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Aesthetic Control: A Report on Methods Used in the USA to Control the Design of Buildings
IntroductionThis is the second report resulting from my tenure of a Nuffield and Leverhulme Travelling Fellowship in 1989-90. Both reports are published by IURD at Berkeley. They are written from the perspective of a British visitor to the US, and one who has spent most of his career at the Department of the Environment and in the fields of land-use planning policy and administration. Thirty years ago I had a similar Fellowship, in 1959-60 at Harvard, that led to the publication of my book Land Use Controls in the USA (MIT Press, Second Edition 1969).My first report, Development Impact Fees and Other Devices, deals with the methods used in the USA for reallocating the costs of development infrastructure (roads, water, sewerage, parks, and other community facilities) between the public and private sectors. The present report on Aesthetic Control reviews the methods used in America to control the design of buildings. Originally I saw these as two quite distinct topics, but in fact they both bear on the same theme -- the relationship between private and public interests in development. In both cases we are concerned with the extent to which the process of private development should be guided, conditioned or controlled for the public benefit. Both countries attempt to do this, but the motivation is different. In Britain it seems often to be assumed that new development is inherently detrimental and to be prevented or restricted so far as possible. In America development is generally recognized as potentially beneficial, and public policy is directed at mitigating its costs and enhancing its benefits. I prefer the more positive approach. Both of my reports are intended to illustrate it.For most people in our country, "planning" has two functions. One is to decide where development should or should not take place; and the other is to control its design or appearance. It is therefore perhaps surprising that the word "design" is not to be found in the Planning Acts.* Nor are the terms "aesthetic control," "design," or "external appearance" included in the index to Butterworth's 760-page Planning Law Handbook or in Malcolm Grant's 728-page tome Urban Planning Law. Perhaps the whole thing is an illusion, despite the fact that teh Department of the Environment and its predecessors from the 1930s onwards have issued copious policy advice on the subject? But that cannot be so, since it has been estimated that about a third of all planning appeals involve matters of design, as either a primary or secondary consideration.Research by the Centre for Environmental Research at Sheffield (1981) found that at least 50 percent of planning permissions included conditions relating to design (that report defines "design" rather widely to include landscaping and site layout as well as architectural treatment). In practice, aesthetic control evidently forms a large part of the planning process. Indeed, planning is often blessed for falling to prevent poor design and architects criticize planning for attempting to do so. HRH the Prince of Wales, in A Vision of Britain, blames both planners and architects for what he dislikes.So far as I know, there is no book, American or British, that deals with the subject in a comprehensive manner. Indeed, I found that very little has been written on the subject, and this accounts for the lack of footnotes or bibliography in this report, although I include a few references in the text. John Punter's three-volume research study The Control of External Appearance of Development in England and Wales provided a detailed history from 1909 to 1984, and I draw on it freely in Chapter 8. But it is concerned with policy rather than methods, and does not touch the American scene. In considering how to approach this elusive topic, I decided to look for raw material in the form of controls, regulations, or "codes," This was partly because, as an ancient administrator, I take the view that there is no policy unless it can be written down. Also because the American planning system relies almost entirely on written rules or regulations that are in the public domain. And thirdly because the Prince of Wales has told us that "a civilized and harmonious existence depends upon the observance of sensitive rules. Without them there is chaos." If that is the message, one should examine the media.I now summarize the structure and content of this report. Chapter 1 explains briefly the constitutional and legal context that governs aesthetic control in the US. While the American Supreme Court has ruled that such controls need not infringe the constitutional provisions regarding freedom of speech, the fact that the question has been raised should give pause for thought. Chapter 2 takes a close look at Seaside, the coastal development in Florida that is held out to us in A Vision of Britain as a model of what can be achieved by the adoption of an "Urban Code," I confess that I went to Seaside in a skeptical frame of mind but was left with something to think about, which I followed up in later stages of our itinerary.Chapters 3 to 7 deal with various methods and examples of aesthetic control, from the prescriptive form found in zoning ordinances and restrictive covenants to the much more creative style of what I have called "mandatory guidelines." Chapter 6 is in many ways the core of the report and consists of short case studies of aesthetic control in three American cities -- San Francisco and San Diego in California, and Portland, Oregon. Somewhat contrary to my expectations, I found a good deal to admire here.Chapter 8 reviews the course of aesthetic control in Britain from the Town and Country Planning Acts of 1909 to 1990. For reasons that I explain, I entitle this "The Enduring Ambivalence."Finally, Chapter 9 offers my assessment and conclusions. It was not until I was completing this final chapter that I learnt of the important statement on design that the Secretary of State had made on 6 March 1990 and of his initial response of 5 June to the publication by the Royal Fine Art Commission of the booklet by Judy Hillman on Planning for Beauty. I take account of those comments, but I also venture to offer some suggestions for future developments in policy and practice.A great difficulty in dealing with questions of design and aesthetic control is the poverty of language (English or American) in which to express such values or objectives. The best American examples overcome this to some extent by very careful and sensitive analysis of the qualities and characteristics that distinguish particular districts or neighborhoods and by relating any specific objectives or controls to those distinctive features. In the course of my work I assembled a large collection of plans, regulations, and guidelines that illustrate these methods. Obviously it is not practical to reproduce them in full, although I quote extensively from them in the course of the report. I have deposited these materials in the Doe library.In conclusion I must express my thanks once again to the Institute of Urban and Regional Development at the University of California at Berkeley, and to the Department of City and Regional Planning at Chapel Hill, University of North Carolina, where much of my work was done, and tot he City Planning Directors, developers, and others who helped me in the course of our travels. The subject of this report is one that cannot be studied except by travelling to see for oneself. It is an enlightened institution that I hope will always continue to afford that opportunity to civil servants at various stages in their career, including those (like myself) who are nearing retirement and who can join their knowledge of policy and administration to the inestimable benefits of new experience.J.D.Department of Land Economy19 Silver StreetCambridgeEnglandNovember 1990Note: The contents of this report are the responsibility of the author and do not necessarily reflect the views of the Department of the Environment. It is published with the Department's permission as a contribution to debate on the subject
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Development Impact Fees and Other Devices
IntroductionThis report deals with the methods that have been evolved in the USA for reallocating the costs of development infrastructure (roads, water supply, and other facilities) between the public and private sectors.In the past it has been assumed that the public sector should meet most of these costs, recouping them by means of general and local taxation and user charges. In both America and the UK, housebuilders and other developers have generally been expected to provide on-site services (local estate roads, link-up to mains water and drainage, car parking ,etc.), but the public sector has been responsible for off-site provision -- major roads, water supply, sewerage, and a range of other physical infrastructure and community facilities. But it is not inevitable that all of these costs should be met by the public sector. It can be argued that there is a good case for those costs being met, at least in part, by the landowners, developers, and employers who will benefit from them.The problem is to find practical and consistent methods of allocating those costs and of requiring developers and others to meet them or to provide the necessary facilities themselves. In the UK there has been some movement in this direction in recent years, mainly by means of planning agreements under Section 52 of the Town and Country Planning Act 1971.* Such agreements have been limited in extent and not applied in any comprehensive or consistent manner. The Water Act 1989 introduced provisions enabling water companies to levy charges towards the capital cost of new installations, and there are provisions concerning highways in earlier legislation. But there has been no general application of the principle that "the developer pays." In the USA, on the other hand, there has been a long tradition of requiring developers to provide roads, parks, local school sites, and various other facilities within their developments.In recent years this type of requirement has been extended to a wider range of purposes (e.g. traffic lights, school buildings). Smaller developers can make payments in lieu of actual provision. But many American cities and counties have gone well beyond much on-site requirements. In these cities, developers are now expected to contribute towards the costs of off-site roads, bridges, intersections, water mains and sewerage, storm water drainage, high schools, major open space, public car parking, libraries -- even "law and order." some cities have extended the concept so as to require office developers to contribute to the provision of public transport (mass transit), low-cost housing, and child-care facilities.Various novel methods have been developed for achieving this. The most widespread is the concept of "development impact fees," which prescribe a standard scale of charges for new development. There is a variety of other fiscal devices for similar purposes. In addition, some cities are making extensive use of "Development Agreements" which, instead of standard fees, rely on negotiated agreements with individual developers. Some local governments use all these methods, and new measures are constantly being devised.This is what this report is about. I now briefly summarize its structure and content.Part One deals in detail with development impact fees, since this is the most widely used method of charging developers for the costs of the infrastructure needs that their development generates. Chapter 1 explains the concept of impact fees and illustrates their use. This is intended as an "appetizer" for what follows. Its intention is to explain the context within which impact fees and similar devices have evolved, the scale and pace of development, and the changing climate of local government finance. The miscellaneous information that it displays is drawn from a wide variety of sources, from scholarly books to newspaper cuttings. It is impressionistic and serves to demonstrate that, while much of the language of land-use planning in America will be familiar to the British reader, the context within which it operates is something different.Chapters 3 to 6 are the meat of Part One. In these chapters I set out the concept of impact fees as it has developed in the somewhat demanding judicial atmosphere that prevails in most states, where the Courts are very protective of private property rights and tend to take a cautious view of fiscal and regulatory innovations. To safeguard against the risk of successful legal challenge, the proponents of impact fees have adopted a belt-and-braces approach, and the result is a distinctly complex and demanding process for devising and validating impact fees. It is necessary to set out the lineaments of the system in this fairly detailed manner, as it provides the basis from which a somewhat simpler approach could be developed. It was reassuring to find that in California, where impact fees originated and are most widely used, the courts have taken a less rigorous approach to impact fees. Provided they can be satisfied that appropriate legislative or regulatory powers exist for the purpose, that the fees adopted have a rational basis and are reasonable in relation to the relevant expenditure, and that they are administered in a consistent and equitable manner, they do not demand an unrealistic degree of precision in the methods of calculation and attribution. I think that in the UK our approach would be similar, but it is useful to be aware of the more theoretical formulation.Chapter 7 indulges in a digression housing, suggesting that the costs of infrastructure and the level of fees could be moderated if Americans were less prodigal in their use of land and applied more effectively what they know about land-use planning or, in their terms, "growth management" (which can mean either facilitating or restricting development). There is more about housing in Part Two.Part One concludes with a case study of Raleigh, North Carolina, and its recent experience in introducing an impact fees system.Part Two of the report reviews more briefly a a variety of other methods, both traditional and novel, of exacting or soliciting contributions from developers to the provision of infrastructure and community facilities.I deal first with the longest established forms of developer contributions: those implemented through traditional subdivision regulations. Secondly I deal with "contract zoning," another adaptation of a traditional regulatory system, which relates to variances granted to exchange for some undertaking given by the developer. I then consider the much more recent "linkage programmes," which are in some respects similar to impact fees but where the concept has been extended beyond what is normally regarded as infrastructure to include the provision by office developers of low-cost housing -- and child-care facilities. I describe separately arrangements that require housebuilders to include a proportion of low-cost housing to their projects or, more often, offer zoning incentives to do so. I include a short note on excise taxes as an alternative to impact fees. I explain the concept of the Special Assessment District, where a supplementary local tax is levied on occupiers in a specific area to pay for services that benefit solely that area. This mechanism has been extended in some states to facilitate developments on the scale of a new town, and I describe the Florida legislation. I deal more fully with the scope for negotiated agreements with developers, which are favoured by many experienced local government officials and major developers, as it is a much more flexible method and offers more scope for the exercise of negotiating skills on both sides than a standard fees scale. I describe the Californian legislation. In Chapter 8 I deal with various methods used in California to finance transportation systems. Chapter 7, on Development Agreements, is particularly relevant to the US situation and the possible reform of Section 52/1971.All these methods are in use in the US, and they demonstrate that a developer is pursuing his project usually needs the co-operation of the local authority and other bodies, both in securing his building permit and in ensuring that his development is adequately serviced. He may prefer a predictable scale of fees and to know in advance that will be required of him; but he may also be prepared to negotiate a higher contribution, especially if he needs a higher standard of provision or seeks higher priority among competing projects.Part Three provides a general assessment of what has gone before, and offers some conclusions on its relevance to the US and a possible legislative approach to recasting Section 52 to provide for both Development Agreements and Developer Contributions in a form compatible with UK conditions.In conclusion, I should emphasize that this is not a work of scholarship and therefore lacks entirely the scholarly apparatus of footnotes and bibliography. I have freely pillaged (but I hope not plagiarized) a wide range of materials generally without acknowledgement. But, so far as I am aware, there is no single publication that deals with all the varieties of systems described in this report. It is, of course, written by a visitor to the US and from a British perspective. But in my own experience it is always interesting to see how someone from another country describes processes with which one is familiar: even their errors and omissions can prove instructive.The work on this report was done during my tenure of a Nuffield and Leverhulme Travelling Fellowship in 1989-90 while on secondment from the Department of the Environment. I readily record my appreciation of the Fellowship programme, which affords the opportunity to those in government service to combine their experience of practical administration with the benefits of new experience. In the course of my fellowship I prepared a second report on Aesthetic Control: methods used in the USA to control the design of buildings. Both reports are being published by IURD, and both deal with the relationship between public and private interests in the development process.Although I cannot attempt here to acknowledge all those who have helped me in the course of this study -- academic colleagues, developers, realtors, homebuilders, city, county, state, and federal officials, and many others -- I must express my thinks to my two main hosts, Professor Michael Stegman, Director of the Department of City and Regional Planning at the University of North Carolina at Chapel Hill, and Professor Peter Hall, Director of the Institute of Urban and Regional Development in the University of California at Berkeley. I worked for several weeks at both of these institutions and had every assistance from them. I must also thank Dr. Derek Nicholls, the Director of the Department of Land Economy at Cambridge University in England, where I now enjoy similar facilities.Finally, I should record that the contents of this report are the author's responsibility and do not necessarily reflect the view of the Department of the Environment. It is published with the Department's permission as a contribution to debate on the subject.J.D. November 1990 Department of Land Economy CAMBRIDGE CB3 9BP Englan
Recommended from our members
Development Impact Fees and Other Devices
IntroductionThis report deals with the methods that have been evolved in the USA for reallocating the costs of development infrastructure (roads, water supply, and other facilities) between the public and private sectors.In the past it has been assumed that the public sector should meet most of these costs, recouping them by means of general and local taxation and user charges. In both America and the UK, housebuilders and other developers have generally been expected to provide on-site services (local estate roads, link-up to mains water and drainage, car parking ,etc.), but the public sector has been responsible for off-site provision -- major roads, water supply, sewerage, and a range of other physical infrastructure and community facilities. But it is not inevitable that all of these costs should be met by the public sector. It can be argued that there is a good case for those costs being met, at least in part, by the landowners, developers, and employers who will benefit from them.The problem is to find practical and consistent methods of allocating those costs and of requiring developers and others to meet them or to provide the necessary facilities themselves. In the UK there has been some movement in this direction in recent years, mainly by means of planning agreements under Section 52 of the Town and Country Planning Act 1971.* Such agreements have been limited in extent and not applied in any comprehensive or consistent manner. The Water Act 1989 introduced provisions enabling water companies to levy charges towards the capital cost of new installations, and there are provisions concerning highways in earlier legislation. But there has been no general application of the principle that "the developer pays." In the USA, on the other hand, there has been a long tradition of requiring developers to provide roads, parks, local school sites, and various other facilities within their developments.In recent years this type of requirement has been extended to a wider range of purposes (e.g. traffic lights, school buildings). Smaller developers can make payments in lieu of actual provision. But many American cities and counties have gone well beyond much on-site requirements. In these cities, developers are now expected to contribute towards the costs of off-site roads, bridges, intersections, water mains and sewerage, storm water drainage, high schools, major open space, public car parking, libraries -- even "law and order." some cities have extended the concept so as to require office developers to contribute to the provision of public transport (mass transit), low-cost housing, and child-care facilities.Various novel methods have been developed for achieving this. The most widespread is the concept of "development impact fees," which prescribe a standard scale of charges for new development. There is a variety of other fiscal devices for similar purposes. In addition, some cities are making extensive use of "Development Agreements" which, instead of standard fees, rely on negotiated agreements with individual developers. Some local governments use all these methods, and new measures are constantly being devised.This is what this report is about. I now briefly summarize its structure and content.Part One deals in detail with development impact fees, since this is the most widely used method of charging developers for the costs of the infrastructure needs that their development generates. Chapter 1 explains the concept of impact fees and illustrates their use. This is intended as an "appetizer" for what follows. Its intention is to explain the context within which impact fees and similar devices have evolved, the scale and pace of development, and the changing climate of local government finance. The miscellaneous information that it displays is drawn from a wide variety of sources, from scholarly books to newspaper cuttings. It is impressionistic and serves to demonstrate that, while much of the language of land-use planning in America will be familiar to the British reader, the context within which it operates is something different.Chapters 3 to 6 are the meat of Part One. In these chapters I set out the concept of impact fees as it has developed in the somewhat demanding judicial atmosphere that prevails in most states, where the Courts are very protective of private property rights and tend to take a cautious view of fiscal and regulatory innovations. To safeguard against the risk of successful legal challenge, the proponents of impact fees have adopted a belt-and-braces approach, and the result is a distinctly complex and demanding process for devising and validating impact fees. It is necessary to set out the lineaments of the system in this fairly detailed manner, as it provides the basis from which a somewhat simpler approach could be developed. It was reassuring to find that in California, where impact fees originated and are most widely used, the courts have taken a less rigorous approach to impact fees. Provided they can be satisfied that appropriate legislative or regulatory powers exist for the purpose, that the fees adopted have a rational basis and are reasonable in relation to the relevant expenditure, and that they are administered in a consistent and equitable manner, they do not demand an unrealistic degree of precision in the methods of calculation and attribution. I think that in the UK our approach would be similar, but it is useful to be aware of the more theoretical formulation.Chapter 7 indulges in a digression housing, suggesting that the costs of infrastructure and the level of fees could be moderated if Americans were less prodigal in their use of land and applied more effectively what they know about land-use planning or, in their terms, "growth management" (which can mean either facilitating or restricting development). There is more about housing in Part Two.Part One concludes with a case study of Raleigh, North Carolina, and its recent experience in introducing an impact fees system.Part Two of the report reviews more briefly a a variety of other methods, both traditional and novel, of exacting or soliciting contributions from developers to the provision of infrastructure and community facilities.I deal first with the longest established forms of developer contributions: those implemented through traditional subdivision regulations. Secondly I deal with "contract zoning," another adaptation of a traditional regulatory system, which relates to variances granted to exchange for some undertaking given by the developer. I then consider the much more recent "linkage programmes," which are in some respects similar to impact fees but where the concept has been extended beyond what is normally regarded as infrastructure to include the provision by office developers of low-cost housing -- and child-care facilities. I describe separately arrangements that require housebuilders to include a proportion of low-cost housing to their projects or, more often, offer zoning incentives to do so. I include a short note on excise taxes as an alternative to impact fees. I explain the concept of the Special Assessment District, where a supplementary local tax is levied on occupiers in a specific area to pay for services that benefit solely that area. This mechanism has been extended in some states to facilitate developments on the scale of a new town, and I describe the Florida legislation. I deal more fully with the scope for negotiated agreements with developers, which are favoured by many experienced local government officials and major developers, as it is a much more flexible method and offers more scope for the exercise of negotiating skills on both sides than a standard fees scale. I describe the Californian legislation. In Chapter 8 I deal with various methods used in California to finance transportation systems. Chapter 7, on Development Agreements, is particularly relevant to the US situation and the possible reform of Section 52/1971.All these methods are in use in the US, and they demonstrate that a developer is pursuing his project usually needs the co-operation of the local authority and other bodies, both in securing his building permit and in ensuring that his development is adequately serviced. He may prefer a predictable scale of fees and to know in advance that will be required of him; but he may also be prepared to negotiate a higher contribution, especially if he needs a higher standard of provision or seeks higher priority among competing projects.Part Three provides a general assessment of what has gone before, and offers some conclusions on its relevance to the US and a possible legislative approach to recasting Section 52 to provide for both Development Agreements and Developer Contributions in a form compatible with UK conditions.In conclusion, I should emphasize that this is not a work of scholarship and therefore lacks entirely the scholarly apparatus of footnotes and bibliography. I have freely pillaged (but I hope not plagiarized) a wide range of materials generally without acknowledgement. But, so far as I am aware, there is no single publication that deals with all the varieties of systems described in this report. It is, of course, written by a visitor to the US and from a British perspective. But in my own experience it is always interesting to see how someone from another country describes processes with which one is familiar: even their errors and omissions can prove instructive.The work on this report was done during my tenure of a Nuffield and Leverhulme Travelling Fellowship in 1989-90 while on secondment from the Department of the Environment. I readily record my appreciation of the Fellowship programme, which affords the opportunity to those in government service to combine their experience of practical administration with the benefits of new experience. In the course of my fellowship I prepared a second report on Aesthetic Control: methods used in the USA to control the design of buildings. Both reports are being published by IURD, and both deal with the relationship between public and private interests in the development process.Although I cannot attempt here to acknowledge all those who have helped me in the course of this study -- academic colleagues, developers, realtors, homebuilders, city, county, state, and federal officials, and many others -- I must express my thinks to my two main hosts, Professor Michael Stegman, Director of the Department of City and Regional Planning at the University of North Carolina at Chapel Hill, and Professor Peter Hall, Director of the Institute of Urban and Regional Development in the University of California at Berkeley. I worked for several weeks at both of these institutions and had every assistance from them. I must also thank Dr. Derek Nicholls, the Director of the Department of Land Economy at Cambridge University in England, where I now enjoy similar facilities.Finally, I should record that the contents of this report are the author's responsibility and do not necessarily reflect the view of the Department of the Environment. It is published with the Department's permission as a contribution to debate on the subject.J.D. November 1990 Department of Land Economy CAMBRIDGE CB3 9BP Englan