Community Design Laws The Municipal Land Use Law The Local Redevelopment and Housing Law Community Design Case Law In New Jersey, the ability of local agencies to impose design controls is regulated by two fundamental statutes — the Municipal Land Use Law, the state's enabling planning statute — and the Local Redevelopment and Housing Law, which authorizes and regulates local redevelopment activities and, since redevelopment is increasingly important in New Jersey, is of growing relevance for the purpose of design controls. It is also important to have an understanding of the New Jersey case law relevant to design controls, in that it reflects the interpretations of the applicable provisions of these statutes provided by New Jersey courts. The Municipal Land Use Law The Municipal Land Use Law (NJSA 40:55D et seq) — affectionately known in planning circles as the "MLUL" — is the state's enabling planning statute. Adopted in 1975, it is in many ways outdated and in need of a profound overhaul, in particular with respect to its provisions regarding community design. This should not, however, provide an excuse for not pursuing smart growth projects and improved community design. With all its limitations, the MLUL does not preclude smart growth projects or improved community design and, indeed, contains under-utilized provisions that are helpful from a community design perspective. If most New Jersey communities do not exert leadership over community design it is not for lack of authority to do so, but rather for lack of interest and because they have not understood the benefits of doing so. One of the purposes of the MLUL is to "promote a desirable visual environment and [..] good civic design and arrangements" (NJSA 40:55D-2i); another purpose is "to prevent urban sprawl"; another yet is to promote "appropriate land development." These purposes give local governments a broad mandate to define the features of "appropriate land development", thus controlling physical form and community design. The reference to "good civic design and arrangements" suggests that municipalities are encouraged to integrate the planning and design of public buildings, public spaces and community facilities with the planning and design of private development. The explicit reference to the prevention of "urban sprawl" can be interpreted as a specific authorization for municipalities to shape physical form in a distinct direction — to promote compact development forms. The MLUL also allows municipalities to impose appearance controls, that is, to regulate or guide the way buildings and development look. The MLUL grants wide powers to municipalities to control design, although it does not call it design. Design review — the process of comparing a proposed design against a stated set of criteria — is one of the functions of the municipal Planning Board, under subdivision and site plan review (NJSA 40:55D-37) or of the Zoning Board of Adjustment, if certain variances are involved (NJSA 40:55D-76B). More specialized design review functions can also be referred to advisory agencies, such as the Environmental Commission or the Historic Preservation Commission, if they exist. The Local Redevelopment and Housing Law Redevelopment in New Jersey is governed by the 1992 Local Redevelopment and Housing Law (NJSA 40A:12A). The redevelopment statutes provide municipalities with a much greater level of control than the MLUL over physical planning and design, including the ability to implement community design plans and design guidelines. The scope and applicability of the redevelopment statutes in New Jersey have been broadened beyond the traditional dilapidated or blighted conditions commonly found in older urban areas. In addition to these conditions, the current statute also targets for redevelopment areas with buildings or improvements with: ".. faulty arrangement or design, [..] deleterious land use or obsolete layout, or any combination of these or other factors detrimental to the safety, health, morals or welfare of the community" (NJSA 40A:12A-5d); as well as areas where ".. a growing lack or total lack of proper utilization of areas caused by the condition of the title, diverse ownership of the real property therein or other conditions resulting in a stagnant or not fully productive condition of land potentially useful and valuable for contributing to and serving the public health, safety and welfare." (NJSA 40A:12A-5e) This broader language can be applied to suburban and rural conditions, in addition to more conventional urban conditions. For example, older suburban arterials with strip commercial development on small parcels, exhibiting poor vehicular and pedestrian circulation, inadequate parking, difficult access and generally a poor layout can be subject to a redevelopment process which assembles land, rationalizes circulation, creates a pedestrian realm and public spaces, enforces access management and redefines building masses. Case Law Relevant to Design Controls It is helpful to look at the relevant case law to understand how New Jersey courts have interpreted and clarified the applicable statutes with respect to community design considerations, even though it is somewhat incidental, and not directly on point. The courts have ruled that the "Purposes" section of the MLUL does not by itself constitute sufficient basis for a municipality to approve or deny development applications. Instead, municipalities are required to give body and substance to those purposes through municipal ordinances that "provide clear standards to guide both property owners and planning boards". Pizzo Mantin Group v. Twp of Randolph, 137 N.J. 215 (1994). Extending this principle to community design, municipalities are authorized under the MLUL "to promote a desirable visual environment and [..] good civic design and arrangements", but they must do so using the tools at their disposal and in a clear and rational fashion. The municipal master plan, the zoning ordinance and the land development regulations must be explicit as to what type of community design the municipality is pursuing, and this must be reasonable and justifiable. When a municipality has attempted to impose design standards that were deemed by the courts as vague and indefinite, they have been struck down Morristown Road Assoc v. Mayor of Bernardsville, 163 N.J. Super. 58 (Law Div. 1978). Surprisingly, perhaps, New Jersey courts have also upheld the reasonable application of aesthetic considerations to land use cases. In United Advertising Corp v Metuchen, 42NJ 1, 6 (1964) the court identified aesthetics as a relevant zoning consideration. In Zilinsky v. Zoning Board of Adjustment of Verona, 105 NJ 363, 368-369 (1987) the court upheld a provision requiring garages in a residential development, as a way to minimize "visual clutter" on the street. In Manalapan Realty v. Township Committee, 272 NJ Super 1, 9 (Appellate Division 1994), aff'd 140 NJ 366 (1995) the court found that, pursuant to NJSA 40:55D-2i, a municipality "also may prohibit a specific type of business operation based on aesthetic considerations", in that case stores selling lumber or building materials or which sell or display materials outside the premises. The banning of signs in residential areas on aesthetic grounds has been upheld United Property Owners v. Belmar, 343 NJ Super, 62-3 (App Div), cert den 170 NJ 390 (2001). Preservation of small town character has been upheld as a valid zoning consideration Eastampton Center v. Township of Eastampton, 155 F Supp 2d 102, 119 (DNJ 2001). However, the courts have also indicated that municipalities may regulate aesthetics only "with reasonable precision and without blanket delegation" (Damurjian v. Board of Adjustment, 299 NJ Super 84, 97 (App Div 1997). The power to zone based on aesthetics is not limitless State v. Miller, 83 NJ 402, 416 A.2d 821 (1980). In conclusion, aesthetic considerations have been deemed valid, as long as they are reasonable, firmly grounded and clearly explicit.