 |
 |
 |
 |
 |
 |
 |
 |
Planning and Zoning Board Review
While municipal planning boards have broad authority to conduct design review, zoning boards have only limited authority over matters of design. Zoning boards evaluate development applications according to a series of criteria established both by the MLUL and by applicable case law. Design is not explicitly included in those criteria. While some zoning boards may take a more expansive view of design in their deliberations, the margin for incorporating design considerations is generally slim.
There are exceptions, however. First, the zoning board may explicitly address design issues if the municipal master plan and/or land development regulations establish an explicit basis for said review. The relevant provisions in the municipal documents help the zoning board evaluate if an application meets the statutory criteria for a variance. Second, in "d" variances involving expansions of non-conforming uses, the zoning board may impose specific design requirements - even if purely aesthetic - as conditions of approval, provided these will better integrate the use with its surroundings Burbridge v. Mine Hill Twp, 117 N.J. 376 (1990). However, the courts have indicated that aesthetic improvements alone are not a justifiable basis for substantial increases in non-conformity, so there are limits to this doctrine.
Zoning boards are quasi-judicial entities that lack a planning board's broad ability to negotiate modifications to a development proposal. Zoning boards engage in zoning, not planning. Indeed a zoning board's review process is highly codified and subject to important limitations in terms of its scope. This is a frequently misunderstood aspect of zoning board procedure. A zoning board may engage in design review only if there is a site plan application, and then only when there is explicit guidance relevant to design matters provided in the applicable provisions of the municipal master plan and/or the municipal land development regulations. Only in those situations is a zoning board authorized to require modifications to project design. A zoning board may not create its own design framework, no matter how much the individual situation may cry out for one.
Design Review by Other Agencies
Design review is vested in the planning and zoning boards and may not delegated. However, the MLUL gives municipalities the ability to create other agencies - such as historic commissions and environmental commissions -- with advisory or regulatory authority over certain types of design review.
Municipalities may designate and regulate historic sites and historic districts -- identified in the historic preservation plan element of the master plan -- through the zoning ordinance, and provide design criteria and design guidelines applicable to development projects within those districts (NJS 40:55D-65.1). Historic Preservation (or Landmark) Commissions advise planning and zoning boards with respect to the design of development applications that may affect designated historic resources.
Environmental Commissions can be asked to comment on the environmental aspects of a proposed development (NJS 40:55D-27), provided they have prepared an environmental resource inventory for the municipality. Since almost every aspect of design has potential environmental consequences, the scope of the design review by the Environmental Commission can be quite broad. In practice, most environmental commissions take a narrow view of their role and focus on a few key issues: site disturbance, tree protection and stormwater management.
The MLUL authorizes municipalities to create through their site plan ordinance, a Site Plan Review Advisory Board (SPRAB) for the purpose of providing non-binding site plan reviews (NJS40:55D-39f.) This is the case with Princeton Borough and Princeton Township - which have the only joint planning board in the state. Princeton's SPRAB consists of 12 volunteers, many drawn from the design professions. It holds public meetings, keeps minutes and issues memoranda conveying its recommendations to either the planning board or zoning board.
Metuchen and other towns offer the option of an informal review by a Technical Review Committee. These informal review entities might include the Township Administrator, engineer, planner, planning board chair and/or vice-chair, and mayor. Developers are not required to appear before these review committees, which are completely unofficial, but they are often a good sounding board for a development proposal. Other towns have Architectural Review Boards, serving a similar purpose.
Special Improvement Districts (SIDs) are specifically authorized by their enabling legislation to develop design guidelines, criteria to regulate the construction and alteration of facades of buildings and structures in a manner which promotes unified or compatible design (NJSA 40:56-70) and many have done so.
Some SIDs have also taken a leadership role in implementing their design guidelines, offering incentives -- such as free design assistance, low-interest loans or matching grants -- to participating merchants and property-owners seeking to initiate facade renovations, streetscape improvements or other improvements in accordance with the guidelines. However, the planning and zoning boards are under no obligation to follow design recommendations submitted by the special improvement district.
Streamlining Design Review
One of the objections to formal design review is that it adds yet another layer of bureaucracy to an already extremely complicated and time-consuming process. This is a fair criticism. It is important that enhanced design review be linked with clear and concise evaluation criteria, and coupled with a bona-fide effort to streamline the whole development review process.
The submission requirements for site plan application call for fully engineered drawings. To produce a site plan application, a developer has to invest considerable resources in planning, engineering, legal and other technical studies. Consequently, there is a propensity on the part of the developer to not welcome significant design modifications that will entail costly revisions. While some level of revisions is inevitable, a better process entails taking advantage of the possibility for informal review, not requiring fully engineered drawings.
Planning boards are authorized, at the request of the developer, to provide informal reviews (NJS 40:55D-10.1) of a concept development plan. Neither the planning board nor the developer is bound by the results of this review, but it provides for an informal exchange of information early in the process.
One of the objectives of smart growth is to streamline the permitting process for projects with merit, that is, smart growth projects in smart growth locations. This is certainly possible for state agencies, which through the rulemaking process can link permits to smart growth criteria, lowering the permit requirements in smart growth areas and raising the bar for permits in areas more appropriate for conservation. It is not currently possible for local governments, however, since the MLUL requires every site plan application to be treated equally, no matter where the project site is located or what type of project is proposed. This notwithstanding, local governments can promote smart growth projects by investing up-front in their planning and design and subsequently by streamlining permitting procedures in general.