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The purpose of the Community Design & The Law section of the Smart Growth Gateway is to highlight the existing legal mechanisms that New Jersey municipalities can use to promote smart growth objectives through enhanced community design. It is clear that municipalities have the power to do quite a bit in this area - and they can certainly do much more than most towns have been doing. The current statutory framework, while far from ideal, is not an excuse to avoid better design.
This notwithstanding, better community design for smart growth could be significantly enhanced by statutory reform.
First, there is the issue of specific authorization. As previously discussed, NJ land use case law relies frequently on whether specific authorization for a particular requirement can be found in the enabling statutes. Smart community design at the local level would be considerably strengthened if both the MLUL and the LHRL specifically authorized and encouraged these activities. This would be achieved by incorporating into the statutes - both in the "purposes" sections and in the form of individual provisions - specific authorization for municipal boards to engage in community design.
But it is not enough to authorize local agencies to play a greater role in shaping the design of their communities. It is also critical to frame this enhanced authority in such a way that it actually promotes the type of community design that supports smart growth, and not a community design that supports sprawl. As such, we believe that the enabling statutes should include an explicit set of values and objectives that clearly promote smart growth through community design. For example, several states including Wisconsin and Connecticut have changed their enabling planning statutes to specifically authorize "traditional neighborhood developments", and have published model TND codes to facilitate their adoption at the local level.
There should be an acknowledgement that zoning is a clumsy and awkward tool when it comes to community design. Zoning is based on the principle of uniformity of treatment within zoning districts, whereas community design is fundamentally geared towards creating places, which requires differential treatment from location to location. Zoning tailored to implement community design plans can be open to legal challenge on the basis of "contract zoning" or "spot zoning". This is not an issue for community design plans implemented through the redevelopment statutes, but it is a very serious stumbling block for any other type of project. The solution is to reform the MLUL to authorize non-redevelopment projects to benefit from the same level of community design specificity permitted for redevelopment projects. In fact, it is hard to understand why public policy in NJ grants municipal agencies such latitude to shape the community design aspects of redevelopment projects, while simultaneously withholding that discretion under normal development circumstances.
The redevelopment statutes can also be improved. While it is possible to achieve considerable specificity in terms of community design through the redevelopment process - certainly far more than through the MLUL - this specificity is allowed, but not required. In practice, most redevelopment plans are just as vague when it comes to community design as municipal master plans. Many communities find out about the design specifics of redevelopment projects only when the designated redeveloper appears before the lead municipal agency with a plan, which is very similar to the situation a community is in when a developer submits a conventional land development application to the planning or zoning board under zoning. This is much too late in the process. The redevelopment statutes should instead require greater design specificity at the time of adoption of the redevelopment plan. This would make it perfectly clear to both the community at large and to interested redevelopers what the redevelopment plan is intended to achieve, and thus preempt considerable discussion and misunderstandings later on.
Reform of the enabling statutes should take note of current trends in land development controls nationally, which include "form based" zoning and the use of "specific plans", an instrument utilized in other parts of the country to create and implement detailed community design plans. The specific plan could extend the community design authority currently available in NJ only under the redevelopment statutes to areas that would not legally qualify for designation as "areas in need of redevelopment", without constituting the basis for the granting of tax abatements nor authorizing the municipality to exercise eminent domain.