Tuesday, June 5, 2012

Mandelker's Designing Planned Communities

Earlier in the Spring, Matt let us know about the availability of the first chapter of Daniel Mandelker's Designing Planned Communities (2010). Now, Prof. Mandelker (Washington U.) has posted the next four chapters of the book. The entire book can be downloaded from the author's website. Here are the links to the second through fifth chapters in order with the author's descriptions:

Creating Designs for Planned Communities

This is the second chapter in a book, Designing Planned Communities (2010), that reviews the concepts and ideas that go into the design of planned communities, and explores how local governments can encourage and provide for their good design through land-use regulation. Planned communities require a number of design solutions: a design for the entire project as well as designs at the site, building, and streetscape levels. The discussion of these issues in this chapter assumes a planned community large enough to need design solutions at the project level and for a number of subsidiary elements such as mixed-use centers, neighborhoods, sites, buildings, and streetscapes. Many of these design solutions are also required in smaller planned communities such as mixed-use communities. All planned communities need a neighborhood design, for example, and all must consider designs for buildings and their sites. This is true even of cluster housing. The chapter surveys the design ideas, concepts, and solutions that are available for planned communities and for each level within these communities.

Design Standards in Comprehensive Plans, Guidelines, and Manuals

This is the third chapter in a book, Designing Planned Communities (2010), that reviews the concepts and ideas that go into the design of planned communities, and explores how local governments can encourage and provide for their good design through land-use regulation. This chapter shows how design policies and standards can be incorporated in local comprehensive plans, design guidelines, and manuals for the purpose of guiding the design of planned communities. Comprehensive, or general, plans are mandatory in many states and contain planning policies for the future growth of the jurisdiction. Land-use regulations and decisions are expected to take the planning policies into account, and, in some states, must be consistent with the plan. Design policies can be one of the elements in a plan. Design guidelines and manuals are separate and usually unofficial documents that supplement planning policies in the plan and land-use regulations in the zoning ordinance.
The role these documents play in the review and approval of planned communities varies. Significant design detail in these documents can provide a policy framework for planned community zoning amendments or for formal design standards in planned community regulations. Alternatively, some local governments adopt design guidelines and manuals if they know they will not be able to update their zoning regulations for some time, and need policies to support rezoning requests and variances that may arise from major conflicts with underlying zoning in the meantime.

Design Standards in Zoning Ordinances

This is the fourth chapter in a book, Designing Planned Communities (2010), that reviews the concepts and ideas that go into the design of planned communities, and explores how local governments can encourage and provide for their good design through land-use regulation. Design standards can be included in the planned community ordinance, where they function as one of the standards local governments consider when they review planned community projects. Such standards in planned community ordinances present a different legal problem than design standards in advisory plans, guidelines, and manuals. Design standards in ordinances are regulatory, and compliance with these standards is a condition to project approval. A constitutional problem may arise, however, if the design standards contain qualitative terms such as “harmonious,” “creative,” or “innovative,” which courts may find unconstitutionally vague.

There is no way around the constitutionality problem if only words are used to set forth a standard because all descriptive words are ambiguous and indeterminate. There is no language “fix” that can solve this problem. This chapter provides examples of design standards that use indeterminate terms that may make the standards vulnerable to constitutional objection. Selecting these standards for discussion was done intentionally, partly because plans, guidelines, and manuals can help give meaning to indeterminate standards, and partly because the constitutional objections are not as serious as many imagine. At the same time, local governments may not opt out of this problem by declining to have any standards for planned communities. A review without standards of planned community projects is an unconstitutional delegation of legislative power.

The Constitutionality of Design Standards in Planned Community Regulations

This is the fifth chapter in a book, Designing Planned Communities (2010), that reviews the concepts and ideas that go into the design of planned communities, and explores how local governments can encourage and provide for their good design through land-use regulation. Design standards in planned community regulations can raise constitutional problems because a court can hold them unconstitutionally vague or an unconstitutional delegation of legislative power. This problem occurs especially with planned community regulations that contain indeterminate design standards, such as equirements that a planned community’s design be “creative” or “harmonious.” The judicial record on the constitutional issues is mixed. Some courts have struck down stand-alone design standards that are not part of a comprehensive program for regulating planned communities, but some have not. Courts have upheld design standards when they are one element in a program of planned community regulation. Even when the courts have struck down design standards, they have provided drafting guidelines that can avoid constitutional problems.

Jim K.

http://lawprofessors.typepad.com/land_use/2012/06/mandelkers-designing-planned-communities.html

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