Tuesday, October 20, 2009

Form-Based Codes and Jurisdictional Questions

I wanted to give a preview of tomorrow's local hearing over what appears to be a form-based code designed for an area near Charleston's port.  One of the issues I've mentioned in prior posts is whether the adoption of a form-based code in a historic district might tend to trump the role of a board of architectural review, which is required (in Charleston, at least) to approve the height, scale, and mass of any new construction within the historic district, a role delegated by law as belonging to the board of architectural review.  After additional reflection, this situation seems to raise interesting jurisdictional issues, too.

One way to avoid this problem might be something known as "area character appraisals," where residents, city officials, preservation groups, and other stakeholders agree ex ante on the forms new buildings ought to take.  If this type of concensus is not established soon in Charleston, the likelihood of future litigation is likely to increase, especially if a developer gains approval to build a pre-approved form that a board of architectural review rejects.  Or by preservation groups objecting to the subject matter jurisdiction of a planning commission that usurps the role of a board of architectural review.  Some of these issues will be raised Wednesday night at a public forum.  I'll let you know the outcome.

Will Cook, Charleston School of Law


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