Tuesday, May 29, 2012
Daniel Mandelker (Washington University in Saint Louis) has posted a number of chapters from his book on design standards in planned communities. The latest contribution is The Constitutionality of Design Standards in Planned Community Regulations. Here's the abstract:
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 requirements 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. The entire book can be downloaded by going to the author's profile on Washington University Law School's website.