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Quality design is an essential ingredient in successful smart growth. Today it is abundantly clear that neglect of quality design in the recent past has undermined many of the planning objectives we hold dear. Yet community design considerations continue to meet with considerable indifference, if not outright hostility, in many quarters, in part because the value added provided by community design is poorly understood, but also as a result of profound misgiving regarding the status of community design vis-á-vis the legal framework. In this section we attempt to shed light on the latter issue.
No single person or agency has absolute control over community design. In virtually every circumstance, there is a sharing of authority and discretion. Our built environment is, generally speaking, the product of a complex set of design influences and interactions. Many of its design elements are subject to standards, which are often applied without full consideration for their contribution (or lack thereof) to the whole. For example, it is not uncommon to see an otherwise handsome and well-proportioned project spoiled by a visually obtrusive and functionally unnecessary traffic engineering solution imposed by the county or municipal engineer, who is driven to conservatism by an unfounded fear of liability. Similarly, a perfect streetscape can be marred by an army of highly visible utility boxes, which the utility company insists on locating in the front yards so they are most easily accessible to its workers for maintenance and repairs. Public engineering departments and public utilities are among the many, many entities that have the ability to influence the design of a particular aspect of the built environment and indeed, to hold a real estate development project hostage if their demands are not satisfied.
So who actually has final say over design? Is it the project architect, the planner, the engineer, the real estate developer, the municipal agencies, the vocal public, the state agencies, the project lender, the future tenants, the insurance carrier or others? When a new real estate development or redevelopment project is unveiled, there may be conflicting verdicts about the quality of its design. Given the complex patchwork of jurisdictions and influences in New Jersey, in order to understand who is responsible for a particular aspect of its design one has to understand the different layers of authority over project design, and how far they extend. This is often unclear, even to professionals in the field. The reality is that most of these entities will have some influence over project design. The developer, project designer and local reviewing agency will have a great deal of influence over project design as a whole, while other entities — such as the traffic engineers or utility companies — will exert influence over more specialized aspects of the project.
While all development projects are subject to multiple layers of regulations potentially affecting design, the developer and his or her designers have the ability to shape the discretionary — i.e. non-regulated — aspects of the project. Given the general lack of sophistication on the part of most public agencies when it comes to design, the level of discretion given to the project developer can be considerable. The ability of the public sector to control the design aspects of real estate development is determined by the applicable legal framework, tempered by political and ideological considerations. Many municipalities are uninformed about their authority to control the community design aspects of private development. Many municipal officials, planners, developers and even attorneys are under the mistaken impression that community design controls are not authorized in New Jersey, outside of designated historic districts or other specialized jurisdictions. Nothing could be further from the truth.
In part, this misunderstanding has its origins in a question of semantics. To many, "design" is equated with "aesthetics", and is somewhere between the superfluous and the outright frivolous. Design as aesthetics is viewed as a dangerously subjective and potentially expensive activity, which public agencies ought not to be involved with. It is seen as a matter of individual taste, without appreciable consequences for the community at large.
Most legal commentary on NJ land use law subsumes design within aesthetics. For example, the 2003 edition of the authoritative New Jersey Zoning and Land Use Administration — while referencing the applicable NJ case law dealing with questions of aesthetics — ignores the term design, which does not even appear in the otherwise rather exhaustive index. There is however a considerable body of commentary and other case law relevant to community design in this same publication under other rubrics, such as site planning and subdivision controls. Given this, it seems appropriate to start by clarifying the terminology.