks of concrete shall be provided in developments designed to provide for a density in excess of five families per acre exclusive of streets." (Stamford, Connecticut, VI.A.6.)

Width of Lot

"Sidewalks of such width and type of construction as required by the City Engineer shall be constructed on both sides of every street where lots are of a width of 60 feet or less. Sidewalks shall be constructed on one or both sides of the street, irrespective of the width of lot, where, in the opinion of the Planning Commission these are necessary to safeguard the safety of pedestrians. Where plats are designed with interior walkways, walks shall be fully constructed to adequately serve the area being platted." (Midland, Michigan, V.4.)

A similar statement is contained in the subdivision regulations for Lexington and Fayette County, Kentucky.

"2) Sidewalks shall be provided on all streets where lots are less than ten thousand (10,000) square feet in area, and have a minimum width of seventy-five (75) feet. All sidewalks shall be constructed in accordance with the standard specifications of the city of Greenville. (Greenville, South Carolina, 17.16.b.)

"3) For the safety of pedestrians and of children at play, installation by the developer of sidewalks on both sides of street will normally be required. Where, for a considerable distance., one side abuts on a railroad, park, golf course, or other type of use which does not require a sidewalk and where continuity is not essential, the Commission may waive requirements of a walk for that side of the street. In a subdivision having no lots with less than 100-foot frontage (except in pie-shaped lots fronting on the end of a cul de sac or on a sharp curve) and where conditions are such as to eliminate or discourage non-local traffic and street parking, the Commission may waive the requirement of sidewalks on one or both sides." (Baltimore County, Maryland, I.C.Z.a.)

Street Trees

Major concerns in the requirements for planting of street trees are that they be of a hardy, appropriate species, that they be planted at proper intervals and locations, and that they be in harmony with existing landscaping plans for the city as a whole. In some cases, tree planting, along with the other less decorative improvements, is a requirement for final plat approval. In other cases, tree planting is recommended, and if undertaken, must be done according to certain standards. Because of the variation in the wording of these subsections, and because of the variety of city officials involved, a number of examples are cited.

Tree Planting Required

1. "The subdivider shall plant trees on the parkings in all streets in new subdivisions whenever there are no existing woodlands. Before the trees are planted, a plan showing their proposed location and species shall be submitted to the Planning Commission for study and recommendation, and the Commission may prevent the planting of certain species that are subject to pests or disease or which might eventually tend to become nuisances because of their roots growing in sewers, water mains, and in other similar utilities." (Mason City, Iowa, 35.)
2. "Street trees not less than one on each lot or more than 50 feet apart, shall be required unless exempted by the Planning Commission. They shall be of a type recommended by the Park Department, and approved by the City Engineer and planted in locations approved by them." (Redwood City, California, 6.27.)
3. "Street trees. Street trees shall be planted in conformance with a plan approved by the Commission on all streets of more than fifty feet in width." (Saginaw, Michigan, 4-2.)
4. "Street trees. Approved street trees shall be provided by the subdivider and planted by the city." (Palo Alto, California, 6.27.)
5. "Street trees shall be of approved species, and their location approved by the Department of Public Works." (White Plains, New York, 7.10)
6. "Tree Planting. Whenever the Commission deems it desirable in order to insure continuity of purpose, street trees shall be planted in conformance with a planting plan approved by the Commission, ordinances of the City of Flint, and the regulations of the Recreation and Park Board governing the same." (Flint, Michigan, p. 7.)

Enforcement

It is a very common practice for subdivision regulations to require the completion of improvement construction, or a financial guarantee in lieu thereof, before final plat approval. Official approval of final plat is the last step before the plats are recorded. A developer is forbidden by law to sell from an unrecorded plat., and therefore, the stage of final plat approval is the point of enforcement of improvement requirements. Certain practical considerations., however, have made the performance bond or other financial guarantee an almost equally universal substitute for prior installation of improvements. Among these considerations is the fact that the developer is not certain that his final plan will be completely satisfactory to the planning commission, even if the tentative plat has previously been approved. The other side of this situation is that the approving body must either accept the completed improvements for better or worse, or reject them at loss to the subdivider.

The temporary substitution or a financial guarantee is not a completely satisfactory solution, and subdivision history is not without examples of unenforced performance bonds. Bonding companies have gone out of business, or they have claimed failure on the part of the municipality, either in supervision or inspection. As a result, enforcement clauses have become increasingly more stringent in their requirements. Although many regulations simply require installation of improvements or the furnishing or a surety performance bond or certified check sufficient to cover the cost of the improvements which must be installed, the more watertight provisions are both complete and specific in their statement of the conditions surrounding the acceptability of a financial guarantee.

Financial guarantees in lieu of actual installation of improvements may be one or a combination of the following types:

(1) performance or surety bond

(2) cash deposit, certified check, or negotiable bonds

(3) special assessment

Legal restrictions concerning the bond (or other financial guaranty) may be in the nature of value of bond, length of term, approval of bonding company, and penalty in case of failure to complete installation of improvements.

Performance or Surety Bond

1. Value of Bond

1. "All physical improvements required . . . shall be installed . . . at the expense of the subdivider and pending such actual installation thereof the subdivider shall execute and file with the City Clerk, prior to approval of final plat, an agreement or bond (or agreements and bonds) in amount determined by the agent and the City Engineer equal to the approximate total cost of such improvements. . . ." (Roanoke, Virginia, X.C. Italics furnished.)
2. "The Commission will consider approval of the final plant for record only . . . after there shall have been filed with the City Clerk one of the following: . . . A duly completed and executed surety bond, . . . in an amount and with surety satisfactory to the City Commission. . . ." (Flint, Michigan, p. 7. Italics furnished.)
3. "To assure that the work specified in said agreement will be completed, two surety bonds must be furnished, one guaranteeing the faithful performance of the work in a sum equal to the cost as estimated by the City Engineer and the Superintendent of Streets, and the other guaranteeing the security of material-men and laborers, in the amount of fifty (50) percent of the estimated cost. . . ." (Santa Monica, California, 93071. Italics furnished.)

2. Length of Term

1. "Such performance bond shall run for a term to be fixed by the Planning Board but in no case for a longer term than three (3) years; provided however, that the term of such performance bond may be extended by the Planning Board with consent of the parties thereto." (Brookhaven, New York, 9.6.)
2. "Post a surety bond with the City of Davenport or with the Board of Supervisors of Scott County, depending upon the location of the subdivision, which bond will insure to the City or County that the improvements will be completed by the subdivider within two years after final approval of the plan." (Davenport, Iowa, IV. I (a).)
3. "In lieu of final completion of such improvements the subdivider shall file with the Commission a surety bond to secure to the City of Greenville actual construction of such improvements . . . within a period specified by the Commission but such period shall not exceed twelve (12) months, provided, however, that under extraordinary circumstances or conditions this period may be extended by the Commission for not more than twelve (12) months." (Greenville, South Carolina, 17.16.)

3. Approval of Bonding Company

1. "The bond shall be executed by the applicant as principal and a surety company authorized to do business in the Commonwealth of Massachusetts." (Medford, Massachusetts, 4.c.)
2. "Except where a cash deposit is required by the City Council, the bond may be furnished by a surety company approved by the City Council." (Santa Paula, California, 15.E.)

Cash Deposit, Certified Check or Negotiable Bond

1. "In lieu of the faithful performance bond above specified a deposit may be made, either with the City Controller or a responsible escrow agent or trust company, subject to the approval of the Board of Directors, or money or negotiable bonds in the same amount of the kind approved by the provision of law for securing deposits of public money in banks. If a cash deposit is made., the agreement may provide that progress payments may be made to the contractor or the subdivider out of the deposit as the work progresses." (Pasadena, California, 6.50.)
2. "A certified check, in an amount to be determined by the City Commission, drawn on an approved bank and available to the City and adequate for the completion of these improvements, utilities, and facilities." (Flint, Michigan, p. 7.)
3. "In lieu of said bond the subdivider may deposit with the City Treasurer or recognized Title Company cash money in an amount fixed as aforesaid by the City Engineer. Said cash monies to be released only on written instructions of the City Manager of Redwood City." (Redwood City, California, 6.42.)

Special Assessment

1. "In lieu of the actual installation of . . . improvements prior to the approval of the final plat, the City Council may accept an assessment petition, approved by the Board of Local Improvements, whereby the City is put in assured position to make these improvements and install these utilities and facilities at any time and without cost to the City." (Kankakee, Illinois, IV.I.(3).)
2. As one of three alternatives, the subdivider may enter into a contract with the City of Stockton, ". . . secured by a faithful performance bond approved by the City Manager in an amount not exceeding fifty (50%) per cent of the estimated cost of the work . . . for the construction and completion of the improvements under an appropriate special assessment act by the formation of a special assessment district covering said subdivision or part thereof." (Stockton, California, 7(A)(3)(c).)
3. As one of three alternatives:

"When the subdivision is located within the City of Davenport, to petition the City Council to provide the necessary improvements and to assess the cost thereof against the subdivided property in accordance with the local requirements regarding special assessments. Provided, however, that the subdivider shall be responsible for any differences between the cost of the improvements and the amount that can be legally assessed by the City against the subdivided property and shall furnish the necessary waivers to permit the assessment of the entire cost of the improvement." (Davenport, Iowa, I(b).)

Penalty in Case of Failure to Complete Installation of Improvements

1. "Upon the approval by the City Council of the final map the subdivider shall execute and file an agreement between himself and the City specifying the period within which he shall complete all improvement work to the satisfaction of the City Engineer and providing that if he shall fail to complete such work within such period the City may complete the same and recover full cost and expense thereof from the subdivider."

The subdivider, to assure his performance of improvements, shall file with the aforesaid agreement, a bond. "In the event the subdivider shall in any case fail so to complete all improvement work and the City shall have completed the same the City, in order to reimburse itself for the cost and expense thereof, may appropriate the deposit, of cash money or negotiable bonds which the subdivider may have deposited in lieu of a surety bond." (Long Beach, California, 12.11 and 12.)

2. "If the improvements are not completed within the specified time, the City Council or the County Board of Supervisors may use the bond or any necessary portion thereof to complete same." (Davenport, Iowa, IV.I(b).)

Fees for Inspection or Installed Improvements

Practically speaking, inspection is a part of the process of enforcement of improvement installation. If the improvement does not come up to standards, the results are something less than were required in the subdivision regulations. Although it is universally understood that public improvements shall be open to inspection by public officials, adequate inspection may not be possible if the staff or budget for such purposes is small. Therefore, a few communities have demanded a fee for the inspection of improvement installations.

1. "The developer shall pay to the City or County a reasonable fee, as may be prescribed by the engineering departments thereof, to defray the cost of inspection and whatever engineering services may be involved in the installation of the improvements." (Tiffin, Ohio, II.6.b.)
2. "The agreement [to complete improvements] shall also provide for checking of improvement plans and inspection of all improvements by the City Engineer and reimbursement of the City for the cost of such checking and inspection." (Palo Alto, California, 6.40.)

Progressive Installations

One of the devices for ensuring the completion of improvements on the one hand, and for reducing the risk to the subdivider on the other, is to permit the improvement of limited portions of the subdivision at one time with a corresponding reduction in the amount of the financial guarantee. Examples of ways in which the process may be accomplished are given below:

1. "Instead of requiring a bond, the Board may approve a Plat on condition that no lot in the subdivision shall be sold until the improvements specified in the application or ordered by the Board are constructed and installed so as to adequately serve such lot. Upon the completion, to the satisfaction of the Board, of the required improvements necessary to adequately serve all platted lots, or, if so requested by the subdivider, any group of six or more lots, the Board will execute and deliver to the subdivider a Release of Restrictions and thereafter the restrictions relating to the lots listed therein shall terminate." (Medford, Massachusetts, 4.c.)
2. "The owner of a tract may prepare and secure tentative approval of a final subdivision plat of the entire area and may install the . . . improvements only in a portion of such area, but the improvements must be installed in any portion of the area for which a final plan is approved for recording and the owner may sell or lease or offer for sale or lease lots only in the improved portion of said property." (Greenville, South Carolina, 17.16.)
3. "The owner of the tract shall prepare and secure tentative approval of a final subdivision plat of the entire area and may install the . . . improvements only in a portion of such area, but the improvements must be installed in any portion of the area for which a final plat is approved for recording, or a bond actually posted, and the owner may sell or lease or offer for sale or lease lots only in the approved portion of said property; provided, however, that trunk sewers and sewage treatment shall be designed and built to serve the entire area or designed and built in such a manner that they can be easily expanded, or extended, as the case may be, to serve the entire area," (Wichita, Kansas, 15.)
4. "Reduction in Bond or Deposit on Portion Completed. When any portion of an improvement has actually been fully completed the officer whose duty it is to inspect such improvement may in his discretion authorize from time to time a reduction in the bonds or a partial withdrawal of funds, which bonds or funds were deposited in lieu of a faithful performance bond . . . equal to the estimated cost of such completed portion. This section does not authorize a reduction or withdrawal for partial completion of any or all of any such improvement." (Azusa, California, 25.H.)

Wording of the Ordinance

A not uncommon error in the wording of subdivision regulations lies in the confusion between design standards and improvement requirements, or between final plat requirements and things to be done on the land before the final plat is approved. Sometimes the confusion arises because improvement requirements have been placed in a main section entitled "General Requirements for the Subdivision of Land." In such a case, required improvements may be enumerated along with standards. As an example, such a compilation may say that "block lengths shall not exceed 1,500 feet," and in the next sentence, "curbs and sidewalks must be installed in accordance with standard specifications." In the first case, an abstract requirement is stated; in the second, the command is made that a specific action be taken involving movement of soil and application of poured concrete. In this example there would be no difficulty in enforcement because the wording within each requirement is clear and definite even though the two have not been distinguished in the text.

The next stage in confusion — and one which may lead to inability to enforce the relevant part of the ordinance — is illustrated by an ordinance which requires, for example, that the subdivider "indicate a connection with the public water supply or sewerage system." Although the intent of the ordinance is probably to require the installation of these connections, it is obvious that an indication is nothing more than lines drawn on a plat.

Still a third example of confused classification and wording is where improvement requirements are included in a section entitled "Preliminary and Final Plats Must Also Show the Following." Under this major division is a requirement that water mains and supply services shall be installed in accordance with the city regulations. Here the intent is clearly to require the actual installation. But because the requirement is placed under a heading concerned with plat requirements, a question of enforceability may be raised.

The most common method of setting forth improvement requirements is to enumerate them under a section entitled "Improvements." When the requirements for improvements are thus separated from design requirements, there exists no possibility for confusion of intent or interpretation. Further, the improvement requirements are clearly labelled and easily referred to by the subdivider. A most unambiguous wording is used in the Platting Laws for King County, Washington, where required improvements are listed under a minor heading called "Work on the Ground." Here there can be no doubt that the action to be taken involves a direct transformation of raw land into usable lots.

Endnotes

*Published by the Public Administration Service, Chicago, in 1941. Data were collected by the author in the summer of 1938.

**Government Printing Office, Washington, D.C. February, 1952, 45¢.

***The reader is referred to PLANNING ADVISORY SERVICE Information Report No. 37, Minimum Requirements for Lot and Building Size, for a discussion of the size of lots as related to sanitary standards and local soil characteristics.

**** There are no regulations cited by Lautner wherein sidewalks are related to density.

IMPROVEMENT REQUIREMENTS IN SELECTED SUBDIVISION REGULATIONS ADOPTED OR AMENDED IN 1940 OR LATER¹

Copyright, American Society of Planning Officials, May, 1952.