• Tools Provided by the Municipal Land Use Law
  • Master Plan Elements
  • Official Map
    • Hoboken's Official Map
  • Zoning & Land Development Regulations
    • Zoning Districts
    • Planned Development & Overlay Zones
    • Bulk Standards
  • Subdivision Controls
  • Site Plan Standards
• Tools Provided by the Local Redevelopment & Housing Law
• The Redevelopment Plan
  • Request for Proposals
  • Memorandum of Agreement
  • Redevelopment Agreement
• Design Guidelines

Master Plan Elements
The master plan provides the foundation for many aspects of local planning, including community design. The master plan's description of the desired character for the community, and the ways in which that character may vary from neighborhood to neighborhood constitute a solid foundation for the regulatory framework comprising the zoning and land development provisions that will in turn implement those intentions.

As previously discussed, control of physical form at a larger scale is achieved first and foremost through design of the street system and the location of important public spaces, buildings and facilities. These key objectives can be achieved through the land use plan and circulation plan elements of the master plan.

The land use plan element (NJSA 40:55D-28) can designate the "[..] existing and proposed location [..] of land to be used in the future for [..] public and private purposes or combinations of purposes". Public areas are broadly defined by the MLUL to include

1. public parks, playgrounds, trails, paths and other recreational areas;
2. other public open spaces;
3. scenic and historic sites; and
4. sites for schools and other public buildings and structures.

The circulation plan element can designate the "[..] existing and proposed circulation facilities", that is to say the vehicular and pedestrian circulation network.

Together, the land use plan and circulation plan elements can define the basic physical framework of the community — its circulation system, including pedestrian and bicycle networks — and the location of all public buildings and public spaces. The land use plan element can similarly depict different neighborhoods, areas or districts, along with the desired physical character — intensity of development, predominant land uses, building heights, and so forth — for these different parts pf the community.

The land use plan and circulation plan elements of the municipal master plan are not merely indicative. They provide one of the two available vehicles — the other being the official map — for municipalities to act proactively and actually design their street systems and reserve specific parcels for public spaces. Although most NJ municipalities are unwilling to take this initiative, preferring to delegate these responsibilities to the development community, it is not for lack of specific authorization to do so.

The provisions of the land use plan and circulation plan elements can be visually combined in the form of an "illustrative site plan", depicting the generalized street system, location of major public spaces, location of major civic buildings, generalized distribution of land uses and mix of uses, generalized distribution of densities and intensities, private building lots and even approximate building footprints. This type of map is often referred to in the community design literature as a "regulating plan". The regulating plan provides a tangible vision and physical backbone for future development. At the same time, it does not necessarily establish the number and type of buildings or housing units on individual blocks, and flexibility and market-driven variations can be allowed.

The regulating plan is not specifically authorized by the MLUL, nor is it prohibited. As stated earlier, its key objectives can be achieved through the land use plan and circulation plan elements of the master plan. An illustrative site plan, when adopted as part of the municipal master plan, and if strongly supported by appropriate zoning and land development regulations, will provide considerable clout to the local review agencies in carrying out the community's design objectives.

Some municipalities adopt, as part of their master plan, discretionary elements such as a "community character element" or a "community design" element. These elements are not specifically authorized by the MLUL, and consequently have less standing than, for example, the land use plan element, but they can nevertheless be viewed as expressions of community's intentions regarding design [hotlinks to examples of community character and community design master plan elements].

Official Map
The official map is an extremely powerful tool offered to municipalities for the purposes of controlling community design. Like the land use plan and circulation plan elements of the master plan, the official map gives municipalities the opportunity to reserve land for future street alignments, as well as for public spaces, flood control areas and other public areas. Unfortunately, it is rarely used in present days.

The MLUL refers to the official map in the following terms:

"The official map shall be deemed conclusive with respect to the location and width of streets and public drainage ways and the location and extent of flood control basins and public areas, whether or not such streets, ways, basins or areas are improved or unimproved or are in actual physical existence". (NJSA 40:55D-32)

The official map gives a municipality the authority to deny permits to build on the reserved areas. The map - showing street alignments, sites reserved for public uses, and areas reserved for stormwater and flood control — provides a very clear picture, to property owners, developers and to the community at large, of the municipality's intentions with regard to physical form and design.

Adoption of the official map does not preclude owners of property encumbered by it from submitting alternative development plans to the municipality, for consideration. If the property owner and municipality are unable to reach an agreement, the lands reserved through official map designation must be purchased for the intended purposes by the municipality, using condemnation as a last resort. Municipalities have one year from the date of approval of a final plat affecting those lands to effectuate these procedures. (NJSA 40:55D-44)

Since most public right-of-way is acquired at no cost to the municipality through the private subdivision process, implementation of the official map without the cooperation of the private property owners can be expensive. As such, it is always advisable to include the affected property owners in a collaborative planning and design process, which can demonstrate conclusively the advantages of the proposed alignments, and to then use the official map as a tool to effectuate that plan. Of course, the municipality can also pursue through the official map alternatives to land acquisition - such as deed restrictions, easements, purchase by a non-profit entity, open space dedication or other — that may achieve the same objectives.

Procedurally, the MLUL requires the official map to be first referred to the planning board (40:55D27A), prior to adoption by the governing body (40:55D-32). The intention is that the official map be generally consistent with the relevant provisions of the master plan. It can be inconsistent with the master plan only if it is adopted by an affirmative vote of the governing body, with the reasons for the inconsistency recorded in the minutes of the meeting at which the action is taken by the governing body.

The official map has been upheld by the New Jersey courts, with some reservations. In a 1991 case — Nigro v. Planning Board of Saddle River (122 NJ 270) - the court upheld the integrity of the official map, up to a point. The court confirmed the alignment of major streets and other facilities as shown on the official map, but challenged the official map's authority relative to minor streets. However, this may have been the result of insufficient legwork on the part of the municipality in terms of the areas it wished to reserve, which may not have been actually surveyed in the field. Cox recommends that the official map should be as exact and specific as possible, and that properties targeted on the official map for future acquisition be accurately surveyed in the field.

In summary, the official map is a powerful tool that municipalities can use to design the street network and locate important public spaces. The courts have indicated that the more accurate the official map, the more effective it will be. If the street alignments shown on the official map have been surveyed and do not raise practical difficulties in the field, they are likely to withstand legal challenge. Some municipalities are also using the official map successfully to designate land for the purposes of open space preservation and acquisition. The identification on the official map of properties targeted for municipal acquisition for open space purposes is an important step in validating condemnation proceedings before the courts.

The Hoboken Waterfront The city of Hoboken used its official map to create a new street alignment along its waterfront. The road - an extension of Sinatra Drive - will cut through a number of redevelopment parcels, and essentially demarcate the waterfront park and walkway to the East from the new office and residential development to the West. The official map has been instrumental in securing the integrity of this important street.

Zoning and Land Development Regulations
While in NJ the master plan is by and large an advisory document, its intentions are meant to be carried out through the zoning and land development regulations, which are regulatory documents adopted as part of the municipal code. For municipalities with an interest in shaping community design, consistency between the municipal master plan and the provisions of the municipal code is essential.

Zoning Districts
Zoning is a legal mechanism that seeks spatial homogeneity of land uses and land development patterns. This homogeneity is achieved by assigning particular land uses and development types to specific areas, and precluding all others. So a given zoning district may be restricted to residential development of single-family homes on lots exceeding 1 acre in size, and conforming to certain lot size parameters, say 100 feet minimum frontage and 150 feet minimum depth. The establishment and delineation of zoning districts and the assignment of permitted and excluded land uses is the very basis of zoning.

While zoning does not necessarily require a cookie cutter approach such that, in a given district, every lot size is exactly identical and every land use is identical, it nevertheless precludes, by its very definition, the type of fine-grained traditional neighborhoods and districts that constitute the basis of smart growth communities.

Conventional zoning is also antithetical to sophisticated community design in that it requires homogeneity within each district, thereby outlawing community design techniques and objectives that may seek to differentiate between different locations within that district. For example, emphasizing important visual terminations with larger or taller buildings or, conversely, by creating a void in the form of a public space is a well-accepted community design strategy. This is not permissible under zoning, since it would differentiate that lot from all others in the district. Nor is it permissible to create separate districts for each of these special situations, since this is generally viewed as tantamount to "spot zoning", a practice that has been conclusively struck down by the courts in NJ and elsewhere insofar as it violates the uniformity clause of the MLUL, which states "The regulations in the zoning ordinance shall be uniform throughout each district for each class of buildings or other structures or uses of land .. but the regulations in one district may differ from those in other districts" (NJS 40:55D-62a).

Conventional zoning, with its emphasis on increased spatial segregation and homogenization of land uses, is a blunt instrument not appropriate to advance community design and smart growth objectives.

Planned Development and Overlay Zones
Better physical planning and community design require a permitting framework which draws a balance between predictability and flexibility, that is to say it contains enough detail to provide certainty of a desirable outcome for the municipality, while providing enough flexibility for the developer to respond to changes in the marketplace and take advantage of unexpected opportunities.

As previously mentioned, the New Jersey enabling statutes are outdated and contain no reference to "traditional neighborhoods" — the fundamental building block of smart growth communities — which contain a mix of housing and building types, land uses, lot sizes and so forth. Traditional neighborhoods require either explicit authorization or considerable flexibility in the regulatory framework, neither of which is currently available under New Jersey statutes.

With these caveats, there are two options available under the MLUL for those interested in pursuing traditional neighborhoods - overlay zones and planned developments.

Overlay Zones
Overlay zones are a voluntary mechanism that creates an alternative land development scenario for a given area or district. Overlay zones can require community design considerations not permissible under conventional zoning, because they are optional, not mandatory. Since property owners are free to develop according to the underlying, conventional zoning, overlay zones do not violate the uniformity clause of the MLUL.

Overlay zones can be quite effective if they offer landowners and developers a much more attractive or lucrative land development scenario than permitted by the underlying zoning. For example, a particular area may be zoned for one dwelling unit per acre under conventional, underlying zoning. The municipality may create an overlay zone allowing, say 10 units to the acre, provided the developer conforms to the provisions of a community design plan. If these provisions are unacceptable, the property owner is free to develop according to the less valuable underlying zoning.

The Washington Town Center, in Mercer County, is the largest greenfield new urbanist community in New Jersey and is being developed as an overlay zone.

Planned Developments
The other flexible mechanism currently provided for the land development process applies to projects qualifying as Planned Developments, a 1970s construct and, in some ways, an approximation to traditional neighborhoods. The MLUL identifies four types of planned developments: Planned Commercial Developments (PCD), Planned Industrial Developments (PID), Planned Unit Development (PUD) and Planned Unit Residential Development (PURD).

Planned Developments are, by definition, mixed-use. For example, a Planned Unit Development (PUD) is defined as:

"an area with a specified minimum contiguous acreage of 10 acres or more to be developed as a single entity according to a plan, containing one or more residential clusters or planned unit residential developments and one or more public, quasi-public, commercial or industrial areas in such ranges of ratios of nonresidential uses to residential uses as shall be specified in the zoning ordinance".

Planned Commercial Developments include commercial and office uses, but also residential; while Planned Unit Residential Developments may include commercial, public and quasi-public, in addition to the residential.

Planned developments can be quite small — 10 acres for a PUD and 5 acres for a PURD, with the minimum acreage for PCD and PID defined by local ordinance. It is important to note that minimum acreages for planned developments need not be contiguous.

The mixed-use nature of planned developments and the relatively low land area thresholds required under the statute combine to provide a tool with greater flexibility than conventional single-use zoning designations.

To facilitate the submission, review and approval of larger planned developments (over 100 acres), the MLUL's General Development Plan (NJSA 40:55D-45.1-8) provisions allow a municipality and a developer to define the key development parameters for an application and a conceptual layout prior to site plan review. These provisions establish a more flexible framework for municipalities and developers to work together, by allowing — through the phasing system — a developer to avoid the up-front submission of final engineering plans and subdivision plats for the entire project. Instead, a developer need only submit the subdivision plat and engineering plans for the phase for which approval is being sought. These provisions are likely to apply mostly to large greenfield projects, of which there is a diminishing number in NJ.

Bulk Standards
The MLUL provides that a zoning ordinance may:

Regulate the bulk, height, number of stories, orientation, and size of buildings and other structures; the percentage of lot or development area that may be occupied by structures; lot sizes and dimensions; and for these purposes may specify floor area ratios and other ratios and regulatory techniques governing the intensity of land use and the provision of adequate light and air, including, but not limited to the potential for utilization of renewable energy sources." (NJSA 40:55D-65b)

These development parameters are commonly referred to as "bulk standards", and are widely used in New Jersey, allowing municipalities to regulate, for individual lots, the placement, intensity and character of development, that is to say such things as the amount of open space on the lot, the height of the building(s), the setback(s) from property lines and public rights-of-way, the impervious coverage, and so forth. All of these parameters are of interest from a design perspective.

Bulk standards are directly tied to a zoning district, and must apply uniformly therein. While bulk standards control physical development on individual lots, they do not provide a mechanism for shaping overall development form, nor do they allow for a fine grained differentiation within each district. Bulk standards can be tied, through a sliding scale, to lot size and may recognize certain locations, such as corner lots. But reliance on bulk standards as the sole or primary mechanism for controlling development form leads almost inevitably to poor community design outcomes.

Subdivision Controls
Subdivision controls allow a municipality to shape the parcelization of land, or "platting" as it is often called, by setting minimum parameters for lot size and lot configuration. Through subdivision controls, municipalities can require new streets to shape blocks of certain dimensions, by setting minimum and maximum parameters from intersection to intersection, and by establishing general rules for block size and configuration. So, for example, the subdivision ordinance may require blocks to have between 200 and 250 feet on the short side, and between 200 and 600 feet on the long side, and to be rectangular. Or, the subdivision ordinance may require all platting to follow a uniform grid, of say 200 by 400 feet.

Municipalities may also allow some flexibility in lot sizes, within any block, in response to environmental or other conditions, such that the platting is more responsive to the natural conditions on a site. However, since the subdivision ordinance must establish a uniform set of rules for the entire municipality, it is impossible to establish through this mechanism what will happen in different locations and, consequently, it is very difficult to achieve community design objectives. The subdivision ordinance imposes a rather abstract set of geometric rules that are mostly antithetical to the subtleties of good community design.

Site Plan Standards
The site plan ordinance contains many of the design criteria against which the planning board will judge a given development application. Along with the subdivision controls and the zoning, the site plan standards constitute a municipality's core regulatory framework for shaping development. Design review at the local level occurs primarily through scrutiny, by a local board, of a site plan submitted for a development application. The site plan will show all the most important physical features of the proposed development. Unfortunately, most municipalities do not require site plan applications to submit physical information for the area surrounding the proposed development site, such that the physical context is not adequately represented.

The Redevelopment Plan
The redevelopment plan is the document that establishes the land use and zoning parameters for reuse of the property. Its mandatory contents are spelled out in the redevelopment statutes [hotlink to redevelopment handbook]. The redevelopment statutes do not explicitly require that the redevelopment plan include design controls, and as such these documents are often dry and uninspiring. But the redevelopment statutes do not preclude design controls, and incorporating these in the redevelopment plan has the great advantage of making the physical intentions of the redevelopment plan clear to everyone - citizens, property owners, other stakeholders and eventual redevelopers.

Once a redevelopment plan has been adopted, redevelopment agencies frequently issue a Request for Proposals (RFP), which publicizes the plan and solicits expressions of interest from potential redevelopers. Most RFPs contain little or no guidance in terms of the design intentions for the subject property or properties, often because little or no thinking on design issues has taken place at that point. There is considerable insecurity in this regard among redevelopment agencies, often associated with inexperience and a poor understanding of the inner workings of the private real estate market. Redevelopment agencies are loath to develop a full-fledged design vision for a redevelopment area, for fear of alienating potential redevelopers. Instead, redevelopment agencies rely on potential redevelopers to develop a vision for the property and to present it in their responses to the RFP. If a redevelopment agency likes the vision provided in a proposal, it may select the redeveloper and seek to sign a memorandum of agreement. But again, the advantage of incorporating design controls in the RFP is to provide the potential redeveloper and the broader community, early on, with the desired design framework for the area. This early statement of intentions puts the redeveloper on notice of the community's wishes and avoids potential misunderstandings down the road.

The memorandum of agreement (MOA) is a frequently used intermediate step between RFP and redevelopment agreement. It is a legally binding document signed by the redevelopment agency and the potential redeveloper and containing the conditions under which the two parties will seek to develop a formal redevelopment agreement. It allows both parties to perform further due diligence and often calls for the redeveloper to submit additional technical studies, guarantees and so forth. It is another opportunity to discuss and establish a design framework for the property.

Finally, the redevelopment agreement is the legal contract between the redevelopment agency and the selected redeveloper. It binds the two parties to a set of terms and conditions regarding the redevelopment of a property. In addition to the financial details of the transaction, the redevelopment agreement usually establishes a project timeline and performance measures to evaluate the redeveloper's progress. It refers back to the redevelopment plan, but usually goes well beyond it with a much more refined and complete picture of the redevelopment intentions. It is the last opportunity for a redevelopment agency to establish binding design controls.

The RFP, MOA and redevelopment agreement are all legally enforceable documents, and there is absolutely no question over a redevelopment agency's authority to include design controls as part of them. Unfortunately, most redevelopment agencies pay little attention to design and fail to take advantage of these opportunities to establish a clear design framework. In the absence of a clear, legally mandated design framework, the discussion of design issues in many redevelopment projects, as in most other development projects, is relegated to the site plan review stage, when it is often too late to make significant changes. While some redevelopers may resist design controls created by the redevelopment agency - in the belief that they encroach on the flexibility they need to best position their project in the marketplace - others recognize that an adopted design framework can be a valuable tool in streamlining and expediting the review and approval process, and agree that clarity with respect to design is a greater asset than ambiguity.

This points to a weakness in the redevelopment process laid out in the redevelopment statutes. The redevelopment statutes identify the formal determination of an area as being "in need of redevelopment" or "in need of rehabilitation" as the first legally required step in the redevelopment process, and that is how most redevelopment agencies in New Jersey begin the redevelopment process. The statutes do not preclude - but do not require - the carrying out of planning studies or visioning exercises prior to that determination of area "in need of redevelopment". The investment, upfront, in planning and visioning is strongly advisable because it provides an opportunity to engage the community of stakeholders, to educate it with respect to the redevelopment process and to air concerns and ideas early on. Determinations of areas "in need of redevelopment" are frequently controversial and sometimes contested because the community is unclear about the consequences of such a determination. This lack of clarity breeds fear and opposition. When the determination of an area "in need of redevelopment" is preceded by a public planning and visioning process, the community is educated about its real purposes and intentions, there is an opportunity to create a consensus over the vision for redevelopment, there is greater clarity about the desired outcomes and, as a result, the entire redevelopment process is strengthened, both legally and in terms of its public image.

The redevelopment statutes grant municipalities the power to condemn property — within a redevelopment district, and according to an adopted redevelopment plan — on behalf of a third party, the designated redeveloper. Both the designation of a redevelopment district and the adoption of a redevelopment plan are subject to public hearings and open to public scrutiny. Condemnation can become the ultimate design tool. However it should be used sparingly.

The redevelopment plan can be structured like the regulating plan discussed previously, in which case it becomes a precise instrument for controlling physical form. The redevelopment statutes provide local authorities with an ideal framework for undertaking — through a redevelopment agency — a variety of smart growth initiatives, such as redeveloping failed shopping centers, brownfield sites or other obsolete land uses into vital, mixed-use projects; restructuring the circulation system to create livable streets, restore a pedestrian atmosphere, or develop missing links that establish a more integrated network; or carve out new formal public open spaces or sites for important public buildings.