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When answering these questions, it is useful to distinguish between private design controls — those imposed by private developers — and public design controls, which can be exercised by local or non-local agencies.
Private Design Controls
Private developers, both for profit and non-profit, are subject to a complex web of state and local controls, but they do have full control over the design of their projects, relative to their own sub-contractors.
A master-developer of a project of any size can impose design controls over individual builders, as well as developers who take over portions of the project, even when design controls are not required by the municipality.
These private design controls have been used for centuries and are in the nature of a contractual relationship. They are entirely within the realm of private business transactions and are determined by contract law, not by the statutory planning framework. A master-developer can impose design controls over other developers, builders, tenants or homeowners through legal mechanisms such as covenants, deed restrictions, provisions contained in the by-laws of the homeowners association, or through pattern-books [provide sample page] and design guidelines [provide sample page] adopted by the developer specifically for the project. Developers use these mechanisms to establish the physical character of their development project and to protect their financial investment from inappropriate designs that they fear could reflect negatively on the rest of the project and compromise real estate value.
Similarly, public agencies acting as developers can impose design controls over their contractors, or over developers benefiting from public subsidies [box — DCA Neighborhood Preservation and Balanced Housing Program — design guidelines]. These controls may not preempt duely authorized design controls adopted by the local reviewing agency.
Design controls may also be imposed from the supply side, that is, by lending institutions, national retailers, corporate tenants or others who influence real estate development as intermediaries or consumers. Banks and other lenders may have certain projects standards — for example minimum parking ratios — that they may require prior to making a financial commitment. Similarly, national or regional retailers tend to develop a template for their facilities, which may include a standard site plan, parking ratio, parking layout, building footprint and building design, including choice of building materials, color scheme and signage. This type of standardization provides instant image recognition on the part of consumers and offers efficiencies to the business. Those considerations notwithstanding, it is important to reiterate that local review agencies are under no obligation to accept these types of private design standards, in particular if they contradict locally adopted design controls. In fact, to the extent that establishing or reinforcing local character is one of the objectives of the local design controls, then it becomes essential to require national franchises to respect and abide by them. There are many examples from New Jersey and around the country where national franchises have made significant modifications to their standard design templates as a condition of project approval by local review agencies. [box — examples]
If a community has adopted municipal design controls, these take precedence over any private design controls a developer may establish (but not over public design controls — see below). However, in New Jersey most communities have enacted only the most rudimentary design controls and so this void can be filled by private design controls. Improving the overall quality of community design and reforming the design review process constitute important objectives for the smart growth community.
Public Design Controls
State and county agencies have in some instances been granted legislatively the authority to impose design controls that preempt local authority. Most of these are special purpose regulations, focusing on a single objective, such as environmental protection or traffic control. For example, the Pinelands Commission, pursuant to the Pinelands Commission Act (NJSA 13:18A-1 et seq), has profound influence over project design within its area of jurisdiction, which covers approximately 20% of New Jersey. The primary intent is to protect the environmental integrity of the NJ pinelands, a fragile special resource area. Consequently, the Pinelands Commission's design controls focus primarily on those aspects of development — such as impervious coverage, stormwater management and setbacks from sensitive areas — directly affecting water quality and other protected natural features.
Similarly, the 1973 Coastal Area Facilities Review Act (NJSA 13:19-1 et seq) better known as CAFRA, has considerable influence over project design in the area generally east of the Garden State Parkway. CAFRA was adopted pursuant to the federal Coastal Zone Management Act (16 USC 1451 et seq), and it regulates development along the NJ coast, again with the intent of protecting fragile coastal ecosystems. Paradoxically, some aspects of CAFRA regulations are not friendly to smart growth objectives, requiring, for example, higher parking ratios than is normal practice, thus leading to higher impervious coverage and sanctioning greater auto-dependence.
More recently, the New Jersey Residential Site Improvement Standards (NJAC 5:21) adopted pursuant to the Uniform Site Improvement Act (NJSA 40:55D-40.1 et seq) have imposed state mandated design standards applicable to certain aspects of residential development anywhere in the state. Subchapter 4 of the Residential Site Improvement Standards (RSIS) preempted local authority to establish street design standards, a critical community design element. Instead, a limited template of 23 street types was imposed, with the intent of creating uniformity throughout the state. The RSIS has had a positive influence in curbing excessive street width and other over-engineered requirements in many suburban and rural municipalities. On the other hand, the RSIS has also curbed individual expression in street design, in that it requires compliance with a limited range of standardized, generic street cross-sections with a distinct suburban flavor. Subchapter 4 also mandates minimum residential parking ratios, as a function of housing type, regardless of the physical context where the housing is located — as if the parking demand for a 3-bedroom single-family house were the same whether the house is in a rural area or a transit-rich urban area. Subchapter 7 similarly preempted local authority over the design of stormwater management facilities in residential developments.
Fortunately, the RSIS contemplate local deviations under certain conditions, through the adoption of "special area standards" for historic districts, infill projects in urban areas, redevelopment areas, scenic corridors and many others. Many municipalities have been availing themselves of the special area provisions and reclaiming their right to define unique street design standards to establish a distinct identity for their downtowns and neighborhoods, to require reduced parking ratios to better match local realities and objectives and, similarly, to design stormwater management facilities more suited to local conditions and values.
County engineering departments regulate stormwater management facilities and street design along county roads. NJDOT likewise has jurisdiction over stormwater and street design along NJ highways. Both NJDOT and county engineering departments rely on their own adopted design standards, which generally are slightly modified versions of standards established by national organizations — such as AASHTO, the American Association of State Highway and Transportation Officials.
While these public design controls represent exceptional situations, in terms of the big picture, they are nevertheless very influential in determining design options for projects under their jurisdiction. Well-intentioned all, they are needlessly complex, rigid and often out of date, and cause for considerable frustration on the part of smart growth designers. Many of these design regulations are overdue for a smart growth review to weed out obsolete or counter-productive requirements and design standards.
Local Design Controls
Local control over design issues is the rule in New Jersey. This authority is granted by the MLUL, which gives local review agencies broad jurisdiction over design (even though, as we have explained, it does not use the term "design"). The two local review agencies — the municipal planning board or zoning board of adjustment — have jurisdiction over private development or redevelopment projects, with planning boards wielding considerably more authority over design issues than zoning boards. This authority is exercised through the site plan and subdivision review processes, and so is not applicable to the "subdivision or individual lot applications for detached one or two dwelling-unit buildings", which are exempt from site plan review (40:55D-37). [See section on the design review process for more detail on the role of local review agencies.]
Applicability of Local Design Controls to Public Projects
While municipalities have a great deal of design control over private projects, projects sponsored by public agencies have a more complicated status relative to local design controls. As a rule, local review agencies have limited jurisdiction over public development or redevelopment projects — often confined to a courtesy review.
Federal agencies (such as the United States Postal Service or the Department of Defense), and bi-state agencies (such as the Port Authority of NY and NJ or the Delaware River Port Authority) are explicitly exempt from local zoning and site plan review. State agencies — such as the Treasury department's Division of Property Management and Construction, or State authorities, such as the NJ Building Authority or the NJ Economic Development Authority, acting as real estate developers, are also exempt from local zoning and local site plan review. The same is true for projects developed by Rutgers, the State University "with regard to facilities that are directly related to the provision of educational services" (NJS 18A:65-33.5). The situation is less clear with respect to other public institutions of higher education and other public agencies. In practice, a site plan is generally submitted in the above situations for a courtesy review by the local board.
Municipal planning and zoning boards have greater leverage over other local public agencies. The MLUL requires governing bodies and local agencies to refer any projects involving the expenditure of proposed capital funds to the planning board for review and recommendations (NJS 40:55D-31a). This requirement applies to local agencies such as school districts, housing authorities, redevelopment agencies and improvement authorities. It is generally interpreted that this requirement implies site plan review, although in practice the level of scrutiny is often perfunctory, compared with the level of scrutiny exercised in the review of private projects. Public schools, however, while subject to local use restrictions, are not subject to the bulk standards — such as setbacks, maximum building height, etc — commonly found in municipal zoning; and proposals for construction or addition of public schools are approved by the state board of education and not subject to final approval by the local planning board Murnick v. Board of Education of City of Asbury Park, 235 NJ Super 225, 561 A.2d 1193 (1989), certification denied 118 NJ 201, 570 A.2d 963.