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Chapter 2. Design Review 19
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<br /> instance,many homeowners associations,which are established to oversee
<br /> ill the maintenance and upkeep of private residential communities, exercise
<br /> broad powers over any architectural changes to structures owned by their
<br /> members (Mallett 1998). In addition, developers of corporate franchises,
<br /> Developers of corporate
<br /> :i such as drug stores,fast-food restaurants,and gas stations,are recognizing franchises,such as drug stores,
<br /> that more demure building design and better site plans often translate into fast-food restaurants,and gas
<br /> better neighborhood relations, and thus increased business. stations,are recognizing that
<br /> Design review outside histone areas poses many of the same legal and more demure building design
<br /> practical challenges as protecting historic structures. However,experience and better site plans often
<br /> 1 demonstrates that careful planning and legal draftsmanship,coupled with translate into better
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<br /> a strong commitment to common-sense implementation and consistent neighborhood relations,and
<br /> administration,can do much to make design review work. thus increased business.
<br /> iLegal Aspects
<br /> Design review programs outside historic areas tend not to raise takings
<br /> issue questions because they are generally geared not toward stopping a
<br /> project or greatly reducing its size,but more toward ensuring compatibil-
<br /> ity with surrounding structures and controlling details such as building
<br /> $ appearance or pedestrian flow. Rarely will conditions imposed to achieve
<br /> 7 design goals create an absolute economic deprivation.
<br /> i Instead, assuming a locality has been granted sufficient power by state
<br /> statute,home rule,or other authority to regulate design of projects outside
<br /> historic areas, the key legal issues revolve around the standards and pro-
<br /> fcedures used for design review, and whether they are consistent with due
<br /> 1 process. The common-sense test used by courts to evaluate contested pro-
<br /> visions in such cases is simply whether the standard or review criterion is
<br /> i sufficiently clear such that a person of ordinary intelligence can under-
<br /> • stand what it means.
<br /> The old design review provisions (recently redrafted) from Henderson,
<br /> iNevada, for example, would have been a prime candidate for a court chal-
<br /> j lenge on these grounds.The regulations noted that an application could fail
<br /> t architectural review if the planning director finds:". ..the building alteration
<br /> or addition so unsightly,undesirable,or obnoxious in appearance or function
<br /> as to result in substantial depreciation of value of adjacent properties,... [or]
<br /> to substantially deter adjacent property owners from maintaining their prop-
<br /> erty." Given the tremendous subjectivity granted the planning director by Generally,design review cases
<br /> this standard, the person of ordinary intelligence could be expected to have from nonhistoric areas that
<br /> difficulty understanding what alterations or additions would be acceptable. have reached the courts fall
<br /> into two categories:those in
<br /> Generally,design review cases from nonhistoric areas that have reached which the local standards
<br /> the courts fall into two categories: those in which the local standards re- require compatibility of new
<br /> quire compatibility of new projects with existing development, and those projects with existing
<br /> that require distinctiveness, aimed at preventing monotonous, "cookie- development,and those that
<br /> i cutter" development. In some instances, local ordinances include both require distinctiveness,aimed
<br /> types of requirements (see,for example, Old Farm Road,Inc. v. Town of New at preventing monotonous,
<br /> Castle, 259 N.E.2d 217(N.Y. 1970)). "cookie-cutter"development.
<br /> One of the earliest aesthetic regulation cases involved a compatibility
<br /> i ordinance enacted by Fox Point, Wisconsin, an upper-income Milwaukee
<br /> ! suburb (Gates ex rel. Saveiand Park Holding Co. v. Wieland, 69 N.W.2d 217
<br /> (Wisc. 1955), cert. denied 350 U.S. 841 (1955)).The ordinance established a
<br /> board that could not issue building permits unless:
<br /> 1 . . . the exterior architectural appeal and functional plan of the pro-
<br /> posed structure will, when erected, not be so at vanance with either
<br /> • the exterior architectural appeal and functional plan of the structures
<br /> 1 already constructed . .in the unmediate neighborhood or the charac-
<br /> ter of the applicable[zoning]district.. so as to cause a substantial de-
<br /> 1 predation of property value in the neighborhood.
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