Zoning Practice — August 2009

Ask the Author

Here are reader questions answered by James Brindell, author of the July 2009 Zoning Practice article "Regulating the Architectural Character of a Community."

Question from Patrick Fahey:

You discuss the idea of a "catalogue of acceptable and unacceptable styles, elements, materials, massing", etc., to give the required clear guidance to designers and property owners. Such a catalogue or design manual would appear to best belong outside the zoning ordinance itself. Would you see any specific issues with having this information as a "stand-alone" document to provide that guidance and also to attempt to set forth the community's positions on some of the more subjective aspects of design review?

Reply from Author Jim Brindell:

Your questions raise procedural and legal authority issues. Do the catalogues set absolute boundaries, or are they community preferences, subject to individual applicants making a case for a style or design elements which are outside of, or which conflict with, the catalogues?

If the latter is the case, then the catalogues are more in the nature of guidelines, and "adopting" them outside an ordinance is less subject to an attack on the grounds that the adoption did not meet the requirements for establishing standards (i.e., the ordinance adoption process). This latter situation would be more likely to support "adoption" by a non-elected architectural board, assuming there is legal authority to delegate such responsibility to such a board.

If the former is the case, then having the governing body adopt them by ordinance would be the more prudent course of action.

In either case, the catalogues and other explanatory materials which express community objectives and preferences should be part of the application materials and not be documents about which an applicant needs to be astute enough to ask.